Alison Frankel

In SCOTUS petition, Apple claims 2nd Circuit used wrong antitrust standard

October 29, 2015

(Reuters) – The e-books antitrust scheme alleged by the Justice Department against Apple and five major book publishers was what’s known in antitrust lingo as a hub-and-spoke conspiracy, in which a central player supposedly enables industry competitors to fix their prices. Now Apple is asking the U.S. Supreme Court to clarify what standard of review should apply to the conduct of that central player: Is its alleged participation a per se violation of antitrust law, as price-fixing amongst competitors is deemed to be? Or should courts be required to evaluate the enabler’s actions under the more forgiving “rule of reason” standard, which takes into account the potentially pre-consumer consequences of restraints on trade?

In defense of trial lawyers advertising for clients

October 27, 2015

The U.S. Chamber’s Institute for Legal Reform came out with a new study Tuesday, highlighting what its president, Lisa Rickard, called “some of the most sophisticated and relentless marketing campaigns in our society” – television and internet advertising by plaintiffs lawyers on the prowl for personal injury clients.

Will class action ascertainability come to SCOTUS through Tyson back door?

October 26, 2015

This summer, the 7th U.S. Circuit Court of Appeals explicitly renounced the reasoning of its fellow judges on the 3rd Circuit on a topic that has become all the rage in class action litigation: ascertainability. The 3rd Circuit has said in a series of cases culminating in its 2013 decision in Carrera v. Bayer that trial judges may not certify classes unless plaintiffs’ lawyers offer a “reliable and administratively feasible” way to figure out who is a class member. The 7th Circuit said the 3rd Circuit analysis throws the class action rules out of balance, giving too much weight to assuring the purity of the class.

Goldman had better brace for a bruising in Tibco market cap case

October 21, 2015

(Reuters) – Judges in Delaware Chancery Court have been saying for years that they are not averse to shareholder M&A suits – just to ill-founded challenges to well-conducted transactions. I’ve been writing a lot lately about Chancery’s crackdown on the latter. But the flip side, as Vice-Chancellor Travis Laster said earlier this month when he rejected a disclosure-only settlement involving Aruba Network’s $3 billion sale to HP, is that judges will let promising shareholder cases move forward.

Lawyers for disgraced Facebook fugitive team up in libel suit v. company

October 20, 2015

(Reuters) – Remember Paul Ceglia, the upstate New York wood pellet salesman who once claimed to own half of Facebook by virtue of a contract he signed with Mark Zuckerberg before Zuckerberg left Harvard? Ceglia’s claims against Facebook and its founder backfired in the most spectacular fashion imaginable. Not only was his civil suit dismissed after a succession of law firms came and went from the case but federal prosecutors in Manhattan charged Ceglia with fraud for allegedly forging the critical document. Ceglia went on the lam last March, along with his family and his dog. He is now considered a federal fugitive.

Goldman asks 2nd Circuit to re-examine price-impact rebuttal standard

October 19, 2015

(Reuters) – As the securities class action bar continues to figure out exactly how the U.S. Supreme Court’s 2014 ruling in Halliburton v. Erica P. John Fund is going to impact shareholder fraud cases, Goldman Sachs and its lawyers at Sullivan & Cromwell want a say.

In first of three big class action cases at SCOTUS, worrisome hints for plaintiffs

October 16, 2015

(Reuters) – If you were looking for policy pronouncements from the U.S. Supreme Court about the proper use of the class action device, you were probably disappointed Wednesday after oral arguments in Campbell-Ewald v. Gomez, the first of the three big class action cases the justices will hear this term. In fact, when Gregory Garre of Latham & Watkins – who represents a marketing company that tried to end a Telephone Consumer Protection Act class action by offering the named plaintiff all of the statutory damages he was entitled to – broached a broad attack on class actions for benefiting only plaintiffs’ lawyers, Justice Elena Kagan shut him down.

Can fantasy sports players evade arbitration in case v. FanDuel, DraftKings?

October 9, 2015

(Reuters) – If nothing else, a new class action complaint against the daily fantasy sports sites FanDuel and DraftKings should convince everyone who doesn’t spend a good part of the day studying sports statistics that, contrary to the sites’ ubiquitous television ads, you will not suddenly become a sexually magnetic millionaire by beating your buddies at fantasy sports. According to the complaint, a small band of expert players wins almost all of the money the sites dish out. The other 90 or so percent of bettors – “fish,” in the parlance – are basically providing enough money in entry fees to keep FanDuel and DraftKings profitable despite payouts to the small number of winners.

Thanks to judge with a sense of humor, ‘Muslims Are Coming!’ ads to run in NYC subways

October 8, 2015

(Reuters) – It would be a sad state of affairs, according to U.S. District Judge Colleen McMahon of Manhattan, if every mention of Islam in this country were deemed a political act – even silly advertisements promoting both tolerance and a movie about Islamic comedians called “The Muslims Are Coming!” Happily for Judge McMahon (and really, for anyone who can take a joke), she has the authority to inject some sense into public discourse. On Wednesday, she ruled New York City’s Metropolitan Transportation Authority must permit the movie’s production company, Very Qualified Productions, to run its advertisements at 144 subway stations throughout the city.

Big Business wants to kill CFPB’s anti-arbitration rule. Here’s the game plan.

October 7, 2015

(Reuters) – What the U.S. Supreme Court took away from consumers in its pro-arbitration decisions in AT&T Mobility v. Concepcion and American Express v. Italian Colors, the Consumer Financial Protection Board intends to give back.