Alison Frankel

Mid-MDL ‘Gelboim appeals’ are rare, despite N.Y. judge’s complaint

October 6, 2016

To put it mildly, U.S. District Judge Katherine Forrest of Manhattan is not a fan of the U.S. Supreme Court’s 2015 decision in Gelboim v. Bank of America, which she thrashed in a ruling Wednesday dismissing all claims in multidistrict antitrust litigation against banks accused of running up the price of aluminum by rigging the aluminum warehouse market. In a footnote, Judge Forrest blamed Gelboim for increasing the complexity of managing complex MDLs – exactly the opposite of the Supreme Court’s intention.

Pennsylvania appeals court tosses litigation funding deal as champerty

October 5, 2016

(Reuters) – I’m generally a fan of litigation financing, especially when participants in funding deals are sophisticated businesses and law firms hedging their bets on big commercial cases. (As regular readers know, I consider investing in mass tort litigation a different and much more dubious proposition.) Over the past six or eight years, big firm lawyers and general counsel at major corporations have slowly warmed to the idea of offloading litigation risk to investors, who are themselves an increasingly sophisticated bunch.

En banc 5th Circuit asks: Why do people buy into pyramid schemes?

October 4, 2016

(Reuters) – A class action titled Torres v. S.G.E. Management forced judges on the 5th U.S. Circuit Court of Appeals to decide a fundamental question about human nature: Is humanity’s default setting to swindle other people? In other words, if you knew a supposed investment opportunity was really a pyramid scheme in which your future profits depending on reeling in dupes, would you buy in?

Class counsel in VW clean diesel case: Without us, no government deal

October 3, 2016

 How is famed plaintiffs’ lawyer Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein like an offensive tackle?

Texas sanctions appeal confronts limits on pre-trial jury research

September 30, 2016

 An appeal under way in state court in Amarillo, Texas poses the provocative question: when do pre-trial surveys of potential members of a jury pool cross the line from permissible investigation to sanctionable efforts to influence community attitudes? According to four lawyers’ groups appearing as amici in the case, lawyers across the country should be paying attention to what they consider to be an attack on litigants’ right to be heard by a fair and impartial jury.

At heart of transgender rights case at SCOTUS, a controversial legal doctrine

September 29, 2016

(Reuters) – Briefing wrapped up this week in one of the most hotly anticipated petitions the U.S. Supreme Court will consider this fall: a Virginia school board’s request for the justices to review a federal circuit ruling that under the Department of Education’s interpretation of Title IX, a transgender high school student who identifies as a boy is entitled to use boys’ bathrooms at school.

9th Circuit in Picasso case: U.S. judges can look beyond briefs to interpret foreign law

September 28, 2016

(Reuters) – U.S. district court judges spend their days swimming in the deep sea of American law, usually federal law, but they easily adapt when they are called upon to apply state law. Once in a while, though, U.S. courts have to interpret the law of other countries – and in those instances, federal judges can be like saltwater fish dumped in a freshwater pond.

2nd Circuit in Vivendi case: Corporations can be liable for prolonging misconceptions

September 27, 2016

(Reuters) – The 2nd Circuit on Tuesday upheld a 2010 judgment of about $50 million against the French media conglomerate Vivendi. In an opinion by Judge Debra Livingston, the appeals court rejected the company’s arguments that it did not deceive a class of American Depository Shareholders with assurances in the early 2000s that Vivendi had plenty of cash on hand, despite internal communications about a looming liquidity crisis.

Yelp and the constitutional right to distribute bad reviews

September 23, 2016

(Reuters) – In January 2013, an ex-client of the California personal injury lawyer Dawn Hassell posted a one-star review of Hassell’s firm on Yelp, the online consumer site. The reviewer used a pseudonym, but Hassell figured out it was Ava Bird, whom she had represented briefly. Hassell tried to get Bird to change or take down the review, which the lawyer said was factually inaccurate and defamatory. When Bird doubled down, Hassell sued her in state court in San Francisco. In July 2013, Hassell won a default judgment against Bird, who did not appear in court to defend her supposedly defamatory statements.

Judge wanted 6th year associates to argue Fitbit motion, MoFo lets him down

September 23, 2016

(Reuters) – U.S. District Judge James Donato of San Francisco is one of about three dozen federal judges in California, Texas and Massachusetts to have made a real commitment to promoting the professional development of young lawyers. According to the group Next Generation Lawyers, these judges have all issued orders, sometimes standing and sometimes case-specific, encouraging firms to permit relatively junior associates to present arguments and question witnesses. A few of the judges offer an incentive: They will entertain oral arguments on motions that would otherwise be decided on the briefs only if firms designate junior lawyers to argue.