A spate of U.S. pension funds, including Bank of America’s private pension plan and funds for public workers in Maryland, Louisiana and Texas, filed suits Friday accusing BP of defrauding investors in its statements about the Deepwater Horizon oil spill in April 2010. Piling on just ahead of the statute of limitations, several foreign institutions, such as Norges Bank and Deka Investment, also brought cases Friday against BP. In all, the oil company is now facing individual securities suits by at least 20 institutional investors, all of which claim that their investment managers relied on the company’s supposed misrepresentations when they decided to buy BP shares.
I plow through a lot of appellate opinions. Few of them make me want to stand up and read aloud in the Reuters newsroom. But a couple of sentences, from a ruling Wednesday by the 4th U.S. Circuit Court of Appeals, just about pushed me out of my chair. “A corporation very well may desire that the allegations lodged against it in the course of litigation be kept from public view to protect its corporate image, but the First Amendment right of access does not yield to such an interest,” the three-judge 4th Circuit panel wrote. “Whether in the context of products liability claims, securities litigation, employment matters or consumer fraud cases, the public and press enjoy a presumptive right of access to civil proceedings and documents filed therein, notwithstanding the negative publicity those documents may shower upon a company.” What an unwavering endorsement of open courts!
Is there anyone who doesn’t sympathize with the actor Cindy Lee Garcia, who was baldly deceived into appearing in the abhorrent anti-Islam film “Innocence of Muslims”?
For all of the outrage kicked up by Michael Lewis’s depiction of fundamentally rigged securities exchanges in his book “Flash Boys,” there’s a giant obstacle standing in the way of punishing high-frequency traders or the exchanges that facilitate them: the blessing of federal regulators. As Dealbook’s Peter Henning wrote in his White Collar Crime Watch column on why high-frequency trading is unlikely to result in criminal charges, securities exchanges openly sell access to high-speed data feeds and to physical proximity that increases trading speed by milliseconds. Exchanges are, in the words of Andrew Ross Sorkin, “the real black hats” of high-frequency trading, since they unabashedly profit from differentiating access to trading information.
Way back in 2000, the Electric Power Research Institute, a non-profit funded by utility companies, asked the Justice Department’s Antitrust Division for guidance on a proposal to help its members pool information to ward off cyber attacks. EPRI told Justice that companies across the energy sector wanted to exchange information about how best to conduct vulnerability assessments, install anti-hacking protections and formulate restoration plans in case of breaches. EPRI asked for the department’s assurance that this kind of industry-wide collaboration would not violate antitrust laws.
In 1999, a couple of partners at the firm now known as Wilmer Cutler Pickering Hale and Dorr had a fabulous idea. Businesses were just beginning to recognize the potential advantages of imposing mandatory arbitration provisions and class action waivers on their customers. In early 1998, First USA was the first credit card bank issuer to adopt a mandatory arbitration clause, followed by American Express at the end of the year. Wilmer, which had a roster of credit card clients, came up with a marketing strategy to position itself as an expert on the clauses. In May 1999, Wilmer lawyers invited big credit card issuers to attend a conference on arbitration provisions at its Washington offices “to show these folks that this was something on which we were at the leading edge,” one of the partners later testified.
When an anonymous speaker’s First Amendment rights conflict with a criminal defendant’s right to due process under the Fifth Amendment, which constitutional protection prevails?
Elan Pharmaceuticals believes it was victimized twice over by SAC Capital, the notorious hedge fund now called Point72. The first time was when SAC obtained insider information about unsuccessful trials of the Alzheimer’s drug bapineuzumab and dumped $700 million in shares of the Irish drug company and its drug development partner Wyeth. But to add insult to that injury, Elan had to spend a small fortune, about $1.6 million, in legal fees and costs stemming from the government’s investigation of SAC’s insider trading. That is money SAC should have to pay, according to Elan. With the hedge fund due to be sentenced Thursday by U.S. District Judge Laura Taylor Swain of Manhattan, the pharma company’s lawyers at Reed Smith have submitted a letter asking Swain to recognize Elan as a victim of SAC’s crimes and order the hedge fund to pay it $1.6 million in restitution.
For a scant two years, from 1997 to 1999, Hamdi Ulukaya, then a young Turkish immigrant with dreams of a business in Turkish-inspired dairy products, and Ayse Giray, a physician in New York with Turkish roots, were married. Giray believed in and supported Ulukaya’s vision, so much so that even after they were divorced, her family loaned him almost $200,000 in 2002 to keep his inchoate cheese-making business afloat. Ulukaya soon thereafter expanded from feta cheese into Greek yogurt, establishing a company called Chobani with a factory in upstate New York. Last month, Reuters revealed that Chobani is in negotiations to sell a minority stake for $2.5 billion. But Giray and Ulukaya are not jointly celebrating the company’s runaway success. Quite the contrary.
Who would have guessed that a consumer class action accusing ConAgra of deceiving consumers in the labeling of its Hebrew National hot dogs and salami would implicate two meaty constitutional issues? (Sorry, couldn’t resist.)