Alison Frankel

Does 2nd Circuit give foreign defendants an escape hatch via Vitamin C decision?

September 21, 2016

In a way, the 2nd U.S. Circuit Court of Appeals decision Tuesday to toss a $147.8 million price-fixing judgment against two Chinese manufacturers of Vitamin C was just a reaffirmation of a principle the U.S. Supreme Court established back in 1942. But has the appeals court given foreign defendants – especially those from countries where the rule of law is suspect – a way to get out of litigation in the U.S.?

Facebook to ‘millions of Internet users': Relax, you’re not engaged in computer fraud

September 20, 2016

(Reuters) – The Electronic Frontier Foundation and the American Civil Liberties Union envisioned disaster in an Aug. 19 amicus brief asking the 9th U.S. Circuit Court of Appeals to rehear Facebook’s Computer Fraud and Abuse case against the social networking company Power Ventures. Unless the court acts en banc to clarify the boundaries of the computer fraud statute, EFF and the ACLU warned, a three-judge panel’s ruling for Facebook could “make potential criminals out of millions of ordinary Americans,” for ordinary, innocuous actions like accessing a partner’s account to pay bills or printing out an airline boarding pass for a family member.

Backpage can’t claim privilege on documents subpoenaed by Senate – judge

September 19, 2016

(Reuters) – The Senate subcommittee investigating Internet sex trafficking will get to see how lawyers for the online classified ad site advised the company on its ad screening policies, under a ruling Friday by U.S. District Judge Rosemary Collyer of Washington, D.C., who is overseeing Backpage’s challenge to a Senate subpoena. Judge Collyer held that because Backpage’s lawyers did not assert attorney-client or work product privileges when they contested the subcommittee’s demand for documents and did not prepare a log of protected documents, Backpage waived the right to claim privilege.

Trial judges have discretion to unseal grand jury records – 7th Circuit

September 16, 2016

(Reuters) – Only once in U.S. history has the federal government tried to prosecute a mainstream news organization under the Espionage Act for reporting on a classified document, according to the Reporters Committee for Freedom of the Press.

IP lawyer learns the hard way: Copying Newegg appellate brief is not fair use

September 15, 2016

(Reuters) – Just a few years ago, the New Jersey intellectual property lawyer Ezra Sutton was on the same side as the online retailer Newegg. Newegg and Sutton’s client, the electronics company Sakar International, were among dozens of defendants sued in Texas federal district court by Adjustacam, a patent plaintiff often described as a “troll.” Newegg and Sakar refused to settle with Adjustacam, which ended up dropping its case. Sutton worked with Newegg lawyers on separate motions for attorneys’ fees from Adjustacam. When the trial judge denied the fee requests, Newegg and Sutton’s client both decided to appeal the fee ruling to the Federal U.S. Circuit Court of Appeals.

Napoli Shkolnik mesh cases originated at controversial mass torts marketing firm – ex firm employee

September 14, 2016

The prominent personal injury firm Napoli Shkolnik has just surfaced in the Chapter 11 bankruptcy of Excelium Management, a corporate sister of the controversial mass torts marketing company Law Firm Headquarters.

Wage-and-hour plaintiffs likely to back NLRB’s bid for SCOTUS review of class waivers

September 12, 2016

(Reuters) – On Friday, as expected, the National Labor Relations Board and the Justice Department filed a petition for certiorari in NLRB v. Murphy Oil, asking the U.S. Supreme Court to decide whether employment contracts requiring workers to arbitrate disputes individually are invalid under federal labor laws. The government’s petition for Supreme Court review of a decision from the 5th U.S. Circuit Court of Appeals follows two other requests last week for Supreme Court to hear the same issue. The previous cert petitions were both filed by employers – Epic Systems and Ernst & Young – on the losing side of decisions by federal appellate circuits that found such provisions a violation of the National Labor Relations Act.

E&Y asks for SCOTUS review of employee class waivers, days after Epic petition

September 8, 2016

(Reuters) – How big is the issue of whether employers can bar workers from acting as a group to enforce their rights? So big that on Thursday, the accounting firm Ernst & Young became the second employer in the past seven days to ask the U.S. Supreme Court to resolve a deep split between the federal appellate courts on the legality of mandatory arbitration clauses that require employees to arbitrate disputes individually.

‘Adult’ ad site tells SCOTUS it is First Amendment champion

September 7, 2016

(Reuters) – The online classified ad site, under subpoena by a U.S. Senate subcommittee investigating sex trafficking, on Tuesday told the U.S. Supreme Court that it is, in fact, a victim – not of ad purchasers who may be using the site for illegal ends but of a federal government that does not respect the First Amendment rights of online publishers.’s lawyers at Davis Wright Tremaine and Akin Gump Strauss Hauer & Feld, asked the Supreme Court to stay enforcement of the Senate subpoena for documents detailing how the site screens for illegal ads, arguing that, like Google and Facebook, it has been targeted by an abusive government wielding subpoena power as a bludgeon.

New cert petition asks SCOTUS to review employer bans on class actions

September 6, 2016

(Reuters) – We knew this was coming, just not quite so soon.

Epic Systems, the Wisconsin medical software company, had until Sept. 23 to file a petition asking the U.S. Supreme Court to decide whether employers can require workers to arbitrate employment disputes individually instead of banding together in group actions. Epic’s lawyers at Hogan Lovells must have thought the issue is too hot to wait. They filed Epic’s certiorari petition on Friday, arguing that the Supreme Court must step in to resolve a split that pits the 7th and 9th U.S. Circuit Courts of Appeals against the 2nd, 5th and 8th Circuits, as well as state supreme courts in California and Nevada.