On Monday, the U.S. Supreme Court declined to grant review to two small Nebraska banks facing class action allegations that they failed to post stickers on ATM machines to alert users about add-on fees. That might not seem like a surprise, except that the certiorari petition by the banks’ counsel at Mayer Brown raised a question that the Supreme Court has previously struggled with: whether class action plaintiffs asserting federal laws that provide statutory damages have constitutional standing to sue even if they haven’t suffered any actual injury. The justices heard a different case posing the exact same question in 2011 in First American Financial v. Edwards, but didn’t resolve the issue because they dismissed the appeal on the last day of the term in June 2012. Class action opponents like the U.S. Chamber of Commerce, the Washington Legal Foundation and the Association of Credit and Collection Professionals were hoping that the Nebraska banks’ case was a new chance to end litigation by uninjured plaintiffs whose small, individual statutory damages claims turn into a big nuisance when they’re accumulated in class actions.
If there were any remaining shreds of doubt that Delaware Chancery Court has come to regard financial advisors in M&A deals with considerable mistrust, they ought to be erased by Vice-Chancellor Travis Laster‘s 92-page decision Friday in a shareholder class action stemming from Warburg Pincus’s $17.25-per-share acquisition of the ambulance company Rural/Metro.
The oil and gas industry was stunned this week a $319 million verdict for Energy Transfer Partners, courtesy of a state court jury in Dallas, Texas. Jurors agreed with ETP’s lawyers at Lynn Tillotson Pinker & Cox that ETP and Enterprise Products had a binding agreement to develop a pipeline to carry crude oil from Oklahoma to refineries on the Gulf of Mexico, and that Enterprise breached the agreement when it decided instead to hook up with a Canadian pipeline company called Enbridge.
Steven Davis, the onetime LeBoeuf Lamb chairman who engineered his firm’s 2007 merger with Dewey Ballantine, then presided over the titanic collapse of Dewey & LeBoeuf in 2012, is now an accused felon, along with Davis’s longtime deputy, Stephen DiCarmine, and Dewey’s former CFO Joel Sanders. The three criminal defendants and two other former Dewey financial professionals have also been named in an enforcement action by the Securities and Exchange Commission.
After oral arguments Wednesday morning at the U.S. Supreme Court in Halliburton v. Erica P. John Fund, I ran into a few securities class action plaintiffs lawyers in the court’s lobby, at the statue of Chief Justice John Marshall. They were looking jaunty indeed. The consensus in their little group was that the justices showed little inclination to toss out the 1988 precedent that has been the foundation of the megabillion-dollar securities class action industry. They regarded Wednesday’s argument as a hopeful portent that classwide securities fraud litigation is likely to survive the Supreme Court’s re-examination of Basic v. Levinson.
On Wednesday, the U.S. Supreme Court will hear oral arguments in Halliburton v. Erica P. John Fund, the most momentous securities case of the last quarter century. When this term ends in June, we’ll know whether the fraud-on-the-market theory that the Supreme Court codified in the 1988 case Basic v. Levinson will remain intact as the foundation of the securities class action industry or whether shareholders will lose the leverage of classwide damages claims for supposed fraud under the Exchange Act of 1934. I’ve been saying it for months: Untold billions of dollars hang on the justices’ determination in the Halliburton case.
By Alison Frankel
Feb 28 (Reuters) – If the allegations of the minority shareholders of a small Ohio property insurer called National Interstate are true, the conduct of National Interstate’s majority owner, Great American Insurance, is egregious enough to make even Charles Ergen blush. A subsidiary of the insurance megalith American Financial, Great American proposed in early February a surprise $28-per-share tender offer to acquire the 48 percent stake in National Interstate that it doesn’t already own. Even its own financial advisor, Duff & Phelps, considered that price inadequate, as did the four independent board members of National Interstate, who urged Great American to establish a special committee to negotiate a fair price. That suggestion went nowhere, but earlier this month Great American and American Financial boosted the bid to $30 – so long as the independent directors agreed to support the sweetened offer. They protested to no avail: Six National Interstate directors in the sway of Great American and American Financial voted to announce a neutral position on the tender offer, according to an account of the dispute by The Wall Street Journal’s Liz Hoffman, and the bid went public.
In 2012 and 2013, when the 5th Circuit Court of Appeals was considering the question of whether Dodd-Frank’s anti-retaliation provisions protect whistleblowers who report their concerns internally, rather than to the Securities and Exchange Commission, the SEC stayed out of the fray. The case, Khaled Asadi v. G.E. Energy, centered on the tension between two sections of Dodd-Frank, one of which seemed to define whistleblowers only as those who tip the SEC about potential misconduct by their employers. In its Dodd-Frank implementation process, the SEC attempted to resolve the tension, issuing rules to clarify that whistleblowers are protected from retaliation regardless of whether they report concerns to the agency or up the chain of command through internal compliance programs, as the older Sarbanes-Oxley Act had encouraged. The SEC’s rules have convinced most of the federal trial judges who have considered the scope of Dodd-Frank whistleblower protections; courts have typically cited the deference due to the agency’s interpretation of a law it is responsible for enforcing.
A ruling Wednesday by a federal judge in Salt Lake City, prohibiting the television streaming service Aereo from transmitting intercepted broadcasts from its antennas in Utah to subscribers’ Internet devices, lays out precisely the question that the U.S. Supreme Court will confront in April in a separate challenge to Aereo’s business model. Are Aereo and similar services content hijackers taking advantage of the hard work of those who produce and transmit television shows? Or are they mere facilitators, providing the technical means for individual viewers to watch private transmissions of TV shows? The answer to that question will lie in how the Supreme Court interprets a single clause of the Copyright Act, in a case that will test Congress’s ability to write laws that anticipate technological change.
On Tuesday, the Republic of Argentina asked the justices of the U.S. Supreme Court to grant review of a pair of rulings by the 2nd Circuit Court of Appeals that, according to Argentina’s brief, have put millions of Argentineans on the brink of economic catastrophe. The 2nd Circuit decisions, as you may recall, held that under the pari passu, or equal footing, clauses of defaulted Argentine bonds, Argentina may not make payments to bondholders who participated in two rounds of restructuring before it pays more than $1 billion to holdout distressed debt investors that refused to exchange their defaulted bonds. In the cert petition, Argentina’s new Supreme Court counsel, Paul Clement of Bancroft, reprises arguments that failed to sway U.S. District Judge Thomas Griesa and the 2nd Circuit when Cleary Gottlieb Steen & Hamilton previously asserted them. But Argentina is counting on the Supreme Court’s proven interest in the boundaries of sovereign immunity, and, if that doesn’t do the trick, in the court’s federalism concerns.