Alison Frankel

Justice Department sides with Madoff’s banks on SCOTUS review

By Alison Frankel
May 27, 2014

Not every shred of hope is lost for Bernard Madoff trustee Irving Picard in his quest to recover billions from the international banks he has accused of abetting Madoff’s fraud. But it’s looking bleak for the Madoff trustee after the Justice Department filed a brief Friday at the U.S. Supreme Court. In response to the court’s request for the government’s view of Picard’s petition for a writ of certiorari, Solicitor General Donald Verrilli advised the justices to reject Picard’s appeal.

In Chevron case, Ecuador says new tests prove long-standing pollution

By Alison Frankel
May 22, 2014

The biggest frustration for Ecuador’s ambassador to the United States, Nathalie Cely Suárez, in her country’s seemingly endless dispute with Chevron over the cleanup of old drilling sites in the Amazon rainforest, is how effectively the oil company has created doubts about the contamination. “Of course contamination existed, and still exists today,” Cely said in an interview Wednesday. “People tend to forget that the most important thing in this case is people’s lives.”

Allergan investors (other than Ackman!) sue for say in takeover fight

By Alison Frankel
May 21, 2014

Valeant Pharmaceutical’s soon-to-be sweetened $47 billion bid for Allergan has been called “a weird textbook for the Future of Mergers & Acquisitions”: It’s the first deal in which an activist hedge fund investor, William Ackman of Pershing Square Capital, has teamed up with an operating company on a bid; and the first in which hostile bidders have convened an unofficial shareholder meeting and proxy vote to scare their target into negotiations. Ackman and Valeant are adding new steps to the old M&A dance — and shareholder class action lawyers are trying to figure out how to keep up with their moves.

5th Circuit’s last word to BP leaves constitutional question-mark

By Alison Frankel
May 20, 2014

The 5th U.S. Circuit Court of Appeals has had it with BP and its attempts to evade the consequences of the deal it struck to end litigation over the 2010 Deepwater Horizon oil spill.

Lesson from the smartphone wars: Litigation is not a business plan

By Alison Frankel
May 19, 2014

After almost five years of suing each other in courts in the United States and Europe over patents on mobile devices, Apple and Google abruptly announced Friday night that they’ve called a ceasefire: They’re dropping all of the litigation. They’re not even making a deal to cross-license one another’s IP, just declaring a truce and walking away.

California finds ‘right to privacy’ for anonymous online commenters

By Alison Frankel
May 16, 2014

The big headlines this week on privacy and the Internet were about a ruling from the European Union’s highest court, which, as you know, held that Internet search companies must respect a “right to be forgotten.” The EU decision is a money pit for Google and its ilk, which now have to figure out how to respond to people’s requests that search engines disable links to purportedly irrelevant information about them, even if the information is otherwise accurate and publicly accessible. First Amendment advocates in the United States lamented the EU’s decision as an incursion on the public’s access to perfectly legitimate information. I’m with them on that.

The downside of Ackman’s call for Allergan “meeting”? There is none!

By Alison Frankel
May 14, 2014

Valeant Pharmaceuticals and its hostile takeover partner William Ackman of Pershing Square Capital have a phalanx of lawyers working on their $47 billion bid for Allergan – Kirkland & Ellis for Ackman; Sullivan & Cromwell and Skadden, Arps, Slate, Meagher & Flom for Valeant- so I don’t know who deserves credit for the tactic they announced yesterday. But whoever came up with the idea of holding an unofficial meeting and proxy vote to give Allergan shareholders an opportunity to urge the board to enter discussions with Valeant is quite a strategist. The Ackman/Valeant proxy is apparently the first time a hostile bidder has called for a non-binding straw poll of shareholders but I bet it won’t be the last. This is a win-win proposition for Ackman and Valeant, and here’s why.

The misguided attack on incentive awards in class actions

By Alison Frankel
May 13, 2014

U.S. District Judge Colleen McMahon of Manhattan included a highly unusual warning in her recent opinion approving the $15 million settlement of a securities class action against the clothing retailer Aeropostale: She’s no longer following the standard operating procedure of awarding extra fees to plaintiffs who lead class actions. “This opinion should serve notice that this court, at least, will not routinely decide to ‘tip’ lead plaintiffs simply because their names appear in the caption,” she wrote, “and will view with some skepticism conclusory arguments that they actually made a meaningful substantive contribution to the lawsuit.”

College application process violates antitrust law: new suit

By Alison Frankel
May 12, 2014

Revenue at the Common Application is practically infinitesimal by the standards of big business: $13 million in 2011, the last year for which its tax returns are public. But if you’re the parent of a kid who has applied or will be applying to college, you know Common App’s importance bears little relationship to its revenue. The non-profit completely dominates the college application process. More than 550 institutions in the United States are members of Common App, whose online application services permit students to prepare a single application that can be distributed to multiple schools, along with transcripts and teacher recommendations that are also uploaded to Common App’s site. These days, just about every kid applying to a selective college — one that judges applicants on more than just grades and test scores — is doing it through Common App.

A smoking gun in debate over consumer class actions?

By Alison Frankel
May 9, 2014

The biggest obstacle in evaluating class actions involving inexpensive consumer products is the frustrating lack of empirical data. Sure, we can compile statistics on case filings, dismissals, settlements and attorneys’ fees, but publicly available evidence about whether these cases actually benefit the people who bought the supposedly flawed products is scant indeed.