Alison Frankel

New Delaware forum selection fight: Shareholders sue directors for waiving clause

April 14, 2016

(Reuters) – In Delaware shareholder litigation, to quote the immortal Roseanne Roseannadanna, it’s always something. Just two years ago, plaintiffs lawyers were squirming under the strictures of forum selection bylaws and charter amendments that required shareholders to litigate their claims in Delaware Chancery Court rather than friendlier jurisdictions. But now plaintiffs’ lawyers at Andrews & Springer and Gainey McKenna & Egleston are suing board members at the biopharma company CytRx for waiving the company’s forum selection bylaw.

In first appellate analysis of Halliburton, 8th Circuit boosts securities defendants

April 13, 2016

(Reuters) – At 8 a.m. on Sept. 14, 2010, the electronics retailer Best Buy issued an optimistic press release boosting its projected earnings per share by ten cents. The company’s opening stock price that day reflected the good news. Best Buy was up by nearly $3 per share, a 7.5 percent rise over the previous day’s close.

Oaktree accused of shuttering fund to evade $50 million GM clawback suit

April 12, 2016

Remember the story of the Mayer Brown paralegal mistake that could cost GM lenders $1.5 billion? Now there’s a new development in the clawback litigation spurred by that fatal error. Creditors of the pre-bankruptcy GM are alleging that an Oaktree fund found a brazen way to sidestep their demand for the return of their money: The fund shut itself down before a court could decide whether it must pay back about $50 million.

Meet the Thai math prof whose copyright case is headed for SCOTUS – again

April 11, 2016

(Reuters) – In the eight years since the publisher John Wiley & Sons first sued him for copyright infringement, almost all of the particulars of Supap Kirtsaeng’s life have changed. Back then, he was an unmarried graduate student in mathematics at the University of Southern California with a side business reselling Asian-produced versions of American textbooks. Today, after nearly a decade of litigation setbacks and advances, Kirtsaeng is back in Thailand. His textbook business is shuttered and he and his old girlfriend broke up, but he found a job as a professor, married a colleague and is finally feeling financially secure.

D.C. Circuit sends ominous signal on CFPB constitutionality

April 8, 2016

Next Tuesday morning, three judges on the District of Columbia U.S. Circuit Court of Appeals will hear arguments about whether the Consumer Financial Protection Bureau – a centerpiece of the 2010 Dodd-Frank Wall Street Reform Act – is unconstitutional. And based on an order issued this week by the three Republican appointees who will hear the case, CFPB lawyer Lawrence DeMille-Wagman had better be ready to defend his agency’s legitimacy.

There are no heroes in fight over pseudonyms in Ashley Madison MDL

April 7, 2016

(Reuters) – It’s honestly hard to figure out which side is less sympathetic: Ashley Madison customers who wanted to use fake names in data-breach litigation against the adultery-enabling website or Ashley’s parent company, Avid Dating Life, which promised clients secrecy but, when that promise was broken, demanded its customers use their real names to sue. Like the judge overseeing the consolidated Ashley Madison data breach litigation, U.S. District Judge John Ross of St. Louis, I ended up backing Avid Dating, but only because the site’s arguments happen to align with my own interests.

Uber and the gig economy’s existential litigation threat

April 6, 2016

(Reuters) – Uber calls itself a tech company. Its product, according to the company, is not transportation but a mobile device app that connects customers who want rides with drivers who supply them. And those drivers, according to Uber, are not employees entitled to protection under state and federal labor laws. They are independent contractors who use Uber’s app to monetize their time and access to a car.

Immigration case at SCOTUS could turn on wonky administrative law issue

April 5, 2016

(Reuters) – The future of four million undocumented immigrants in the U.S. rests on the subtle and surprisingly ill-defined distinction between a policy statement and a substantive rule.

Despite Daimler, N.Y. judge finds jurisdiction over foreign banks in terror-funding cases

April 4, 2016

(Reuters) – New York’s highest court ruled in 2012, in a case called Licci v. Lebanese Canadian Bank, that when foreign banks avail themselves of the state banking system – even if only to use a correspondent account at a New York bank to effect wire transfers – they are subject to the long arm of the New York courts. The 2nd U.S. Circuit Court of Appeals, which had referred that question to New York’s Court of Appeals, followed up with its own Licci decision in 2013, holding that the U.S. Constitution’s Due Process Clause does not preclude specific jurisdiction against defendants that have taken even minimal advantage of “the privilege of doing business” in New York.

Uber is the victim of Judge Rakoff’s curiosity in antitrust case

April 1, 2016

Uber made a fateful decision early in the litigation of an antitrust class action against its co-founder and CEO Travis Kalanick. The company believed there was no way the Manhattan federal court complaint – in which customer Spencer Meyer alleged a price-fixing conspiracy among the hundreds of thousands of drivers who independently signed up with the online car service – would survive a motion to dismiss. The case was before U.S. District Judge Jed Rakoff, who has a well-earned reputation for moving his dockets quickly. So Uber elected not to move to invoke the arbitration provision in its terms of service.