United States

Alison Frankel

Jan 13 2017

9th Circuit Apple antitrust ruling splits with 8th, is boon to consumers

If music fans want to see a show at a major concert venue, they have just about no choice but to buy tickets through Ticketmaster, which has exclusive ticket distribution contracts with virtually every concert promoter in the country. Similarly, if iPhone owners want to purchase an app, they must buy through Apple’s App Store. Apple doesn’t allow app developers to sell iPhone apps through any other platform. Ticketmaster and Apple are the toll-keepers of their markets.

Jan 12 2017

Jeff Sessions’ promises

Jeff Sessions, the longtime U.S. senator from Alabama and likely next attorney general of the United States, said all the right things at his Senate confirmation hearing this week. He assured the Judiciary Committee of his reverence for the Constitution and commitment to the rule of law. He pledged “fairness, impartiality and equal justice.” He promised not to be “a mere rubberstamp,” avowing that he – like any man or woman who holds the office of attorney general – “must be willing to tell the president ‘no’ if he overreaches.”

Dec 28 2016

10th Circuit strikes down SEC ALJ regime, debates reach to other agencies

It looks like the U.S. Supreme Court may have to decide whether the Securities and Exchange Commission’s five administrative law judges were unconstitutionally appointed to their jobs. Is the entire ALJ regime – which includes 1,792 judges across a plethora of federal agencies – now at risk?

Dec 27 2016

David Boies on Halliburton’s end: remembering a daughter and a disaster that wasn’t

Caryl Boies first got involved in a securities class action against the oilfield giant Halliburton back in 2006, after the lead plaintiff in the case, a Milwaukee pension fund, got wind that lawyers for the class were negotiating a settlement without the fund’s consent. Class counsel proposed a $6 million deal to end the case. The Milwaukee fund proposed ditching class counsel William Lerach. In 2007, U.S. District Judge Barbara Lynn of Dallas granted the motion to substitute Boies Schiller & Flexner – where Caryl Boies was a partner alongside her father, firm founder David Boies - as lead counsel in the Halliburton securities class action.

Dec 22 2016

Even Carl Icahn can’t sink administrative ship of state

Carl Icahn, the billionaire investor appointed to serve as President-elect Donald Trump’s regulatory czar, believes overregulation is strangling American businesses. “Business owners have been crippled by over $1 trillion in new regulations and over 750 billion hours dealing with paperwork,” Icahn said in the Trump press release announcing his appointment. “It’s time to break free of excessive regulation and let our entrepreneurs do what they do best: create jobs and support communities.”

Dec 21 2016

In SCOTUS sanctions case, defiant plaintiffs argue Goodyear got what it deserved

Here’s an interesting way to brief your case at the U.S. Supreme Court: Instead of engaging in arcane tit-for-tat on the legal question the justices took the case to decide, tell the justices that the question your opponent posed is a red herring and that the facts of the case are all that really matter.

Dec 20 2016

Key question of Slants case at SCOTUS: Is trademark registration speech? If so, whose?

These are fraught and unsettled times when it comes to racially and culturally offensive speech in America, so I suppose it’s no surprise that an awful lot of groups have strong feelings about Lee v. Tam, the U.S. Supreme Court case that will decide the First Amendment constitutionality of the federal law prohibiting the registration of disparaging trademarks.

Dec 19 2016

In new appraisal opinion, Delaware judge tries to calm M&A bar

The Dec. 16 opinion in Merion Capital v. Lender Processing Services is 75 pages long, with many of those pages dedicated to a detailed recounting of the years-long process that led to Fidelity’s 2014 acquisition of the mortgage services company Lender Processing for $37.14 per share, or about $2.9 billion. You’d be forgiven, in other words, if you didn’t read all the way to the end.

Dec 19 2016

Defendants can’t undo class settlement even if underlying law changes - 6th Circuit

In the 6th U.S. Circuit Court of Appeals, a class action deal is a deal.

Dec 15 2016

Gibson Dunn to Delaware Supreme Court: Fix arbitrary, imprecise appraisal rulings

Chancellor Andre Bouchard of Delaware Chancery Court is, without question, a very smart man. But even the very smartest people occasionally make mistakes. The chancellor made one when he first calculated a discounted cash flow value for the payday lender DFC Global in an appraisal action by DFC shareholders protesting the company’s $9.50 per share sale in 2014 to Lone Star Capital, a private equity firm. Bouchard made a single clerical error that led him to peg DFC’s fair value at $10.21 per share.


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