I’ll admit it: I was among the predictors of doom last year when a three-judge panel of the 3rd U.S. Circuit Court of Appeals issued its decision in Carrera v. Bayer. The Carrera decision, as you may recall, addressed the requirement that class membership be “ascertainable” in order for class actions to be certified. The facts of the case – a consumer class action claiming deceptive labeling of a Bayer diet supplement – were idiosyncratic, but the appellate holding that affidavits from purported purchasers aren’t sufficient to ascertain class membership seemed broad indeed. Consumer class action advocates asked for en banc review, asserting a credible argument that the decision was a death knell for claims based on low-cost items for which purchasers don’t save receipts. The 3rd Circuit declined to hear the case en banc, but in a dissent, four judges said they were worried that the Carrera decision went too far, giving rise to “fear that some wrongs will go unrighted because wrongdoers gamed the system.”
Who would ever have predicted that convicted al Qaeda operative Zacarias Moussaoui would be more eager to provide testimony to help terror victims than former Virginia congressman and House majority leader Eric Cantor? Moussaoui, as I told you yesterday, has contacted the federal district court in Brooklyn, offering to provide information about al Qaeda funding to plaintiffs suing Arab Bank and other financial institutions. Cantor, meanwhile, has been subpoenaed in a different terror-funding case – accusing Bank of China of financing Palestinian Islamic Jihad – to testify about his meeting in Israel with Israeli Prime Minister Benjamin Netanyahu in August 2013. On Sept. 30, the U.S. House of Representatives’ general counsel moved to quash the subpoena.
Zacarias Moussaoui, who pleaded guilty in 2005 to conspiring in al Qaeda’s Sept. 11 attacks on the United States, says he has information about how al Qaeda financed its operations and he wants to provide it to lawyers representing terrorism victims.
If you bought Alibaba shares last month when the Chinese mobile commerce company went public, you participated in the biggest-ever initial public offering. Alibaba raised $25 billion from investors when its shares began to trade on the New York Stock Exchange. Its price has dropped a bit from its record high of more than $99 on the first day of trading, but as of Thursday afternoon Alibaba was swinging back up toward $90 a share.
Is there any Allergan shareholder who isn’t aware that William Ackman’s hedge fund, Pershing Square Capital, and the Canadian pharmaceutical company Valeant slipped through a loophole in the securities laws when they teamed up on a hostile bid for the Botox maker? Or that Allergan believes the loophole is actually a violation of the law and Pershing is engaged in insider trading? If so, I’d like to know the name of the remote Pacific atoll where you’ve apparently been luxuriating without the Internet, newspapers and television for the past few months. This cleverly lawyered deal has been chronicled (including by me) with the sort of play-by-play analysis that’s usually reserved for NFL playoff games or middle-school romances.
Former AIG honcho Maurice “Hank” Greenberg’s $50 billion Fifth Amendment claims against the U.S. government may be, as New Yorker writer John Cassidy recently said, more of a comic extravaganza than a legitimate case, but there’s no doubt that the Greenberg trial underway in the U.S. Court of Federal Claims will contribute to the historical record of the government’s response to the 2008 economic crisis. Former U.S. Treasury Secretary Hank Paulson testified Monday, and his successor, Tim Geithner, and former U.S. Federal Reserve Chairman Ben Bernanke are also on Greenberg’s witness list. We can all thank Greenberg for muscling their sworn testimony into public, regardless of the crotchety old rich guy’s gall and his long odds of actually winning.
(Reuters) – On Wednesday, the $200 million activist hedge fund Stilwell Value and its founder, Joseph Stilwell, filed a complaint against the Securities and Exchange Commission in federal court in Manhattan. Stilwell’s lawyers at Skadden, Arps, Slate, Meagher & Flom and Post & Schell are asking for a declaratory judgment to block the SEC from bringing an administrative proceeding against Stilwell, who has been under investigation since 2012 for interfund lending. According to Stilwell’s complaint, if the SEC follows through with its threats to sue him in an administrative proceeding – rather than prosecuting its case against him in federal district court – it will be breaching the U.S. Constitution.
When the U.S. Supreme Court issued its 2013 decision in Comcast v. Behrend, class action defendants practically rubbed their hands in glee. Comcast, as you know, held that plaintiffs must offer a classwide damages model in order to be certified to litigate as a class. The 5-4 decision was a followup punch to the court’s 2011 opinion in Wal-Mart v. Dukes, which said that to be certified, plaintiffs must establish that their central allegation applies across the class and is “capable of classwide resolution.” In combination, Wal-Mart and Comcast were expected to make it much easier for defendants to defeat certification of sprawling classes agglomerating claims by plaintiffs with different sorts of supposed injuries.
(Reuters) – There were at least two reasons why U.S. Supreme Court watchers were paying attention to a petition for review by Jack Kirby’s heirs. The first is obvious: Kirby was a legendary comic-book artist and writer who had a big role in the creation of the X-Men, Thor, the Hulk and the Fantastic Four – enduring characters that continue to generate big returns for Marvel Entertainment and its parent, the Walt Disney Company. The other reason why this case was notable is more abstruse, but ultimately of bigger consequence than Jack Kirby’s rights to characters he helped create: Can freelancers reclaim copyrights to work they sold before the Copyright Act of 1976 took effect?