Opinion

Alison Frankel

Judge Posner backs down (for now) in antitrust policy duel with U.S.

Alison Frankel
Jul 2, 2014 19:50 UTC

It’s not often that Judge Richard Posner of the 7th U.S. Circuit Court of Appeals concedes that he might have been wrong. (Just ask U.S. Supreme Court Justice Antonin Scalia and his “Reading Law” co-author Bryan Garner, who have been engaged in a back-and-forth war of words with Posner since he first harshly criticized their research back in August 2012.)

But it’s also not often that a federal appellate panel suggests that it has a deeper understanding of U.S. foreign economic policy concerns than the Justice Department.

On Tuesday, Posner and two other 7th Circuit judges agreed to reconsider their March 27 decision in Motorola’s antitrust suit against international liquid crystal display screen makers. That’s a relief to both Motorola and the U.S. government; the panel’s opinion, written by Posner, had effectively erased U.S. liability for foreign price-fixing cartels that sell component parts to foreign subsidiaries of U.S. companies — even if the subsidiaries’ purchasing decisions were dictated by the U.S. headquarters and even if the cartel’s products ended up being sold to U.S. consumers.

Posner reasoned that the foreign conduct in those circumstances didn’t directly affect domestic or import commerce, so the alleged price fixing didn’t satisfy the requirements of the Foreign Trade Antitrust Improvements Act amendment to the Sherman Act. “The defendants did not sell in the United States and, if they were overcharging, they were overcharging other foreign manufacturers — the Motorola subsidiaries,” Posner wrote. “The position for which Motorola contends would if adopted enormously increase the global reach of the Sherman Act, creating friction with many foreign countries.”

As you would expect, the ruling prompted Motorola’s lawyers at Goldstein & Russell to petition for an en banc rehearing, arguing that the panel’s decision was contrary to 7th Circuit precedent on the exact same provision of the Sherman Act — and that it would have disastrous consequences not just in private antitrust litigation but also in the U.S. government’s prosecution of international price-fixing conspirators. AU Optronics officials, the en banc petition said, had already cited the panel’s ruling in the 9th Circuit appeal of their convictions for fixing LCD panel prices. And Posner and his panel colleagues (Judges Michael Kanne and Ilana Rovner), Motorola said, had remade U.S. antitrust policy without even consulting the executive branch, since the panel issued its interlocutory opinion based only on the trial judge’s decision and preliminary briefs from Motorola and the defendants.

SCOTUS Libor case, by itself, won’t revive antitrust claims

Alison Frankel
Jul 1, 2014 19:14 UTC

Don’t get too excited about the news Monday that the U.S. Supreme Court has agreed to hear the appeal of bond investors whose antitrust claims against the global banks involved in the Libor-setting process were tossed last year.

Untold billions of dollars are at stake in the Libor litigation, in which investors in all sorts of securities pegged to the London Interbank Offered Rate claim that the banks conspired to manipulate the interest rate benchmark. There are now about 60 cases consolidated in the Libor multidistrict litigation before U.S. District Judge Naomi Reice Buchwald in Manhattan, asserting a potpourri of state and federal securities, racketeering and fraud claims as well as violations of federal antitrust laws. Last year, Judge Buchwald gave the bank defendants an almost priceless gift when she concluded that U.S. antitrust laws don’t cover the sort of rate-rigging alleged in the Libor scandal because the banks’ conduct wasn’t anticompetitive. Buchwald has permitted other pieces of the litigation to move forward, most recently refusing to dismiss classwide unjust enrichment claims in an 80-page decision last week, but has refused to re-instate the big-money antitrust allegations, which offer the prospect of treble damages.

The 2nd U.S. Circuit Court of Appeals has been no help to Libor antitrust claimants either. Although Judge Buchwald entered judgment so class action lawyers could appeal her antitrust holding, the 2nd Circuit refused to take the case, holding in an unpublished order in October 2013 that it did not have jurisdiction over the appeal because Buchwald had not yet disposed of all claims in the consolidated Libor litigation.

New York’s (stalled) grab for jurisdiction over foreign businesses

Alison Frankel
Jun 30, 2014 21:45 UTC

Should New York courts have the right to hear cases against international businesses with any operations in the state? That’s what the state’s top administrative judge asked for — and very nearly got — from the state legislature. The proposed changes to state laws died on June 20, the last day the state senate was in session. But according to the chair of the New York courts’ advisory committee on civil procedure, the law to reclaim jurisdiction over foreign corporations will probably be revived when the legislature returns to session, possibly as soon as this fall.

New York’s contemplated law is a direct response to last January’s decision by the U.S. Supreme Court in Daimler v. Bauman. The Daimler opinion, written by Justice Ruth Bader Ginsburg for a unanimous court, restricted jurisdiction over foreign businesses to the states in which those business are “at home.” Jurisdiction isn’t justified just because a corporation has substantial operations in a particular state, the court held. Instead, it said, a state must be the site of incorporation or the base of the business’s U.S. operations in order to claim jurisdiction.

The 2nd U.S. Circuit Court of Appeals has since cited Daimler in at least two decisions tossing claims for lack of jurisdiction, according to a June 18 client alert by the law firm Akerman, so it’s no wonder that New York’s courts regarded the ruling as a threat to their turf. Jurisdiction always seems like a wonky topic, but it matters a lot to both courts and corporations. Courts, of course, have a strong institutional interest in protecting their power, since they only exist to hear cases. Businesses, meanwhile, want to control where they can be sued; that’s why, for instance, Delaware-incorporated businesses are rushing to enact provisions that require their shareholders to litigate in Chancery Court.

D.C. Circuit expands attorney-client shield for businesses

Alison Frankel
Jun 27, 2014 21:42 UTC

U.S. District Judge James Gwin of Washington, D.C., created a huge stir last March when he ruled that documents from KBR’s internal investigation of government contract fraud were not protected by attorney-client privilege and must be disclosed to a whistleblower who sued KBR under the False Claims Act. Even though KBR’s in-house lawyers oversaw the investigation — which examined allegations that the company and a subcontractor inflated costs and accepted kickbacks related to military contracts in Iraq — Gwin said that the privilege didn’t apply because (among other things) KBR’s primary purpose in the investigation was to comply with regulatory requirements, not to obtain legal advice.

His reasoning scared other companies in regulated industries, which feared that notes from their internal investigations would also be exposed to discovery demands by whistleblowers. When KBR filed a mandamus appeal to the U.S. District Court of Appeals for the D.C. Circuit, the Chamber of Commerce, the National Association of Manufacturers and three other trade groups quickly chimed in with an amicus brief arguing that Gwin’s ruling would ultimately weaken regulatory compliance because it would discourage companies from conducting internal reviews.

The D.C. Circuit agreed. On Friday, judges Brett Kavanaugh, Thomas Griffith and Sri Srinivasan granted KBR a writ of mandamus, overturning Gwin’s ruling and articulating a business-friendly standard for attorney-client privilege over materials from an internal investigation. Those documents are protected, according to the D.C. Circuit, as long as one of the significant purposes of the investigation — but not necessarily the only purpose — is to obtain legal advice. The privilege applies, the opinion said, “even if there were also other purposes for the investigation and even if the investigation was mandated by regulation rather than simply an exercise of company discretion.”

Why Parmalat litigation v. Grant Thornton is like 0-0 soccer game

Alison Frankel
Jun 26, 2014 19:43 UTC

If it is possible for an appellate ruling on the jurisdiction of bankruptcy trustees’ claims against an auditor to be snicker-inducing, Judge Richard Posner‘s opinion Wednesday for the 7th U.S. Circuit Court of Appeals in Parmalat v. Grant Thornton is that decision.

Posner precedes his recounting of the history of this litigation — which involves claims by two bankruptcy trustees for the once fraud-wracked Italian dairy conglomerate against former auditor Grant Thornton — by noting that he would “simplify ruthlessly.” (I will try to follow his example.) Near the end of the ruling, after he describes the cases’ journey from Illinois state court through federal courts in New York and Illinois, he observes that the 7th Circuit’s decision to send the cases back to Illinois state court where they began will effectively end any hope of bringing the litigation to a close “before it a chance to exceed the length of the Trojan War.” Funny, right?

I’m writing this post as the United States soccer team is facing off against Germany, so soccer is on my mind. The Parmalat suits against Grant Thornton remind me of a scoreless soccer match. We’ve seen some great footwork from the lawyers on both sides — Quinn Emanuel Urquhart & Sullivan for the main Parmalat bankruptcy trustee, Diamond McCarthy for the Parmalat Capital trustee, and Winston & Strawn for Grant Thornton — but neither side has put the ball in the net for a goal. Posner’s instruction that the cases return to state court puts the litigation into sudden-death overtime.

On one-year Windsor anniversary, 9th Circuit delivers best gay rights gift

Alison Frankel
Jun 25, 2014 19:12 UTC

Sometimes, the best way to understand the broad implications of a court’s decision isn’t to read the ruling itself but rather the dissent. That was certainly true a year ago, when Justice Antonin Scalia attacked the U.S. Supreme Court’s decision in Windsor v. U.S., which struck down federal prohibitions on same-sex marriage as an unconstitutional intrusion on the equal rights of gays and lesbians. The majority’s ruling was carefully constrained, but a furious Scalia predicted that the stirring language of Justice Anthony Kennedy’s opinion would reverberate more loudly in the lower courts than the actual holding. As we now know from decisions all over the country striking down restrictions on same-sex marriage, Scalia was right.

So if you want to know just how monumental a gay-rights ruling the 9th U.S. Circuit Court of Appeals issued Tuesday, just two days short of Windsor’s one-year anniversary, take a look at the dissent written by Judge Diarmuid O’Scannlain and joined by Judges Jay Bybee and Carlos Bea. O’Scannlain posits that his colleagues’ decision in the case, GlaxoSmithKline v. Abbott Laboratories, “precludes the survival under the federal Constitution of long-standing laws treating marriage as the conjugal union between a man and a woman.” But it’s even more drastic than that, according to the dissent: The appellate decision has changed the standard for evaluating all laws targeting gays and lesbians, the dissent said, “with far-reaching — and mischievous — consequences.”

If the 9th Circuit dissenters turn out to be as good at fortune-telling as Scalia, states in the Western swath of this country — California, Oregon, Washington, Montana, Idaho, Nevada, Arizona, Hawaii and Alaska — won’t be able to curtail equal rights based on sexual orientation, even if the states think they have a rational basis for doing so. That’s a much farther-reaching holding even than the 10th Circuit’s decision Wednesday that Utah’s ban on same-sex marriage is unconstitutional — and for gay rights proponents, it’s quite an anniversary present.

Forum selection clauses are killing multiforum M&A litigation

Alison Frankel
Jun 24, 2014 21:00 UTC

It was entirely predictable that last spring, after Safeway announced that it had agreed to accept a $9.2 billion offer from the private equity firm Cerberus Capital, shareholders would rush to file suits challenging the deal. As you know, shareholder M&A suits have become an inevitable consequence of merger announcements, and, to the frustration of defendants, are often brought in more than one jurisdiction — which has meant, in years past, that if defendants couldn’t persuade judges to defer to other courts, they sometimes had to defend against the same claims by multiple plaintiffs firms in multiple courts.

Defendants thought they’d at least solved the multiforum problem a year ago, when then Chancellor Leo Strine ruled in Boilermakers v. Chevron that corporations may adopt and enforce bylaws requiring shareholders to bring suits in Delaware. The plaintiffs firms that had challenged bylaws adopted by Chevron and Fedex decided not to appeal Strine’s decision to the Delaware Supreme Court, though the state justices may yet have a say on Chevron’s forum selection clause via a parallel shareholder suit that was filed in federal court in San Francisco. (U.S. District Judge William Alsup has said he may certify the bylaw validity to the Delaware Supreme Court in that case.) Under prevailing Delaware precedent, the only way forum selection bylaws wouldn’t work for Delaware corporations was if judges in other jurisdictions refused to honor the provisions.

So far, all of the out-of-state judges to consider Delaware forum selection bylaws have deferred to the provisions — with the California state judge presiding over a wing of the Safeway litigation the latest to rule that a forum bylaw is enforceable. (Sullivan & Cromwell has a client alert describing all four decisions; I first heard about the S&C memo from The Chancery Daily.)

SCOTUS Halliburton ruling could backfire for securities defendants

Alison Frankel
Jun 23, 2014 21:29 UTC

Let’s state the obvious: Big Business did not get what it wanted Monday from the U.S. Supreme Court, which refused in Halliburton v. Erica P. John Fund to overturn Basic v. Levinson, the 25-year-old precedent that permits shareholders to bring classwide claims of securities fraud.

The justices didn’t even adopt the alternate approach — suggested by some Halliburton supporters in friend-of-the-court briefs — of requiring plaintiffs who want to sue as a class to show that supposed corporate misstatements had an impact on share prices. Instead, the court ruled only that defendants may argue against class certification with evidence that share prices didn’t drop as a result of the alleged fraud.

Halliburton’s lawyer, Aaron Streett of Baker Botts, told me that’s still a “significant win,” especially considering that the justices might have upheld the 5th U.S. Circuit Court of Appeals and barred defendants from using such price-impact evidence to keep shareholders from banding together.

Argentina’s public comments put U.S. lawyers in awkward spot

Alison Frankel
Jun 19, 2014 20:42 UTC

At a hearing Wednesday afternoon in Manhattan, Argentina’s lawyer, Carmine Boccuzzi of Cleary Gottlieb Steen & Hamilton, informed U.S. District Judge Thomas Griesa that Argentine officials “will be in New York next week” in order to begin negotiations with the hedge funds whose bond litigation has forced the country to the brink of a sovereign debt crisis.

The very next morning, at a press briefing, Argentine Cabinet Chief Jorge Capitanich appeared to contradict Cleary’s representations to Griesa: “There is no delegation prepared for a possible trip to the United States,” he said, according to a Reuters report from Buenos Aires.

Capitanich is the third Argentine official this week whose public comments seem to be at odds with positions the country’s lawyers have espoused in U.S. courts. Earlier this month, Cleary partner Boccuzzi assured Judge Griesa that Argentina was not making contingency plans to restructure its debt in the event that the U.S. Supreme Court upheld Griesa’s orders requiring the country to pay hedge fund holdouts about $1.5 billion at the same time that it makes coupon payments to exchange bondholders that participated in previous restructurings. Argentina also said in a brief to the Supreme Court that it would comply with U.S. court orders.

Now Argentina wants to negotiate with hedge funds. Is it too late?

Alison Frankel
Jun 18, 2014 23:26 UTC

If Argentina truly wants to resolve its debt crisis without defaulting on tens of billions of dollars in restructured bonds, its politicians had better stop giving speeches.

At a hearing Wednesday afternoon in Manhattan federal court, Argentina’s lawyers informed U.S. District Judge Thomas Griesa that Argentine officials “want to engage in dialogue” with holdout hedge funds that are owed $1.5 billion under Griesa orders upheld by the U.S. Supreme Court on Monday. But the judge, who has been presiding for more than a decade over litigation between Argentina and hedge funds that refused to exchange defaulted bonds, seemed more interested in a fiery speech on Monday night by Argentine president Cristina Fernandez de Kirchner, in which she said the country would not submit to “extortion” by the hedge funds; and by a second speech Tuesday by the Argentine economy minister, who disclosed plans to restructure bonds to avoid “attachments.”

Argentina counsel Carmine Boccuzzi of Cleary Gottlieb Steen & Hamilton tried to portray the speeches as political posturing, but Griesa said they suggested that Argentina was on the brink of violating U.S. court orders. He asked lawyers for NML and Aurelius Capital to draft a proposed order stating that if Argentina attempted to restructure its debt as the economy minister proposed Tuesday, it would be in violation of his previous orders. NML and Aurelius had wanted Griesa to authorize discovery on Argentina’s restructuring plan, which the judge didn’t agree to do. Nevertheless, Griesa’s comments at the hearing put Argentina on notice that Griesa plainly doesn’t trust the country’s leaders.

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