United States

Alison Frankel

Feb 17 2017

SEC gives fuel to Icahn in malpractice battle with Wachtell

The Securities and Exchange Commission issued an unusual order this week to wrap up its investigation of CVR Energy, the fuel refiner Carl Icahn acquired in a hostile tender offer in 2012. The SEC concluded that CVR failed to give investors enough information about its fee agreement with the two investment banks it hired to help the company fend off Icahn’s takeover. CVR, according to the SEC, should have said in its SEC filings that the banks, Goldman Sachs and Deutsche Bank, would be due a lavish success fee even if Icahn won control of the company.

Feb 16 2017

4th Circuit: DOJ has absolute veto power over False Claims Act settlements

Can the Justice Department force whistleblowers and defendants to keep litigating a False Claims Act case the government has declined to join, even when both whistleblowers and defendants want to settle? The 4th U.S. Circuit Court of Appeals ruled this week that it can.

Feb 15 2017

Decoding Gorsuch’s picks for his 10 ‘most significant’ opinions

In the past 25 or so years, since the infamous U.S. Senate debates on Robert Bork in 1987 and Clarence Thomas in 1991, confirmation hearings for U.S. Supreme Court justices have not been an exercise in enlightenment. You know how these things go: Senators grandstand and nominees display their superior intellects while politely (and often wittily) refusing to disclose anything even faintly controversial. I’m sure Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals will face angry questions from Senate Democrats about President Trump’s disdainful assessment of the federal judiciary, but I doubt we will learn anything substantive about Gorsuch’s judicial priorities.

Feb 14 2017

From Delaware Supreme Court, an anti-Valentine’s Day tale

Philip Shawe and Elizabeth Elting were sharing a dorm room at New York University’s business school when they cofounded TransPerfect, a translation and litigation services company, in 1992. As the company took off – it now employs 3,500 people in 92 offices around the world – their love deepened. Shawe and Elting got engaged in 1996.

Feb 13 2017

The most intriguing idea in House Republicans’ bill to gut class actions

Most of the proposed procedural rule changes in Representative Bob Goodlatte’s “Fairness in Class Action Litigation Act of 2017,” introduced last week in the House of Representatives, are directly traceable to the business lobby’s anti-class-action talking points. Goodlatte - a Virginia Republican and chair of the House Judiciary Committee - has significantly expanded the changes he proposed last year in a similarly named bill that was approved in the House but died in the Senate. If Congress adopts Goodlatte’s bill in anything like its current form, class actions and MDLs will be a shadow of what we know today.

Feb 10 2017

9th Circuit to Trump: Rhetoric matters

In its historic opinion upholding a stay on the Trump administration’s immigration and refugee policy, the 9th U.S. Circuit Court of Appeals did not rely on Washington State’s argument that the policy violates the Constitution because it discriminates against Muslims.

Feb 09 2017

4th Circuit adds to confusion on standing in privacy class actions

The 4th U.S. Circuit Court of Appeals held Wednesday that victims’ standing to sue over the theft of their personal data depends on the intent of the thieves who stole it.

Feb 08 2017

CFPB signals regulation of litigation funding industry

The genius of the litigation funding business was always that it fell between regulatory cracks. In broad terms, pre-settlement funders advanced cash to plaintiffs waiting for a litigation payout in exchange for the right to collect when the settlement money comes through. They could demand payback rates that would be considered usurious if the cash advances were loans – but funders carefully structure their contracts with plaintiffs so the advances are technically not loans. That way, litigation funders could avoid state banking and credit regulations.

Feb 07 2017

Boston federal judge puts Labaton, Lieff on the hot seat in fee review

Last November, U.S. District Judge Mark Wolf of Boston signed an order approving a fee award of nearly $75 million to the plaintiffs' firms that wrested a $300 million settlement from State Street Bank in a class action alleging the bank overcharged customers with custodial accounts for foreign exchange trades. Then a reporter at the Boston Globe started asking questions about the particulars of the billing records those firms submitted to support their fee request.

Feb 06 2017

In Trump appeal of immigration ruling, a battle over court’s authority

The U.S. judiciary is the only branch of our government that frequently restricts its own power. The constitutional system of checks and balances requires the courts to decide when Congress or the president is overreaching. But no one tells the justices of the U.S. Supreme Court, who are appointed for life, that they’re exceeding their constitutional power (except other justices). The system depends on judges acting judiciously.

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