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Alison Frankel

6th Circuit judge (and SCOTUS short-lister) calls for end to Auer deference

3:14pm EDT

Last March, in a little-noticed dissent from the denial of U.S. Supreme Court review in Garco Construction v. Speer, Justice Clarence Thomas said the court’s 1997 precedent in Auer v. Robbins (117 S.Ct. 905) is primed for reconsideration. Auer, in case you’ve forgotten, requires courts to defer to executive agencies’ interpretations of their own rules and regulations. As Justice Thomas chronicled in his Garco dissent, that principle has in recent years taken a beating in concurrences written by Thomas, Chief Justice John Roberts and Justice Samuel Alito. Justice Neil Gorsuch joined Thomas’ dissent, signaling his eagerness to rethink Auer deference. In all, Thomas posited, the line of cases culminating in Auer precedent “is on its last gasp.”

Google wants Supreme Court to hear Oracle copyright case – just not quite yet

Oct 22 2018

The billion-dollar copyright war between Google and Oracle has arrived at the U.S. Supreme Court. Sort of.

On The Case: A podcast by Alison Frankel

Sep 06 2018

The First Amendment, gun litigation, President Donald Trump's impact on the judiciary: The hurricane of daily legal news seems to never let up. A new podcast series from Reuters columnist Alison Frankel goes right into the eye of the storm, talking about law and precedent with experts who know their stuff inside and out.

Mo. top court: Consumer lender can’t rewrite arbitration clause to avoid class action

Oct 18 2018

When Meeka Hunter borrowed $800 from a personal lender known as King of Kash in 2006, she signed contracts that included a provision requiring her to arbitrate any disputes before the National Arbitration Forum. That’s what the agreements said: Any dispute, including a class action claim by Hunter, was to be “resolved by binding arbitration by the National Arbitration Forum.”

1st Circuit: No class certification if you can’t weed out uninjured class members

Oct 17 2018

In its Oct. 15 opinion in In re Asacol (2018 WL 4958856) the 1st U.S. Circuit Court of Appeals clarified its position on an issue that continues to cause much consternation among the federal appellate courts: Can trial judges certify class actions in which not every class member has suffered an injury? The 1st Circuit panel – Judges Sandra Lynch, William Kayatta and David Barron – sided with the 3rd, 5th and District of Columbia Circuits to hold that the predominance requirement in the Federal Rules of Civil Procedure for class actions precludes class certification if more than a minimal number of prospective class members haven’t been injured.

The attorney general attacks ‘judicial encroachment.’ Who’s his real audience?

Oct 16 2018

U.S. Attorney General Jeff Sessions gave a fiery speech Monday night at the Heritage Foundation, the conservative think tank linked to President Trump’s rapid-fire appointment of conservative federal judges.

Chicago sues Sessions (again) over sanctuary policy, claims ‘bad faith’ evasion of injunction

Oct 15 2018

The city of Chicago has already won a permanent injunction against the Justice Department's 2017 policy of conditioning certain law enforcement grants on compliance with the Trump administration’s immigration policies. Last July, U.S. District Judge Harry Leinenweber of Chicago granted summary judgment in Chicago’s suit against Attorney General Jeff Sessions, holding that DOJ’s attempt to force the city to abandon its so-called sanctuary policy was both unconstitutional and unlawful under the statute governing grant awards.

New SCOTUS petition invites justices to kill off M&A shareholder suits in federal court

Oct 12 2018

Over the past couple of years, as shareholder challenges to M&A transactions have migrated from Delaware Chancery Court to federal courts, judges have begun squirming about the legitimacy of these class actions. Just last month, for example, I told you about a decision in which U.S. District Judge Thomas Durkin of Chicago said he has the inherent power to police mootness fees defendants have agreed to pay shareholders' lawyers – even when those shareholders' lawyers voluntarily dismiss prospective class actions. Both the 5th and 7th U.S. Circuit Courts of Appeal, meanwhile, have balked at fee awards for plaintiffs' lawyers who file M&A class actions in federal court and obtain only additional deal disclosures.

Both sides want to settle class action. Judge says keep litigating. A First Amendment story?

Oct 11 2018

U.S. District Judge William Alsup of San Francisco has developed a rigorous set of rules to ward off collusive class action settlements that benefit no one but plaintiffs' lawyers. As the judge explained in an order in a consumer class action against the computer peripherals company Logitech, he believes class members are best positioned to understand the value of their claims after they’ve conducted discovery and litigated a motion to be certified as a class. “That way, the class certification is a done deal and cannot compromise class claims,” the judge explained in his order. “Only the risks of litigation on the merits can do so.”

Hedge funds step up to lead shareholder suit against Tesla

Oct 10 2018

A pair of offshore hedge funds that claim to have lost more than $15 million to cover short positions in Tesla have asked for court approval to lead consolidated private securities fraud litigation against the carmaker.

World News

Turkey, U.S. vow to get to bottom of Khashoggi killing

Turkey and the United States vowed on Tuesday to get to the bottom of the killing of Jamal Khashoggi and punish those responsible, after Saudi Arabia admitted that the prominent journalist died during a Saudi security operation in Istanbul.