Alison Frankel

2nd Circuit’s Facebook IPO opinion is boon for corporate defendants

July 24, 2015

Facebook and its defense lawyers at Kirkland & Ellis and Willkie Farr & Gallagher pulled an interesting trick to deal with a proliferation of shareholder derivative suits that followed the company’s $16 billion IPO in 2012. And on Friday, the 2nd U.S. Circuit Court of Appeals gave their tactic its blessing. Corporate defendants take note: You may be able to get a federal judge to toss state-law breach-of-duty suits without ever establishing federal court jurisdiction.

Judge rejects Turtles’ bid to block $210 million Sirius XM deal

July 23, 2015

Former Turtles bandmates Flo & Eddie may live forever on oldies stations, but their company’s lawyers at Gradstein & Marzano have lost a chance to set precedent on the prerogatives of class counsel. On Wednesday, U.S. District Judge Philip Gutierrez of Los Angeles denied Gradstein & Marzano’s motion to enjoin the satellite and Internet radio company Sirius XM from moving ahead with a $210 million settlement with five record labels that say they own or control the rights to 80 percent of the pre-1972 songs played on Sirius XM stations.

Omnicare’s early impact: mixed and muted

July 22, 2015

On Tuesday, the 2nd U.S. Circuit Court of Appeals sent a securities class action against Deutsche Bank and several underwriters back to U.S. District Judge Deborah Batts of Manhattan for reconsideration in light of the U.S. Supreme Court’s March 2015 decision in Omnicare v. Laborers District Council. Judge Batts had tossed the case in 2013, ruling that under 2nd Circuit precedent in Fait v. Regions Financial, Deutsche Bank’s estimation of its exposure to mortgage-backed securities in offering materials for a stock issue was an opinion that could not give rise to securities fraud liability. After Omnicare, in which the Supreme Court set new rules for when opinions are actionable, the Supreme Court remanded the Deutsche Bank case to the 2nd Circuit, which, in turn, passed it to Judge Batts.

The 7th Circuit just made it a lot easier to sue over data breaches

July 21, 2015

One of the truisms of big litigation is that plaintiffs lawyers are adaptive folks. That’s certainly been borne out over the last couple of years in class actions against corporations whose customer or employee information has been compromised in hacker attacks. Federal judges in district courts dismissed those cases in waves after the U.S. Supreme Court clarified in its 2013 decision in Clapper v. Amnesty International that to meet constitutional requirements to sue in federal court, plaintiffs have to allege they are at imminent risk of suffering a concrete injury.

SEC stands by ad hoc rulemaking in State Street appeals brief

July 20, 2015

Securities defense lawyers were surprised, and not in a good way, by a ruling last December in which the U.S. Securities and Exchange Commission, in a 3-to-2 decision, found two former State Street executives liable for deceiving investors, even though the two had been cleared by an SEC in-house judge. That fact alone was disquieting for defendants, but even more so was that the commissioners used the State Street case as a vehicle to reinterpret antifraud provisions of the securities laws – and then to hold one of the executives, John Flannery, liable under the reinterpretation.

SCOTUS history backs 2nd Circuit insider trading opinion in Newman: law prof

July 17, 2015

The first day of August is the Justice Department’s deadline for asking the U.S. Supreme Court to review the most consequential ruling on insider trading in recent memory, the 2nd U.S. Circuit Court of Appeal’s decision in U.S. v. Newman. You might think that seeking certiorari would be an easy decision for the government, since both federal prosecutors and the Securities and Exchange Commission have said the 2nd Circuit’s Newman ruling will cost them cases because it restricts the definition of what constitutes a “personal benefit” for corporate insiders who pass along confidential information.

No one wins when plaintiffs lawyers fight over fees

July 16, 2015

The multidistrict litigation accusing Bayer of tainting the U.S. long-grain rice crop with its genetically modified product should be a shining example of how consolidated litigation can deliver justice to thousands of injured people. In 2011, after losing several bellwether trials, Bayer agreed to pay as much as $750 million to about 11,000 rice farmers in Texas, Louisiana, Missouri, Arkansas and Mississippi. In 2012, the judge overseeing the consolidated federal-court litigation against Bayer, U.S District Judge Catherine Perry of St. Louis, said the outcome entitled the lawyers who led the case to as much as $72 million from a common benefit fund. That award was more, as a percentage, than lead lawyers usually receive for work that supposedly benefits all of the plaintiffs in consolidated litigation, but the judge said the award was justified by the time lead counsel sank into the case and the excellent results they obtained.

Media, tech companies ask SCOTUS to restrict class actions in Spokeo

July 15, 2015

It would have been shocking if big business hadn’t turned out in force to back the search engine Spokeo at the U.S. Supreme Court, in a case with potentially huge consequences for class action defendants. And since the business lobby isn’t one to ignore an opportunity like Spokeo, the questions last week at the filing deadline were how many amicus briefs would come in and whether new industries would add to the chorus urging the justices to restrict class actions claiming statutory damages for violations of federal laws. The answers: More than three dozen companies, trade groups and state attorneys general spoke up for Spokeo in 17 amicus briefs, including filings from media, banking and retail businesses that hadn’t previously been involved in the case. It looks like corporate defendants do indeed regard Spokeo as a potential blockbuster.

Law prof objects to Dela. M&A settlement, could be first of many

July 14, 2015

(Reuters) – If Fordham law professor Sean Griffith wanted his newly-filed objection to the settlement of shareholder litigation over Thoma Bravo’s $3.6 billion acquisition of Riverbed Technologies to provoke debate on the dubious benefit to shareholders from disclosure-only settlements of M&A class actions, his timing could not have been better.

The beginning of the end of ‘deal tax’ litigation boom?

July 10, 2015

(Reuters) – If it had just been Vice Chancellor Travis Laster of Delaware Chancery Court sounding off about the blight of so-called deal tax M&A suits, the Delaware bar might have been able to chalk up this week’s developments to the judge’s occasional tendency to rile the complacent. But it isn’t just Laster. Something is afoot in Delaware Chancery Court.