The relationship between the U.S. Supreme Court and the Federal Circuit Court of Appeals reminds me of a parent with a recalcitrant teenager. Faced with, say, confusion over patent eligibility – the legal equivalent of a messy room — the Supreme Court tells the Federal Circuit that it won’t tolerate such slovenliness. The appeals court mutters, “You’re not the boss of me,” and slams its door, leaving those empty yet still greasy pizza boxes exactly where they were.
In a way, it was a no-brainer for the Federal Trade Commission to file a certiorari petition asking the U.S. Supreme Court to review the 11th Circuit Court of Appeals ruling in the FTC’s pay-for-delay case against Watson Pharmaceuticals. After all, the FTC has been screaming for years that pay-for-delay deals — in which brand-name drug manufacturers pay generic drug competitors to drop challenges to the brand-name maker’s patents — violate antitrust laws. So, considering that the Supreme Court has so far ducked an issue that’s been percolating in the federal circuits for more than a decade, why wouldn’t the FTC ask the justices to review an appellate ruling that pay-for-delay deals are not anti-competitive unless they exceed the scope of the brand-name drug maker’s patent or involve sham litigation?
I have a bold assertion: Breach of contract suits by mortgage-backed securities trustees are no longer a rarity. In my daily feed of new filings, I’m seeing a fairly regular trickle of cases asserting trustee claims that mortgage originators didn’t live up to their representations and warranties about the loans they sold to MBS trusts. The roster of firms filing cases for trustees has expanded as well. Kasowitz, Benson, Torres & Friedman still seems to be the likeliest to appear on the signature page of MBS trustee complaints, but last week MoloLamken filed a put-back suit in New York State Supreme Court for the trustee of a Morgan Stanley MBS trust, and Holwell Shuster & Goldberg brought a put-back claim in the same court for the trustee of a Deutsche Bank-backed trust.
Over the summer, the justices of the U.S. Supreme Court made one of the most improbable grants of certiorari you will ever see.
It would be so easy to be cynical about the suit New York Attorney General Eric Schneiderman brought Monday night against JPMorgan Chase, seeking to hold the bank liable for the alleged mortgage securitization fraud committed by Bear Stearns before JPMorgan acquired Bear in March 2008. I could start with the political expediency of the 31-page complaint, which, on the eve of the first presidential debate, provides the Obama administration with an answer to critics who have accused regulators of going easy on big banks. Indeed, the case is so politically charged that, according to Reuters, Schneiderman’s federal colleagues on the administration’s mortgage fraud task force were peeved that the New York AG filed the suit Monday, ahead of a joint federal-state press conference Tuesday.
On Friday, U.S. District Judge Robert Wilkins of Washington struck down the Commodity Futures Trading Commission’s 2011 rule setting position limits on derivatives tied to certain physical commodities. The judge found that the CFTC had misinterpreted the Dodd-Frank financial reform law of 2010 when it wrongly concluded that Dodd-Frank required it to impose position limits in order to curb speculative trading. Instead, according to Wilkins, the CFTC should have looked back to the Commodity Exchange Act of 1936 and determined whether such limits are necessary and appropriate before setting them. The judge sent the rule back to the CFTC for reconsideration.
Brad Karp of Paul, Weiss, Rifkind, Wharton & Garrison and Max Berger of Bernstein Litowitz Berger & Grossmann share an elevator bank at 1285 6th Avenue in New York City. Bernstein Litowitz, a 50-lawyer plaintiffs’ firm, has space on the 36th and 38th floors. Paul Weiss’s 750 lawyers occupy much of the rest of the office building. Karp and Berger are also old frenemies: In 2004, they negotiated Citigroup’s $2.65 billion settlement of shareholder claims in the WorldCom accounting fraud case. Over the last several months, with Karp representing Bank of America and Berger one of the lead counsel for shareholders suing over the bank’s acquisition of Merrill Lynch in 2008, the two have spent a lot of time riding the elevator between Berger’s office on the 36th floor and Karp’s on the 30th, discussing a resolution of the class action.