Alison Frankel

With FCPA under scrutiny, will DOJ expand use of Travel Act?

March 12, 2012

If the Foreign Corrupt Practices Act is Peyton Manning, the Travel Act could turn out to be his little brother Eli.

Chevron tries, tries again to attach Ecuadoreans’ $18 bln award

March 12, 2012

It’s been all of three weeks since U.S. District Judge Lewis Kaplan of Manhattan federal court lifted a stay on Chevron’s fraud and racketeering suit, which was filed in 2010 against the Ecuadoreans who accuse the oil company of contaminating the Lago Agrio region of the rainforest as well as the Ecuadoreans’ lawyers and advisers. But the two sides in this corollary to the endless litigation that produced an $18.2 billion judgment against Chevron in the Ecuadorean courts have picked up as though they never left off. This week Chevron filed a motion for partial summary judgment and renewed its motion for an attachment order that would effectively block the Ecuadoreans from enforcing their award. Lawyers for the RICO defendants, predictably, have responded with accusations of dirty tricks against Chevron and its counsel at Gibson, Dunn & Crutcher.

Louis Vuitton and Penn offer unintended lesson in trademark law

March 9, 2012

Is there any trademark owner with less of a sense of humor than Louis Vuitton? I thought the French fashion house couldn’t outdo its 2010 trademark case against Hyundai for a momentary glimpse of a basketball with a Vuitton-like pattern in a Superbowl ad spoofing the rich. I was wrong. Last week Louis Vuitton trademark counsel Michael Pantalony sent a cease-and-desist letter to the dean of the University of Pennsylvania Law School, demanding that Penn take down posters advertising a March 20 fashion IP symposium because the posters “misappropriated and modified” Vuitton’s trademarked monogram design.

How plaintiffs’ lawyers are winning the Delaware injunction game

March 7, 2012

Robert Rosenkranz was one hell of a CEO and chairman for Delphi Financial Group. As Vice Chancellor Sam Glasscock details in a 56-page ruling issued late Tuesday, when Rosenkranz took the insurance holding company public in 1990, he created two classes of shares, one for the public and one for him. His shares carried 10 times the voting power of the public shares, which meant, for all intents and purposes, that he controlled the company despite owning only a 13 percent equity stake. Rosenkranz did surrender some rights in Delphi’s charter, though. Upon the sale of the company, his Class B stock would convert to Class A, which, according to Glasscock, was intended to eliminate the possibility that Rosenkranz would receive a control premium for his shares if the company were acquired.

SCOTUS: Should U.S. courts police international human rights?

March 7, 2012

In a stunning order Monday, the U.S. Supreme Court essentially said it had been looking at the wrong issue in an Alien Tort Statute case called Kiobel v. Royal Dutch Petroleum. It called for new briefs that reframe Kiobel as an examination of the extraterritorial application of the ATS. Given the justices’ reluctance to extend U.S. jurisdiction beyond our borders, expressed so fatefully in their 2010 ruling in Morrison v. National Austrialia Bank, the recasting of Kiobel has the potential to devastate U.S. human rights litigation based on overseas conduct.

Credit Suisse gets no Janus protection in National Century SJ ruling

March 6, 2012

The Countrywide mortgage-backed securities investors who have accused Kathy Patrick and her firm, Gibbs & Bruns, of being patsies in Bank of America’s proposed $8.5 billion MBS put-back settlement might want to talk to Credit Suisse about whether Patrick is inclined to collude with bank defendants.

Chubb v. Travelers grudge match costs asbestos victims $500 mln

March 5, 2012

If it weren’t for the $500 million that won’t go to asbestos victims as a result of the enmity between Chubb Insurance and Travelers Insurance, this story would be a funny O. Henry-esque lesson in the ironies of litigation. But there’s nothing funny about plaintiffs losing out on $500 million they’ve been counting on since 2004, especially because they had absolutely nothing to do with the loss. What we have here is a cautionary tale of the unintended consequences that abound in long-running, complex litigation.

Tortured opinion is Strine’s surrender in El Paso case

March 1, 2012

Chancellor Leo Strine of Delaware Chancery Court is thoroughly sick of what he perceives as Goldman Sachs’ disregard for the M&A rules everyone else plays by. His 34-page decision Wednesday in a shareholder challenge to Kinder Morgan’s $21.1 billion acquisition of El Paso Corp is filled with scorn for Goldman’s eagerness to remain an adviser to longtime client El Paso even though Goldman held a $4 billion stake and two board seats at Kinder Morgan. Writing four months after he took Goldman to task for manipulating valuations in the Southern Peru Copper case, Strine used words like “tainted,” “furtive,” and “troubling” to describe the investment bank’s continuing influence on El Paso CEO Douglas Foshee, even after it was supposed to be walled off from the Kinder deal.

Plaintiffs’ lawyers spend millions in online ads. Should we care?

March 1, 2012

As I read the Institute for Legal Reform’s just-released report on “digital marketing efforts of plaintiffs’ attorneys and litigation firms,” I was left with a disquieting image. I pictured a devastated husband and wife returning home from a doctor’s office with the awful news that one of them has mesothelioma, the fatal asbestos-linked cancer. They sit down at the computer, type “mesothelioma” into Google’s search engine, and instead of finding dispassionate medical advice or a support group for fellow sufferers, they end up with a list of sites that are, directly or indirectly, contingency-fee firms looking to file a personal injury suit on their behalf.