Alison Frankel

The D.C. Circuit’s gratuitous ruling on CFPB constitutionality

October 11, 2016

Judge Brett Kavanaugh, author of the District of Columbia U.S. Circuit Court of Appeals’ majority opinion Wednesday in PHH Corporation v. Consumer Financial Protection Bureau, is a compelling writer. His tour-de-force 13-page summary at the beginning of the court’s 2-1 ruling declares the CFPB unconstitutional in words that will long be quoted by the agency’s critics.

How the Texas AG beat SEC’s fraud case

October 10, 2016

(Reuters) – In 2011, before he was elected to serve as the Attorney General of Texas, Ken Paxton was a practicing lawyer and an influential member of the Texas House of Representatives. That July, he struck a deal with the founder of Servergy, a computer company developing cloud data storage servers. After a meeting with the company’s then CEO, Paxton said he’d recruit investors to buy shares in the company’s private offerings. Servergy, in turn, agreed to pay him a 10 percent commission.

Lawyers in Florida’s ‘worst case of greed and dereliction of duties’ are disbarred

October 7, 2016

(Reuters) – Contingency fee lawyers can be heroes. Representing someone who has been wronged by a big business – and getting paid for it only if you recover money for your client – is hard, important work that gives ordinary people a fair shot against rich defendants. I am convinced that the contingency fee system makes people safer and the justice system fairer.

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.