Alison Frankel

Why plaintiffs’ lawyers would rather sue Facebook than JPMorgan

May 25, 2012

Securities class action lawyers have short attention spans. It was only last week, after all, that JPMorgan Chase and its $2 billion (and counting) loss on its credit default swap hedge was the topic of the moment. Plaintiffs’ lawyers and their institutional clients were figuring out whether they bought the bank’s shares in the one-month period between CEO Jamie Dimon telling analysts that the hedge was a “tempest in a teapot” and Dimon disclosing the initial $2 billion loss. But after an initial flurry of filings and press releases about the JPMorgan case, this week has brought no additional complaints against the bank – even as the impact of JPMorgan’s hedge ripples through credit markets and regulatory debate.

AIG (mostly) survives Countrywide timeliness defense in MBS case

May 25, 2012

AIG’s $6 billion in mortgage-backed securities claims against Countrywide survived a near-death experience late Wednesday, when U.S. District Judge Mariana Pfaelzer of Los Angeles issued her ruling on Countrywide’s statute of limitations defense. In a 25-page opinion, Pfaelzer tossed AIG’s federal securities claims, as well as some fraud and negligent misrepresentation claims by AIG subsidiaries. But AIG said in an email statement that the ruling leaves alive “more than 98 percent of the recovery it seeks.” For a plaintiff that feared the worst – as AIG most certainly did, thanks to a silver bullet Pfaelzer handed to Countrywide in February – the judge’s ruling is a stunning reprieve.

In Gupta trial, what is insider trading?

May 23, 2012

Sometime in the next few days of testimony in the prosecution of former Goldman Sachs director Rajat Gupta, U.S. Senior District Judge Jed Rakoff will probably take a moment to give jurors what he has described in previous trials as a “heads-up.” Rakoff will offer the jury a preliminary instruction on what insider trading is. If you think that’s an easy task, you should look at the proposed instructions the government and defense counsel from Kramer Levin Naftalis & Frankel submitted to Rakoff this week. The two sides agree that Rakoff should use phrases like “material non-public information,” but beyond that they’re each trying to use the preliminary instruction to sway jurors.

SCOTUS to Federal Circuit: Think harder about what’s patentable

May 23, 2012

In March, when the U.S. Supreme Court ruled unanimously that Prometheus Laboratories was not entitled to a patent on a diagnostic process because it’s a law of nature, On the Case (and many others) predicted the justices would subsequently call for reconsideration of Myriad Genetics’ patents on breast cancer genes, since genes are, of course, also natural phenomena. Within a week we were all proven right. But the second case the Supreme Court has remanded to the Federal Circuit Court of Appeals in light of the Mayo ruling – which involves a patent on viewing copyrighted content on the Internet – suggests the justices want greater scrutiny of a wide array of patents, not just biotech IP.

Morrison and international RICO: Kaplan’s take in Chevron case

May 22, 2012

It’s been relatively easy for district courts to figure out how to apply the U.S. Supreme Court’s 2010 ruling in Morrison v. National Australia Bank in securities cases – unless the defendant is a U.S.-listed company, shareholders are pretty much out of luck in U.S. courts. Post-Morrison racketeering litigation has no such conveniently bright lines. The Racketeer Influenced and Corrupt Organizations Act doesn’t explicitly mention that it applies to overseas conduct, so under Morrison judges must presume it does not. But they’ve struggled to define exactly what constitutes overseas racketeering as opposed to domestic racketeering with an international component.

Should artists get royalties on resales? California judge says no

May 19, 2012

There’s a peculiarity in U.S. copyright law that must drive painters and sculptors nuts. When writers, composers, photographers, and filmmakers obtain copyrights, they’re entitled to royalties every time their work is sold. Not painters or sculptors. Under the U.S. Copyright Act (in contrast to many copyright regimes in Europe), once a piece of art is sold, all rights to the physical work belong to the buyer. No matter how much the art appreciates in value, artists aren’t due a penny when the work is resold. All of the profits belong to sellers, not to creators.

Where are institutional investors in JPMorgan securities cases?

May 18, 2012

The key detail in the two securities-fraud complaints filed so far against JPMorgan Chase isn’t that CEO Jamie Dimon told analysts that news reports about the bank’s risky credit default swap position were a “tempest in a teapot.” Even though that’s the statement both complaints pinpoint as best evidence so far of the bank’s alleged deception, to understand the shape this litigation is likely to take, you have to check out the class period both complaints (here and here) assert. It’s unusually short for a securities class action, beginning on Apr. 13 – when Dimon made the fateful “tempest” comment – and ending on May 10, the day the bank disclosed losses of $2 billion in CDS trades, with more to come.

Beware unintended consequences of new campaign ad ruling

May 16, 2012

On Monday, a three-judge panel of the Court of Appeals for the D.C. Circuit refused to stay a lower-court ruling that requires corporations, unions and non-profits engaged in a certain form of campaign-related advertising to disclose their donors. In a 2-to-1 decision, the appeals court held that there’s no irreparable harm in waiting for a full appellate record to decide whether U.S. District Judge Amy Berman Jackson was correct in ruling that the Federal Election Commission may not curtail disclosure requirements Congress specified. In fact, D.C. Circuit Judges Judith Rogers and Thomas Griffith said the public’s interest is in disclosure, rather than secrecy.

Rajat Gupta and the hearsay rule

May 16, 2012

Remember the children’s game Telephone? One kid whispers something in another kid’s ear, the second kid turns around and whispers what she heard to the next child, and so on down the line. At the end, the last one to receive the whispered message says aloud what she heard, the kid at the start of the chain announces the original phrase, and everyone laughs because the message was inevitably mangled as it was passed along. That’s why courts have a rule barring hearsay. Witnesses can testify about conversations they participated in, but they can’t generally tell jurors what they heard secondhand about discussions they weren’t directly involved in, because hearsay isn’t considered sufficiently reliable.

West and Lexis: Copyrights and wrongs

May 15, 2012

Let’s say you’ve just signed a magnificent brief, one that marshals case law and presents your client’s position in the most compelling and articulate fashion. You file it with the court, and then what? Do you register your brief with the U.S. Copyright Office? Most attorneys do not. But if you don’t register your work, can you enforce a copyright on it?