Alison Frankel

SCOTUS foreign antitrust cert denials show different tests for civil, criminal cases

June 15, 2015

(Reuters) – The U.S. Supreme Court on Monday refused to grant review of two antitrust cases based on the same basic facts about an illegal price-fixing cartel among foreign manufacturers of liquid-crystal display screens. In one case, AU Optronics and two employees had asked the justices to reverse a 2014 ruling by the 9th U.S. Circuit Court of Appeals that affirmed their conviction for violating U.S. antitrust laws. In the other, Motorola Mobility appealed the 7th Circuit’s holding that it cannot claim private damages from cartel members on behalf of foreign Motorola subsidiaries that spent about $5 billion on overpriced LCD screens installed in devices sold in the United States.

New filings reveal outline of improper disclosures in Amex, MasterCard cases

June 12, 2015

(Reuters) – Details emerged this week in one of the most inexplicable cases of improper lawyer conduct I’ve ever seen. We now know that Gary Friedman of the Friedman Law Group, an accomplished antitrust lawyer who co-led a long-running case for merchants suing American Express over supposedly inflated credit card fees, supplied proprietary information about retailers in his case, as well as a confidential expert witness report, to MasterCard lawyer Keila Ravelo, a onetime partner at Willkie Farr & Gallagher who is facing federal criminal charges for allegedly defrauding the firm and her former client MasterCard.

Can MBS investors rebound after N.Y. high court shuts down contract suits?

June 11, 2015

(Reuters) – To the relief of every bank that issued mortgage-backed securities in the heyday of subprime lending, New York’s highest court, the Court of Appeals, ruled Thursday that the six-year statute of limitations for investors’ breach-of-contract claims begins to run on the date the MBS contract was executed – and not, as investors had argued, when MBS trustees fail to repurchase underlying mortgages that don’t meet issuers’ representations and warranties.

Lessons from Kirkland’s ‘unfortunate and unethical’ Mylan mess

June 10, 2015

(Reuters) – The Israeli pharmaceutical company Teva was quick to cut its losses yesterday after U.S. Magistrate Judge Lisa Lenihan of Pittsburgh recommended a preliminary injunction barring Kirkland & Ellis from continuing to advise Teva in its hostile bid for Mylan, an occasional Kirkland client since 2013. Kirkland announced that it will file an objection to Judge Lenihan’s recommendation, which will be reviewed by U.S. Chief District Judge Joy Conti, but in the meantime, Teva hired Sullivan & Cromwell to replace the firm in the Mylan takeover battle. A source told Reuters that Kirkland actually agreed to step aside because it did not want its longtime client Teva to face distractions in the hostile offer for Netherlands-based Mylan.

Class actions face crucible in next Supreme Court term

June 9, 2015

(Reuters) – By this time next year, class action lawyers could be looking back with nostalgia and regret at the good old days when they only had to worry about Wal-Mart v. Dukes and Comcast v. Behrend.

2nd Circuit punts on rule for defense counsel to report juror suspicions

June 8, 2015

The 2nd U.S Circuit Court of Appeals undid an injustice Monday when it ordered a new trial for David Parse, a one-time Deutsche Bank broker who was convicted in 2011 for his alleged participation in a tax shelter scheme supposedly masterminded by the now-defunct law firm Jenkens & Gilchrist. In an opinion by Judge Amalya Kearse, the appeals court said Parse’s conviction was tainted by a biased juror who admitted after trial that she had told a series of breathtaking lies during voir dire. Even though Parse’s former lawyers at Brune & Richard had turned up Internet evidence before and during trial that raised suspicions about the juror, the 2nd Circuit said, Parse had not waived his right to an impartial jury.

FCC hangs up on business lobby in proposed reform of spam call law

May 29, 2015

Margot Freeman Saunders of the National Consumer Law Center was braced for bad news from the Federal Communications Commission on reform of the Telephone Consumer Protection Act (TCPA). Since last year, Saunders has been trying to file responses to an onslaught of petitions at the FCC by business groups complaining about supposedly baseless TCPA class actions, but consumer advocates couldn’t match industry’s lobbying campaign. Saunders said she met twice with FCC staffers to push for more stringent prohibitions on spam phone calls, faxes and texts. Business groups, by contrast, made dozens of trips to the agency.

SEC commissioners order affidavits on hiring of in-house judges

May 28, 2015

(Reuters) – The commissioners of the Securities and Exchange Commission seem to think there may just be something to the latest defense arguments that its in-house administrative law judges are unconstitutional.

Whistleblowers dodge disaster in Supreme Court’s KBR decision

May 27, 2015

The military contractor Kellogg Brown & Root Services won at the U.S. Supreme Court on Tuesday, when the justices ruled unanimously in KBR v. U.S. ex rel Carter that the Wartime Suspension of Limitations Act extends the time limit only for criminal fraud cases, not for civil suits under the False Claims Act. KBR lawyer John Elwood of Vinson & Elkins told my Reuters colleague Lawrence Hurley that the decision should effectively kill a 2011 whistleblower suit accusing the company of billing the U.S. government for months of water purification services in Iraq it didn’t actually provide.

Forex class action deals may hint banks braced to lose Libor appeal

May 26, 2015

Citigroup revealed last week that it has agreed to pay $394 million to settle private antitrust litigation over manipulation of a benchmark price average for trades in the foreign exchange market, bringing the total recovery for plaintiffs in the consolidated forex litigation to nearly $810 million. That number is expected to rise. Citi is the fourth bank to reach a deal in the private case – JPMorgan Chase, UBS and Bank of America have already settled – and at least two other of the eight remaining forex defendants are also reportedly in talks with plaintiffs lawyers.