United States

Alison Frankel

Justices revisit Spokeo standing at oral arguments over cy pres settlements

Nov 01 2018

A funny thing happened on the way to a U.S. Supreme Court determination of the propriety of paying charities instead of class members in so-called cy pres class action settlements. At oral arguments on Wednesday in Frank v. Gaos – in which the Supreme Court granted review to decide whether cy pres settlements are fair and reasonable under the federal rules governing class actions – at least three justices suggested the court can’t reach the cy pres issue because plaintiffs in the underlying class action hadn’t established their constitutional right to sue in federal court under the Supreme Court’s 2016 ruling in Spokeo v. Robins (136 S.Ct. 1540).

Akorn to Delaware justices: Chancery’s MAC opinion is ‘new blueprint for remorseful buyers’

Oct 31 2018

The global pharmaceutical company Fresenius received a rude shock in the summer of 2017 when Akorn, the generic drugmaker Fresenius had agreed to acquire for $4.75 billion, reported its quarterly financial results. The results were terrible – far worse than Fresenius’ gloomiest projection. Fresenius CEO Stephan Sturm considered the Akorn results the biggest personal embarrassment of his career. Within weeks, the company hired Paul Weiss Rifkind Wharton & Garrison to advise it could wriggle out from the deal to buy Akorn.

In new fraud class action v. Trump Organization, plaintiffs lobby hard for anonymity

Oct 30 2018

It takes guts to file a suit in U.S. courts. Our justice system, as you know, presumes court proceedings are public. So the price of admission to the system is public exposure.

Securities fraud defendant agrees to pay $217.5 million to opt-outs. A portent?

Oct 29 2018

On Friday, VEREIT, the successor to a scandal-beset real estate investment trust previously known as American Realty Capital Properties, reached an agreement with four hedge funds represented by Lowenstein Sandler. VEREIT said it would pay the funds $42.5 million to resolve their suits claiming ARCP defrauded investors by inflating a key accounting metric in a 2014 financial report. That’s on top of the $85 million settlement VEREIT entered earlier this month with several other big funds, including BlackRock, PIMCO and Clearline, represented by Bernstein Litowitz Berger & Grossmann; and a $90 million settlement in June with Vanguard funds represented by Boies Schiller Flexner.

DOJ looks to silent majority of SCOTUS to shield Trump officials in census battle

Oct 26 2018

The most pressing battle right now between the Trump administration and the federal judiciary is playing out in federal court in New York, where the Justice Department is defending the Commerce Department against allegations that it was motivated by racial animus to add a question about citizenship to the 2020 census form. This case will soon test whether the U.S. Supreme Court has the back of Attorney General Jeff Sessions as he fends off what he has recently called “judicial encroachment” on the Trump administration’s policy prerogatives.

7th Circuit adds to consensus: Judges get to decide viability of class arbitration waivers

Oct 25 2018

American corporations love arbitration agreements. Can’t get enough of them! In the past several years, with the blessing of the U.S. Supreme Court, businesses have forced tens of millions of employees and untold numbers of consumers into unilateral agreements in which they surrender their right to go to court and instead submit to the authority of a private arbitrator. Businesses will tell you that arbitrators can resolve disputes more cheaply and efficiently than the courts. It’s in everyone’s interest, they say, to steer cases out of the court system and into the streamlined arbitration process.

U.S. Chamber wants Congress to restrict securities class actions

Oct 24 2018

Prompted by a dramatic rise in the number of securities class action filings in federal court, the U.S. Chamber of Commerce’s Institute for Legal Reform launched a campaign Wednesday to push Congress to pass laws designed to discourage meritless securities litigation.

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

Oct 23 2018

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.

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