Alison Frankel

Is court deference to federal agencies unconstitutional? 10th Circuit judge thinks so.

August 24, 2016

(Reuters) – The first thing I want to tell you about a concurrence by Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals in Gutierrez-Brizuela v. Loretta Lynch is to read it yourself. Rarely will you run across such an elegant legal essay, closely argued and packed with citations yet as accessible as good journalism. If the whole judging thing doesn’t work out for Gorsuch, who is often named as a potential U.S. Supreme Court pick in a Republican administration, he has a real future as a law blogger.

Employer alert: Your arbitration clause is going to be tested at SCOTUS

August 23, 2016

(Reuters) – Something dramatic has happened in the world of employment law this summer, and sooner than later, it’s going to require the attention of the U.S. Supreme Court.

Litigation funder accused of lying to investors fires back at SEC

August 22, 2016

(Reuters) – Roni Dersovitz is a onetime personal injury lawyer who transformed himself into a financier deploying $170 million in capital to litigation funding. Last month, after a year-long investigation, the Securities and Exchange Commission brought an administrative proceeding against Dersovitz, accusing the New Jersey fund manager of deceiving investors about his outsized bet on a default judgment against Iran. On Monday, Dersovitz and his lawyers at Hughes Hubbard & Reed struck back at the agency with a complaint in federal court in Newark. Dersovitz’s suit asks for an injunction against the SEC’s case, arguing (among other things) that new rules the agency adopted last month exacerbate the due process deficiencies of administrative proceedings.

How unique California law rescued Uber class action – then killed $100 million settlement

August 19, 2016

(Reuters) – There is one big reason why Uber drivers have been able to pursue class actions against the company in federal court in California: the state’s one-of-a-kind Private Attorney General Act, which allows employees to sue for labor code violation in the name of the state. As a matter of public policy, according to a 2014 decision from the California Supreme Court, companies cannot compel PAGA claims to be arbitrated. So even though Uber’s contracts with drivers include provisions requiring them to arbitrate disputes with the company individually, U.S. District Judge Edward Chen of San Francisco has held Uber’s class action waivers to be unenforceable because of drivers’ PAGA rights.

‘Professional’ robocall plaintiffs and the ‘zone of interest’ defense

August 18, 2016

(Reuters) – I never cease to be amazed at how creatively people use the law to make money. Consider the example of Melody Stoops, a Pennsylvania resident who bought dozens of prepaid cellphones she kept in a shoebox. Stoops activated the phones to be assigned telephone numbers in Florida area codes hard hit by the economic downturn, then waited for credit card companies and debt collectors to call. When her phones received unsolicited calls – basically, the only calls they received since Stoops never gave her numbers to anyone she wanted to hear from – Stoops would log callers’ information.

Criminal defense bar sides with business lobby in False Claims Act case at SCOTUS

August 17, 2016

(Reuters) – It’s easy to understand why groups such as the U.S. Chamber of Commerce, the American Tort Reform Association and the Coalition for Government Procurement are siding with State Farm in one of the most colorful business cases the U.S. Supreme Court will hear in its upcoming term. But the organized criminal defense bar?

In Lending Club securities case, judge defies convention for picking class counsel

August 16, 2016

(Reuters) – U.S. District Judge William Alsup of San Francisco refuses to bow to orthodoxy when it comes to selecting plaintiffs’ firms to lead securities class actions.

Backpage wants First Amendment cloak in Senate sex traffic probe

August 15, 2016

The First Amendment of the U.S. Constitution has been very good to Backpage.com, the online classified ad publisher that has achieved notoriety for its adults-only section.

2nd Circuit sets new rule on whether federal courts can hear arbitration appeals

August 12, 2016

(Reuters) – Let’s face it: If you’re on the losing side of an arbitration decision, you’re probably not going to get the arbitral ruling overturned, regardless of whether your appeal takes place in state or federal court. Far more often than not, courts defer to arbitrators.

California Supreme Court OKs class action fees based on settlement size

August 11, 2016

A footnote in the 1977 California Supreme Court decision in Serrano v. Priest created four decades of nagging doubt about the proper method for California state judges to calculate fee awards for class action lawyers. Serrano III, as the ruling is known, could be read to require judges to award fees based plaintiffs’ lawyers’ hourly billings – and not on the size of the recovery the lawyers obtained for class members.