Alison Frankel

Election savant Nate Silver: Why punditocracy gets politics wrong

By Alison Frankel
June 27, 2013

If Nate Silver, the data-driven New York Times FiveThirtyEight blogger who nailed state-by-state results in the 2012 presidential election, had been a better baseball player or a more satisfied KPMG numbers cruncher, our current political discourse would be a lot less analytically savvy than it is today.

Wake up, shareholders! Your right to sue corporations may be in danger

By Alison Frankel
June 25, 2013

Do you believe that securities class actions and shareholder derivative suits have any salutary effect on corporate governance – that directors and officers are less likely to misbehave when they’re liable to shareholders (their nominal bosses) in court? If so, you ought to be very worried about a pair of developments in the last week that offer a theoretical framework to end shareholder class actions. If, on the other hand, you’re of the view that shareholder litigation is merely a transfer of wealth from corporations to plaintiffs’ lawyers, with little actual return to investors, you might want to start thinking about how to use the new rulings to stop that from happening.

Journalists and the Espionage Act: Prosecution risk is remote but real

By Alison Frankel
June 24, 2013

Meet the Press host David Gregory brought down the wrath of fellow journalists on Sunday when he asked a provocative question of Glenn Greenwald, the Guardian reporter who broke revelations from Booz Allen contractor Edward Snowden about the U.S. government’s monitoring of citizens’ phone and Internet data. After Gregory and Greenwald discussed the Justice Department’s new Espionage Act charges against Snowden, Gregory asked, “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?”

The inherent conflict for lawyers who oppose Supreme Court review

By Alison Frankel
June 21, 2013

As usual, the U.S. Supreme Court has saved the big stuff for the last week of its term. Among the 11 cases the justices have yet to decide are the four that garnered the most public attention this year: Fisher v. University of Texas, which addresses affirmative action; the voting rights case Shelby County v. Holder; and the two gay marriage cases, Hollingsworth v. Perry, which stems from California’s ballot-proposition ban on gay marriage, and U.S. v. Windsor, which challenges the federal Defense of Marriage Act. You can reliably expect frenzied coverage at the court until rulings come down in all four of these hot-button cases.

What hope remains for consumers, employees after SCOTUS Amex ruling?

By Alison Frankel
June 20, 2013

The U.S. Supreme Court’s ruling Thursday in American Express v. Italian Colors has narrowed to an irrelevant pinhole the so-called “effective vindication exception” to mandatory arbitration. Despite dicta in previous Supreme Court cases that suggested arbitration clauses are not enforceable when it is prohibitively expensive for claimants to enforce their rights through the arbitration process, the five justices in the Amex majority held that plaintiffs who sign arbitration agreements don’t have the right to pursue their claims on anything but an individual basis, even if the cost of that pursuit dwarfs their potential recovery.

What hope remains for consumers, employees after SCOTUS Amex ruling?

By Alison Frankel
June 20, 2013

The U.S. Supreme Court’s ruling Thursday in American Express v. Italian Colors has narrowed to an irrelevant pinhole the so-called “effective vindication exception” to mandatory arbitration. Despite dicta in previous Supreme Court cases that suggested arbitration clauses are not enforceable when it is prohibitively expensive for claimants to enforce their rights through the arbitration process, the five justices in the Amex majority held that plaintiffs who sign arbitration agreements don’t have the right to pursue their claims on anything but an individual basis, even if the cost of that pursuit dwarfs their potential recovery.

Should defendants fear new SEC policy on admissions in settlements?

By Alison Frankel
June 19, 2013

Mary Jo White proved herself to be quite a shrewd strategist on Tuesday, when she made a surprise announcement at The Wall Street Journal’s annual CFO Network Event. The chair of the Securities and Exchange Commission said that the agency would no longer maintain a blanket policy permitting defendants to settle SEC cases without admitting to wrongdoing. “We are going to in certain cases be seeking admissions going forward,” White said, according to my Reuters colleague Sarah Lynch. “Public accountability in particular kinds of cases can be quite important and if we don’t get (admissions), then we litigate them.” White said that in cases involving “widespread harm to investors,” “egregious intentional misconduct” or obstruction of the SEC’s investigation, the agency may insist that defendants accept liability as a condition of settlement.

Supreme Court to resolve circuit split on timing of appeals

By Alison Frankel
June 18, 2013

Once upon a time, ordinary lawyers appeared at the U.S. Supreme Court. If, by some chance, their client’s case defied long odds and made it onto the justices’ docket, lawyers who’d been on the litigation from its start would make a once-in-a-lifetime argument to the highest court in the land. Those days are mostly gone. As my brilliant Reuters colleague Joan Biskupic discussed Tuesday in a story about the competition to represent a pro se plaintiff whose petition for certiorari was granted last year, arguments at the Supreme Court have come to be the near-exclusive province of lawyers who specialize in this high-prestige, high-profile practice.

SCOTUS pay-for-delay ruling: New scrutiny for nonpharma patent deals?

By Alison Frankel
June 17, 2013

In the U.S. Supreme Court’s ruling Monday on pay-for-delay settlements in the pharmaceutical industry – in which a brand-name drugmaker pays generic rivals to drop challenges to its patent, thus assuring its monopoly – five justices agreed with the Federal Trade Commission that the key question isn’t whether pay-for-delay deals exceed the scope of the brand-maker’s patent. Courts cannot simply rubber-stamp such settlements as presumptively legal, the majority said in FTC v. Actavis. But nor can they assume that pay-for-delay settlements are illegal by their very nature. Instead, according to the majority, trial courts must conduct a “rule of reason” analysis to determine whether reverse-payment settlements violate antitrust law.

SCOTUS in Myriad: Federal Circuit doesn’t know what’s patent-eligible

By Alison Frankel
June 13, 2013

Justice Clarence Thomas of the U.S. Supreme Court doesn’t come out and say so in his straightforward, rhetoric-free, 19-page opinion for a unanimous court in Association for Molecular Pathology v. Myriad Genetics, but the takeaway from the ruling is not only that human genes are not patentable in and of themselves but that the Federal Circuit Court of Appeals isn’t very good at interpreting patent-eligibility under Section 101 of the Patent Act. As the Supreme Court decision notes, the Federal Circuit panel that ruled Myriad has the right to composition patents on genes associated with breast cancer disagreed on the rationale. One judge said that isolated genes are chemically distinct from the molecules found in nature. Another cited longstanding Patent and Trademark Office policy on gene patentability. The third disagreed with both explanations. So too did the entire Supreme Court, which said the dispositive question is whether the purported invention is created or found in nature. Genes are found in nature, the court said, and thus not patent-eligible.