If Allergan’s insider trading and disclosure suit against the hostile bidders Valeant and Pershing Square is a bluff, Pershing just called it.
Judge Richard Posner of the U.S. 7th Circuit Court of Appeals has confessed to reading the occasional legal thriller, but he’s no fan of the estate of Arthur Conan Doyle, the author who created the indelible detective Sherlock Holmes.
A few days after the Canadian pharmaceutical company Valeant announced that it had teamed up with the activist investor William Ackman to bid for Botox maker Allergan, Wachtell, Lipton, Rosen & Katz wrote a teeth-gnashing client alert about the new threat to corporate targets from the unholy alliance of a strategic bidder with an activist hedge fund. Commentators were already raising questions about whether Ackman and Valeant had engaged in insider trading, because Ackman secretly accumulated Allergan shares based on his knowledge of Valeant’s imminent takeover bid. But in that early memo, Wachtell didn’t claim Valeant and Ackman had broken insider trading rules. Instead, the firm bemoaned Valeant and Ackman’s “conspicuously structured” stratagem that “took express pains to sidestep” the Williams Act’s bar on trading in advance of a tender offer.
Here’s a new twist on an old story. A securities class action firm in the early stages of a fraud case tracks down a former employee of the defendant. The former employee dishes dirt about the company to an investigator, a boon for plaintiffs’ lawyers who have to draft a detailed complaint about corporate wrongdoing without the benefit of discovery from the defendant. The company protests, asserting that former employee was under a confidentiality agreement.
There’s been a lot of talk in the Argentine debt crisis about whether U.S. courts have overstepped their bounds. At the end of 2011, you’ll recall, U.S. District Judge Thomas Griesa of Manhattan ruled that the pari passu, or equal treatment, clause of Argentina’s bond contracts entitles hedge fund holdouts that refused to participate in debt restructurings to payments alongside the more obliging exchange debtholders. Since then, Argentina and its allies, including the U.S. Justice Department, have argued that Griesa’s interpretation of the pari passu clause — which was subsequently affirmed by the 2nd U.S. Court of Appeals and left intact by the U.S. Supreme Court last month — gives too much power to creditors and undermines sovereigns.
The 2nd Circuit U.S. Court of Appeals really pummeled the pharmaceutical manufacturing company Gnosis in an opinion Tuesday. Judges Rosemary Pooler, Reena Raggi and Richard Wesley affirmed that Gnosis must pay Merck more than $2.5 million in damages and attorneys’ fees for violating the Lanham Act with deceptive marketing about its folic acid product Extrafolate.
David Boies of Boies, Schiller & Flexner — the superstar litigator best known as the defender of same-sex marriage, Al Gore, securities class actions and Napster — is ready for a different sort of a challenge: He wants to be a products liability class action lawyer.
Asking a federal appeals court to step into the fray of an ongoing case to reverse a decision by a trial judge is extraordinary. Petitions for a writ of mandamus, as such requests are known, assert that trial judges have committed such egregious errors that their appellate overseers must undo the damage immediately, before the case gets to a final judgment. Mandamus petitions are a desperation move, a last resort when you’ve got nothing to lose from alienating a trial judge who’s already ruled against you.
We’re near the end. With the news Wednesday that Bank of America will pay AIG $650 million to settle their long-running and many-tentacled litigation over mortgage backed securities –along with a report in The Wall Street Journal that the credit rating agency Standard & Poor’s is contemplating a $1 billion settlement with the Justice Department for its MBS rating failures — it’s time to declare the twilight of financial crisis litigation.
Something strange happened Friday in the infamous case of Cindy Lee Garcia v. Google at the 9th U.S. Circuit Court of Appeals. Chief Judge Alex Kozinski, who wrote the opinion in February that enjoined Google from linking to the anti-Islam film “Innocence of Muslims,” filed an amended opinion, even as the entire 9th Circuit considers Google’s petition for en banc review of the controversial February ruling.