Alison Frankel

‘Skin in the game’: justifying restrictive minimum-stake-to-sue bylaws

By Alison Frankel
November 17, 2014

The life insurance settlement company Imperial Holdings, as I told you last week, appears to be the first public corporation to adopt a bylaw requiring investors to provide written consent from at least 3 percent of all shareholders before they can sue the company. But it almost surely won’t be the last. Phillip Goldstein of Bulldog Investors, who is the board chairman at Imperial, sits on the boards of two other public corporations whose shareholders will vote on virtually identical minimum-stake bylaws at annual meetings in December: the Mexico Equity and Income Fund and the Special Opportunities Fund. Goldstein told me he expects shareholders at both funds to accept the provisions, just as he expects Imperial’s shareholders to endorse the board’s adoption of the minimum-stake bylaw at their annual meeting this spring.

Shareholders’ long quest for Wal-Mart bribery documents

By Alison Frankel
November 14, 2014

On Thursday, the plaintiffs’ firm Robbins Geller Rudman & Dowd sued the Securities and Exchange Commission, which Robbins Geller accuses of improperly withholding Wal-Mart documents requested under the Freedom of Information Act. Robbins Geller is lead counsel in a shareholders’ securities fraud class action against Wal-Mart in Arkansas federal court. It wants the SEC to turn over all of the material as received from Wal-Mart in the government’s investigation of the company’s alleged coverup of bribes paid by its Mexican unit. The SEC has refused, citing its ongoing investigation. Robbins Geller’s suit argues that since all of the material it is requesting came from Wal-Mart – and much of it has been revealed in the New York Times articles and congressional disclosures – turning it over won’t interfere with the SEC’s case.

The latest in restrictive corporate bylaws: Small shareholders can’t sue

By Alison Frankel
November 13, 2014

One of the biggest reasons for the seismic shift in shareholder litigation over the past decade from securities fraud class actions to M&A challenges is that it’s easier for plaintiffs’ firms to bring M&A cases and derivative suits. After Congress amended securities laws in 1995 to rein in shareholder suits, federal-court fraud class actions became the near-exclusive province of institutional investors, not individual shareholders with small holdings. But those small-timers could still bring derivative suits and shareholder class actions challenging M&A deals. So a lot of shareholder firms without ties to big pension funds stopped bringing fraud cases and started filing these instead.

Scalia invites criminal defendants to challenge SEC authority

By Alison Frankel
November 12, 2014

Does the Securities and Exchange Commission have the right to define when someone who trades on insider information has committed a crime? Or is the SEC – and, for that matter, every other executive-branch agency – treading on Congress’s toes when it adopts rules interpreting laws with both criminal and regulatory implications?

Banks try, try again at SCOTUS for time limits on regulators’ suits

By Alison Frankel
November 11, 2014

Last August, when the 10th U.S. Circuit Court of Appeals affirmed its previous decision that the National Credit Union Administration is not barred from proceeding with a suit alleging that Nomura duped a failed credit union into buying misrepresented mortgage-backed securities, Nomura wasn’t the only bank crushed by the ruling.

Novel suit to determine if soldiers can sue over wartime terrorism

By Alison Frankel
November 10, 2014

Exterior of the Federal Court building is seen during the Adis Medunjanin sentencing hearing in the Brooklyn borough of New York

Soldiers die in wartime. Charlotte Freeman knew that when her husband, Brian – a West Point graduate, world-class bobsledder and Army Reserve captain – went to Iraq in 2006. Patrick Farr knew it when his son Clay called home on his 21st birthday to say he’d been wounded by a roadside bomb in Iraq but not badly, so he’d be back in action right away. After Brian Freeman and Clay Farr were killed – Farr by another roadside bomb a week after he was first injured in 2006, and Freeman in an attack on the provisional U.S. military headquarters in Kerbala in 2007 – their families grieved terribly. Charlotte Freeman was left to raise two tiny children on her own. Patrick Farr mourned the grandchildren he would never have.

Blame trial lawyers for GM ignition switch disaster – law prof

By Alison Frankel
November 5, 2014

The conventional narrative of the GM ignition switch fiasco – and, for that matter, most coverups of automotive defects – casts victims’ lawyers as heroes, exposing the corporate cynicism that puts profits before safety. Defective ignition switches came to light because plaintiffs’ lawyers prosecuted products liability cases against GM, just as they did in previous automotive scandals that proved the hazards of Ford Pinto fuel lines, Dodge Caravan door latches, and GM pickup truck and Chevy Malibu gas tanks. It’s intuitive to assume that these cases make the marketplace safer. That’s the point, after all, of tort litigation – and especially of the gigantic punitive damages awards that notorious car-defect cases have provoked. Companies are supposed to be so afraid of ending up on the wrong side of a jury verdict that they are more likely to evaluate safety risks.

N.Y. judge to Wylys: You can’t keep SEC away by declaring bankruptcy

By Alison Frankel
November 5, 2014

Onetime Texas billionaire Sam Wyly and the estate of his late brother Charles just can’t seem to outsmart the Securities and Exchange Commission. Their latest attempt to evade the consequences of their allegedly fraudulent offshore trust scheme failed Monday, when U.S. District Judge Shira Scheindlin of Manhattan, in a ruling of first impression in the 2nd U.S. Circuit Court of Appeals, said that the SEC is entitled to freeze the Wylys’ assets, even though both Sam and Charles’ estate declared Chapter 11 bankruptcy in late October, after the SEC began to take steps to collect the nearly $200 million (plus interest) Scheindlin awarded the agency in September.

The problem with judicial elections, Illinois Supreme Court edition

By Alison Frankel
November 3, 2014

Nov 3 (Reuters) – As we close out the election cycle, the nonprofit Brennan Center is reporting a surge in last-minute spending by special interest groups hoping to influence elections for state Supreme Court justices. Last week alone, according to the center, outside groups spent nearly $1 million to air television ads in judicial races in Illinois, Michigan, Montana, North Carolina and Ohio. Overall, contributions from groups not tied directly to judicial candidates have dramatically increased since the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, according to a new study by researchers at Emory University School of Law with support from the American Constitutional Society. In the last federal election cycle, outside groups contributed $24.1 million to judicial elections, more than 40 percent of the total spent on campaigns for judgeships.

Artist royalties case asks en banc 9th Circ.: Can Calif. regulate whole U.S.?

By Alison Frankel
October 31, 2014

On Thursday, the 9th U.S. Circuit Court of Appeals decided that the court needs to convene en banc to decide whether California’s Resale Royalties Act — which grants California fine artists a small percentage of the revenue from resales of their work — runs afoul of the Commerce Clause of the U.S. Constitution. Resale royalties for artists, who otherwise receive no reward from works that have skyrocketed in value since their original sale, is an interesting question in and of itself: Though nearly 80 countries around the world grant artists a piece of the proceeds from such sales, California is the only state in the United States with a resale royalties law. But there’s much more at stake in this appeal than money for artists. The 9th Circuit took the case en banc to resolve a conflict in its previous rulings on California laws that affected out-of-state businesses. The court’s decision in the resale royalties case will shape California’s ability to extend its regulations beyond state lines.