Opinion

Alison Frankel

FDA punts again on GMO labeling, in boon to class action plaintiffs

Alison Frankel
Jan 8, 2014 23:04 UTC

A couple months back, I told you that labeling of food containing genetically modified ingredients could be one of the rare issues in which private litigation has more impact than federal regulation on industry practices. That prospect has become more likely than ever, thanks to a letter that the Food and Drug Administration sent Monday to three federal judges overseeing consumer class action claims involving food with bio-engineered ingredients.

Consumers have filed more than 60 class actions across the country in which they claim to have been deceived by labels that described food containing genetically modified ingredients as “natural” or “all natural.” In at least three of those cases, as I discussed in a post last October, federal judges denied defense motions under the primary jurisdiction doctrine to stay the class actions until the Food and Drug Administration issues binding policy on the labeling of genetically modified ingredients. Those judges all said there was no point in holding up the class actions in the hope that the FDA would suddenly come up with a hard-and-fast answer to a question it’s actually been dodging since 1992.

Three other judges, however, did halt class actions in order to ask the FDA for guidance. They got it on Monday: The agency wrote to judges overseeing cases against Campbell Soup, General Mills and Gruma Corp (a maker of corn tortillas) to inform them that it would not be issuing an administrative decision on the labeling of bio-engineered foods in response to the judges’ requests. If the agency were to somehow amend its existing policy – which does not formally define the term “natural” but prohibits such labeling for food containing an unexpected artificial or synthetic ingredient – “we would likely embark on a public process, such as issuing a regulation or formal guidance, in order to determine whether to make such a change; we would not do so in the context of litigation between private parties.”

The letter offered no assurance that FDA has any intention of embarking on that public process, outlining all of the competing interests it would have to weigh to reach a new food labeling policy (including the involvement of additional federal agencies) and the resources such a quest would consume. And even if the FDA did undertake the exertions and expense of attempting to define “natural” food, the letter said, “There is no assurance that we would revoke, amend, or add to the current policy, or develop any policy at all.”

In other words, makers of food that contains bio-engineered ingredients can’t count on the FDA to save them from deceptive labeling class actions. They can’t even hope to delay the class actions to wait for a formal FDA definition of “natural” food, since the agency’s letter clearly indicates there’s not even a timetable to establish a definitive policy. Even worse, according to Glenn Lammi, chief counsel for legal studies at the Washington Legal Foundation and a tracker of food labeling litigation, the FDA’s position newly-announced will undermine defense arguments that state-law consumer claims are preempted by federal authority over food labels.

New Delaware Supreme Court nominee Strine speaks! (Well, sort of)

Alison Frankel
Jan 8, 2014 21:03 UTC

On Wednesday, Delaware Governor Jack Markell nominated Chancellor Leo Strine of Chancery Court to become chief justice of the state’s Supreme Court. Assuming Strine’s nomination is approved, Chancery Court is going to be a much less colorful place. Strine is a legal mastermind – with an unpredictable and outspoken judicial demeanor. Occasionally, his off-tangent courtroom riffs have landed him in trouble. In 2012, for instance, Strine said he regretted comments he made during a hearing involving fashion entrepreneur Tory Burch in which he asked her attorney if Burch is Jewish and compared her dispute with her former husband to a “drunken WASP-fest.” Strine was also gently chided last year by his future colleagues on the Delaware Supreme Court for using judicial opinions to express his “world views.”

My Reuters colleague Tom Hals has been covering Strine in court for years. Unfortunately, the chancellor has repeatedly declined to sit down for a formal interview with Reuters. So to celebrate his nomination, we’ve constructed an imaginary Q&A. Well, partly imaginary. We’ve made up the questions, but all of Strine’s “answers” are verbatim quotes – albeit out of context – from his courtroom comments or opinions.

Reuters: You’re well known for your work as a judge. But tell us a bit about you as a person.

Halliburton alert! New briefs argue Congress never endorsed Basic

Alison Frankel
Jan 7, 2014 20:47 UTC

Last February, when Chief Justice John Roberts and Justice Samuel Alito of the U.S. Supreme Court sided with the court’s liberal wing in Amgen v. Connecticut Retirement Plans, they joined an opinion that left intact the standard for certification of a class of securities fraud plaintiffs. Amgen, as you probably recall, had asked the court to impose a requirement that shareholders prove the materiality of supposed corporate misrepresentations in order to win class certification. The majority refused, in a decision written by Justice Ruth Ginsburg. Among other things, Justice Ginsburg said that if Congress had wanted to tinker with the Supreme Court’s 1988 precedent on securities class certification, Basic v. Levinson, it could have done so in 1995, when lawmakers passed the Private Securities Litigation Reform Act, or again in 1998, when the Securities Litigation Uniform Standards Act became law. Instead, Justice Ginsburg wrote in Amgen, “Congress rejected calls to undo the fraud-on-the-market presumption of classwide reliance endorsed in Basic.”

But is that really what Congress did in 1995? The answer to that question could have a big impact on the future of securities class actions.

The Amgen case, as you know, led directly to this term’s securities blockbuster: Halliburton v. Erica P. John Fund, which puts Basic’s presumption of shareholder reliance on supposed corporate misstatements – and thus the foundation of most securities fraud class actions – directly before the justices. Halliburton’s lawyers at Baker Botts filed their merits brief last week, urging the court to undo Basic as bad law based on misguided economic theory. On Monday, Halliburton’s amici joined in. They’re mostly the usual suspects: the U.S. Chamber of Commerce and other pro-business organizations; the Securities Industry and Financial Markets Association; the American Institute of Certified Public Accountants; the Washington Legal Foundation; and DRI – The Voice of the Defense Bar. Two different groups of law professors filed briefs, one a technical argument about the efficient-market theory underlying Basic and the other a scholarly condemnation of securities class action litigation.

Now that pot’s legal, what happens to employees who use?

Alison Frankel
Jan 6, 2014 23:40 UTC

I don’t want to harsh the mellow of all you Coloradoans enjoying your newly instituted right to use marijuana for recreational purposes, but if you smoke dope on your time off and later test positive in a workplace drug test, your employer can fire you, according to partners at five major employment law firms. The same is true in all but a handful of other states that have legalized pot for medical purposes. Unless you work in Arizona, Delaware, Maine, Rhode Island, Illinois or Connecticut, you aren’t protected for the authorized use of marijuana (and your protection even in some of those states isn’t a sure thing). As long as federal law treats pot as an illegal drug, employers have strong arguments to counter state laws permitting its use.

State supreme courts in California, Oregon, Washington and Montana, as well as federal appellate courts in the 6th and 9th Circuits, have explicitly sided with employers that fired employees using marijuana for authorized medical purposes, according to Nancy Delogu of Littler Mendelson. “Federal law pre-empts state law when they’re in direct conflict,” Delogu said. So, even though many states, including Colorado, have statutes precluding employers from acting against employees who take part in legal activities outside of the workplace – like smoking a cigarette on your break, taking a drink on a Saturday night or attending a political rally after hours – that protection doesn’t extend to using marijuana when state law bumps into the federal ban on pot.

A Colorado intermediate appeals court reached just that conclusion last April in a case involving a Dish Network employee named Brandon Coats, a quadriplegic who was authorized to use the drug medicinally before Colorado passed its broad pot legalization law. Even though Coats claimed he only used marijuana lawfully, on his own time and in compliance with Colorado’s restrictions on medicinal use, a divided appeals court held that medical marijuana usage is not a protected “lawful activity” because pot is federally prohibited. (Coats’ counsel from The Evans Firm told the Denver Post that he is appealing the ruling to the Colorado Supreme Court.)

For law firms, 2014 will be year of extreme change – and challenge

Alison Frankel
Dec 26, 2013 20:08 UTC

Just before Christmas, a partner at one of the most perennially profitable law firms in the land told me a funny story about a former colleague’s explanation for jettisoning his career at the firm and entering academia. The Big Law refugee told his partners that being elected to their ranks was like winning a pie-eating contest, only to discover that the prize is more pie. It wasn’t worth it to put in years of crushing work to become a partner, he said, when partnership’s only reward (aside from heaps of money) is the right to continue to work yourself into numbness.

I laughed at the story, mostly at the vision of expensively suited law firm partners with their faces planted in coconut cream pies, but the context was serious. We were talking about the decline in law school applications. My Big Law companion – whose own children have avoided legal careers – said kids are smart to opt against a future in which the only certainty is law school debt. Too gloomy an outlook, especially from a partner at the pinnacle of the profession? He’s still working as hard as ever, after all. After we plowed through the Christmas party crowds at the restaurant bar and said our goodbyes, he headed back to his office to log a few more hours.

I think my Big Law friend is dead-on – and not just about the prospects for young lawyers. I suspect that 2014 is going to be a pivotal year for big-case litigators, a moment when the normal cycles of litigation combine with changes wrought by the U.S. Supreme Court to undermine the foundation of their practice. If firms fail to anticipate and adapt to looming declines in the cases they’re built to handle, new law school graduates won’t be the only lawyers looking for work.

Paulson bets (for now) on JPMorgan in $2.7 bln FDIC fight

Alison Frankel
Dec 23, 2013 20:03 UTC

The relatively new industry of litigation funding, in which an investor otherwise uninvolved in a dispute agrees to front the money for one side or the other (almost always the plaintiffs) to litigate the case, has occasioned much soul searching about who has the right to bring a claim and control its prosecution. But there’s really nothing new about investors betting on litigation, albeit by acquiring a direct interest in a case. I’m speaking, of course, about hedge funds engaged in litigation arbitrage, in which they purchase a security in the hope that successful litigation will drive up its value. The phenomenon is best known in the distressed debt arena, where hedge funds have made heaps of money by buying up notes of bankrupt or near-bankrupt companies and then clawing for creditors’ rights by any means necessary. You also see trading in claims against receiverships, as in the brisk secondary market for claims belonging to Bernard Madoff’s investors, as well as trading in stock whose value is particularly driven by litigation developments, as, for instance, MBIA’s used to be. More recently, we’ve seen investors buying mortgage-backed notes with the intention of acquiring a big enough stake to force the MBS trustee to pursue repurchase claims. (Although, as I told you last week, that’s become a very low-odds bet, thanks to the New York state appellate court’s new ruling on the statute of limitations for put-back suits.)

The hedge funds that succeed in this game are, by definition, smarter than other investors about how litigation will impact the value of the securities they acquire. In that sense, Paulson & Co’s reported sale last week of its stake in Washington Mutual senior secured notes is a sign that JPMorgan is winning its years-long fight with the Federal Deposit Insurance Corporation over indemnification for WaMu MBS liability. As The Wall Street Journal reported Sunday, the hedge fund ditched its position in WaMu debt days after JPMorgan’s lawyers at Sullivan & Cromwell filed a complaint in federal court in Washington, demanding first dibs on the FDIC’s $2.7 billion WaMu receivership funds.

JPMorgan’s new suit repeats its long-running argument that when it took Washington Mutual off the FDIC’s hands in 2008, the acquisition contract required JPMorgan to assume only certain WaMu liabilities – and that liability based on deficient WaMu MBS remained with FDIC. The bank’s latest complaint does not assert a claim, at least for now, against the FDIC as a corporate entity, but demands more than $1 billion from the FDIC’s WaMu receivership fund, which contains about $2.75 billion (roughly $1.9 billion from JPMorgan purchase of WaMu plus another $800 million that the fund recovered through the Chapter 11 bankruptcy of WaMu’s holding company). JPMorgan’s complaint identifies 13 settled WaMu MBS investor cases and five that have yet to wrap up, and claims that the FDIC receivership is responsible for covering those deals, among other costs.

How Facebook IPO class action lawyers changed judge’s mind

Alison Frankel
Dec 20, 2013 20:37 UTC

The first paragraph of Facebook’s motion to dismiss a securities class action that raised allegations about disclosures in its initial public offering was a no-brainer. Last February, U.S. District Judge Robert Sweet of Manhattan tossed four shareholder derivative suits based on the same underlying facts, concluding in a voluminous opinion that Facebook had “repeatedly made express and extensive warnings” about potential weaknesses in its revenue model as users shifted from desktop computers to mobile devices. So in May, when Facebook’s lawyers at Kirkland & Ellis and Willkie Farr & Gallagher moved to dismiss the parallel securities class action, which is also before Judge Sweet, they quoted the judge’s own words right back to him, not just in the first paragraph but seven more times in the dismissal brief.

To no avail, as it happened.

Sweet ruled earlier this week that Facebook IPO investors may proceed with their class action, holding that their consolidated complaint made out a sufficient case that the company failed to disclose material information about the impact of mobile usage on Facebook revenues and that the company materially misrepresented its knowledge of that impact. The judge noted twice – once in a footnote and once deep in the ruling in his discussion of materiality – that his new decision might seem to be at odds with his dismissal of the derivative suits. But after a long quote from the previous ruling that included his prior words about Facebook’s “express and extensive warnings,” Sweet called the language “dicta (that) does not change the analysis here.”

So how does a judge move from his finding that a company has told investors all they need to know in advance of its IPO to a holding that (based on untested shareholder allegations, to be sure) those same disclosures and representations are materially deficient? Sweet gave two explanations: The derivative claims were based on an alleged breach of duty, which has a higher evidentiary standard, and class counsel from Bernstein Litowitz Berger & Grossmann and Labaton Sucharow managed to tweak shareholders’ allegations to distinguish their arguments from those in the derivative suit.

Wachtell: ‘Bully’ Icahn tried to shake us down with ‘malicious’ lies

Alison Frankel
Dec 19, 2013 23:38 UTC

In October, when I told you about a malpractice suit against Wachtell, Lipton, Rosen & Katz by Carl Icahn’s CVR Energy, I pointed out the undertone of devilish glee that ran through the Kansas federal court complaint. Icahn is the ultimate activist investor, a perennial foe of corporate board defender and long-term value guru Martin Lipton. Icahn beat Wachtell when he succeeded in acquiring CVR last year, despite CVR’s anti-takeover advice from the firm and Goldman Sachs and Deutsche Bank. His suit accusing Wachtell of malpractice – for supposedly failing to warn CVR’s board about the fees the company would have to pay Goldman and Deutsche Bank if Icahn prevailed – seemed to be icing on Icahn’s already tasty cake.

But now it’s Wachtell’s turn to make accusations.

In a pair of filings in Icahn’s case in Kansas and its own new suit against CVR and Icahn in New York State Supreme Court, the law firm argues that Icahn and CVR are maneuvering for position in a fee dispute with Goldman and Deutsche Bank, after CVR’s Icahn-controlled board refused to pay the banks $18 million apiece. According to Wachtell, Icahn has violated confidentiality orders in the fee litigation, maliciously misrepresented the facts of Wachtell’s work for CVR, and used the threat of the malpractice suit in an unsuccessful attempt to shake down Wachtell for a return of the money the law firm received from CVR. (Oh, and by the way, Wachtell also argues that Icahn improperly sued the firm in Kansas, when the appropriate venue for his complaint is New York, where State Supreme Court Justice Peter Sherwood is already presiding over the Goldman and Deutsche Bank claims that CVR breached their contracts when new board members backed by Icahn refused to pay their fees.)

Wachtell thinks it knows exactly why Icahn is engaged in what it regards as naked chicanery: to bully his anti-takeover nemeses at the law firm. “The Icahn-sponsored CVR litigation amounts to a scare tactic to intimidate those lawyers willing and able to help clients faced with Icahn’s opportunistic attacks,” Wachtell said in its New York case, which seeks a declaratory judgment that Wachtell committed no malpractice and that Icahn and CVR breached confidentiality orders protecting discovery from the banks’ fee litigation. “In a number of high-profile situations, Wachtell Lipton has helped clients fend off Icahn, including assisting Clorox in defeating an Icahn takeover assault in 2012 and assisting Dell when Icahn unsuccessfully sought to break up a premium transaction in order to buy the company for himself in 2013,” the firm asserted. “Icahn resents any resistance and thus has for years attacked Wachtell Lipton in the press for its fierce commitment to its clients. With his new litigation campaign, Icahn takes his bullying campaign to a new level, seeking to intimidate lawyers who help clients resist his demands by making wild allegations and threatening liability.”

How to resolve Indian consul arrest flap: retroactive immunity

Alison Frankel
Dec 18, 2013 22:51 UTC

The Dec. 12 arrest of Devyani Khobragade, a deputy consul general at India’s consulate in Manhattan, has precipitated quite a diplomatic brouhaha. Khobragade, who is accused of underpaying her nanny and falsifying documents to get the nanny into the United States, was handcuffed by diplomatic security staff, turned over to U.S. Marshals and strip-searched before being released on $250,000 bail. As anger escalated in India on Tuesday, with reports that Khobragade was forced to undergo a cavity search, Indian authorities retaliated by removing protective concrete barriers in front of the U.S. embassy in New Delhi. (The Marshals Service has said there was no cavity search.) On Wednesday, Secretary of State John Kerry expressed “regret” and “concern” to his Indian counterpart, and the White House told reporters that it is looking into Khobragade’s arrest “to ensure that all standard procedures were followed and that every opportunity for courtesy was extended.”

It’s a big mess, but there could be a relatively easy way out for both Khobragade and the State Department: retroactive diplomatic immunity. It’s a rare but not unprecedented State Department device to grant foreign officials full immunity for their actions even if they weren’t entitled to such broad protection when they committed the supposed misconduct.

As a consular official, Khobragade has only limited immunity, unlike high-level embassy personnel and their families. Diplomats and consulate officials are actually covered by two different international treaties, the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963. And as the State Department explained in its guide for law enforcement on diplomatic and consular immunity, consulate personnel are protected just for actions connected to their official duties. If Khobragade had been an Indian diplomat, she could not have been arrested for mistreating household staff, but a deputy consul is not immune from those charges because they’re not related to consulate work.

New ruling puts Fannie, Freddie in line for windfall MBS recovery

Alison Frankel
Dec 17, 2013 20:24 UTC

Has there ever been a more lopsided multibillion-dollar case than the Federal Housing Finance Agency’s fraud litigation against the banks that sold mortgage-backed securities to Fannie Mae and Freddie Mac? I don’t think U.S. District Judge Denise Cote of Manhattan, who is overseeing securities fraud suits against 11 banks that haven’t already settled with the conservator for Fannie and Freddie, has sided with the banks on any major issue, from the timeliness of FHFA’s suits to how deeply the defendants can probe Fannie and Freddie’s knowledge of MBS underwriting standards in the late stages of the housing bubble. But even in that context, Judge Cote’s summary judgment ruling Monday – gutting the banks’ defenses against FHFA’s state-law securities claims – is a doozy.

In effect, Cote’s decision will permit FHFA to recover more from MBS issuers than Fannie Mae and Freddie Mac would have made if their MBS investments had paid as promised. Of course, FHFA and its lawyers at Quinn Emanuel Urquhart & Sullivan and Kasowitz, Benson, Torres & Friedman still have to show that the banks knew or had reason to know that their offering documents misrepresented the mortgage-backed securities they were peddling to Fannie Mae and Freddie Mac. But if FHFA meets that burden, the banks can’t ward off claims under the state securities laws of Virginia and the District of Columbia by blaming Fannie and Freddie’s MBS losses on broad declines in the economy and the housing market.

What’s more, those state securities laws give FHFA the right to rescission – or restitution of the entire purchase price of the MBS Fannie and Freddie bought – plus fees, costs and, most importantly, interest. The Virginia statute mandates that securities fraudsters chip up 6 percent interest – more than the scheduled interest rate in many of the MBS trusts in which Fannie and Freddie invested. The banks, in other words, are now exposed to liability far beyond the actual losses Fannie Mae and Freddie Mac suffered – and even beyond what FHFA’s wards would have earned if the MBS trusts had performed exactly as the banks said they would at the time of sale. That extra interest would be a true windfall for FHFA.

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