Alison Frankel

2nd Circuit punts on constitutionality of judge’s diversity effort

December 24, 2012

Benjamin Wilson of Beveridge & Diamond and John Daniels of Quarles & Brady are two of the three African-American chairmen of Am Law 200 firms (Maurice Watson of Husch Blackwell is the third). Wilson and Daniels, who have known each other since they overlapped at Harvard Law School in the 1970s, sat down with a few Reuters journalists last week to talk about the African American Managing Partners Network, a networking group of law firm leaders that they’re championing. Daniels, in particular, talked about his goal of promoting African Americans as great lawyers and rainmakers, not as supporting partners. Both he and Wilson told us that one way to achieve this sort of Diversity 2.0 is to encourage a legal industry version of the National Football League’s “Rooney Rule,” in which, beginning in 2003, the NFL required teams to interview minority candidates for high-level coaching jobs. Just as the ranks of minority coaches have increased considerably since the Rooney Rule was instituted, Wilson and Daniels believe that if general counsel make an effort to interview black candidates when they’re looking for outside lawyers, African Americans will win those assignments.

Should state AGs be allowed to use contingency fee lawyers?

December 20, 2012

One of my themes of the year, beginning with a post way back on Jan. 3, has been the shifting relationship between state attorneys general and private plaintiffs’ lawyers. In several cases with major developments in 2012, state AGs have operated at odds with the private bar, a change from their traditional cooperation in pursuit of defendants. Those cases, however, remain the exception. State agencies continue to make a habit of hiring private lawyers on contingency, most notably to prosecute securities class actions and consumer fraud cases. To cite one prominent example, in the biggest class action settlement of the year, Bank of America’s $2.43 billion settlement of claims related to its acquisition of Merrill Lynch, the Ohio pension funds that served as lead plaintiff contracted for representation from Bernstein Litowitz Berger & GrossmannKessler Topaz Meltzer & Check; and Kaplan Fox & Kilsheimer.

After Libor, arguments against financial regulation are a joke

December 19, 2012

Everyone who has ever claimed that the financial industry is overregulated should be forced to read the final notice on UBS’s manipulation of the London interbank offered rate issued Wednesday by the United Kingdom’s Financial Services Authority.

What is Goldman Sachs’s standard for indemnifying legal fees?

December 18, 2012

What do Rajat Gupta and Sergey Aleynikov have in common? Not much, on the surface. One is the patrician former McKinsey chief and Goldman Sachs director, the other a scruffy young computer programmer. But as you probably know, Gupta and Aleynikov both got on the wrong side of Goldman Sachs. Gupta was convicted this summer of leaking inside information about the bank to Galleon Group founder Raj Rajaratnam. Aleynikov, a former Goldman computer programmer, was convicted in 2010 on federal charges of stealing the bank’s high-frequency trading code when he defected to a rival start-up but was set free last April by the 2nd Circuit Court of Appeals. (He has since been charged by the Manhattan district attorney for state-law crimes.)

MBS investors’ trade group moves to counter adverse put-back rulings

December 17, 2012

The Association of Mortgage Investors isn’t sitting around and waiting for more bad precedent on the obligations of mortgage-backed securities issuers.

Leading theory of Dodd-Frank rule challenges takes a body blow

December 14, 2012

If there were a Playboy magazine for sexy federal laws, the Administrative Procedure Act would not be in it. I seriously doubt that any “Law and Order” episode or plotline of “The Good Wife” has been built around the 1946 statute that governs how federal agencies may establish new regulations, and yet judicial interpretations of the APA are what determine if new regulations live or die. Consider, for instance, the Dodd-Frank financial reforms. Congress got all the credit or blame (depending on your perspective) for passing the umbrella law in 2010, but its actual implementation depends on the rule makers at the Securities and Exchange Commission and Commodity Futures Trading Commission, enacting regulations in accordance with the APA.

Should Scalia step aside in gay marriage cases?

December 12, 2012

Controversy follows U.S. Supreme Court Justice Antonin Scalia like Pig Pen’s cloud of dirt. You’ve probably heard that on Monday night, when the justice was speaking at Princeton, a gay student confronted him about his dissent in the 2003 case of Lawrence v. Texas, in which the majority struck down a state law banning same-sex sodomy. Scalia’s dissent discussed the legitimate state interest in legislating morality, and warned that the majority’s holding called into question “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” He also called the opinion “the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Bond insurers tee up constitutional showdown with Calpers

December 11, 2012

The star litigator David Boies of Boies, Schiller & Flexner, who has a knack for ending up in the middle of the most pressing issues of the day, told me recently that the next great American crisis is $5 trillion in unfunded pension liability for city and state governments. Boies just signed on to defend Rhode Island from state workers’ challenges to the sweeping pension overhaul legislation passed in 2011, and he predicts that if elected officials in other states don’t take similar action, the United States faces an unprecedented wave of government bankruptcies.

The Supreme Court’s burgeoning business agenda

December 10, 2012

The marquee issue of the Supreme Court’s 2012 term will unquestionably be gay marriage, thanks to the justices’ fascinating decision Friday to review the 2nd Circuit Court of Appeals’ holding that the federal Defense of Marriage Act is unconstitutional under equal protection provisions and the 9th Circuit’s ruling that California’s ban on gay marriage is unconstitutional, albeit on narrower grounds. (My Reuters colleague Terry Baynes has an insightful backgrounder on the two cases and the impact of the double cert grant.) But more quietly, the justices have agreed to hear a clutch of cases that could result in a real retrenchment for big businesses and a corresponding ebbing of the power of individuals to hold corporations accountable.

Will Rajat Gupta get off? 2nd Circuit bail ruling offers clues

December 7, 2012

On Tuesday, Judges Jose Cabranes and Reena Raggi of the 2nd Circuit Court of Appeals ordered that former Goldman Sachs director and McKinsey chief Rajat Gupta remain free on bail while his lawyers at Wilmer Cutler Pickering Hale and Dorr and Kramer Levin Naftalis & Frankel try to get his insider trading convictionoverturned on appeal. That’s an unusual order from the appeals court, which typically defers to the judgment of the trial court on post-conviction bail. In this case, U.S. Senior District Judge Jed Rakoff, who oversaw the insider trading trial in June, refused to grant Gupta’s bail request.