Alison Frankel

Arab Bank’s clever idea fails to avert damages trial in terror case

December 11, 2014

Arab Bank really, really wants the 2nd U.S. Circuit Court of Appeals to hear its arguments that last summer’s jury verdict holding the bank liable for Hamas attacks was hopelessly tainted. But after a ruling Wednesday by U.S. District Judge Brian Cogan of Brooklyn, it’s pretty clear that the bank won’t get to the 2nd Circuit before a Brooklyn jury hears a bellwether damages trial that could expose Arab Bank to a judgment of tens or even hundreds of millions of dollars, if past judgments in Anti-Terrorism Act cases are a reliable guide.

Insider trading prosecutions were hollow at the core – 2nd Circuit

December 11, 2014

(Reuters) – To bring an insider trading case in the 2nd U.S. Circuit Court of Appeals, prosecutors must prove both that the tipster received a personal benefit from leaking confidential information and that those who traded on the information knew of the benefit. That is now established beyond any doubt, after an emphatic 2nd Circuit opinion Wednesday that erases the government’s case against former hedge fund executives Todd Newman and Anthony Chiasson.

When corporations go to SCOTUS, class counsel turn to this man

December 9, 2014

(Reuters) – A Reuters special report Monday pinpointed eight lawyers who made a whopping 20 percent of the oral arguments at the U.S. Supreme Court in the last decade. One of them, David Frederick of Kellogg Huber Hansen Todd Evans & Figel, frequently appears on behalf of plaintiffs in business cases, most recently in a 2013 securities case, Amgen v. Connecticut Retirement Plans. (Frederick would have argued for investors in Public Employees’ Retirement System of Mississippi v. IndyMac but the justices dismissed the case.) Paul Clement of Bancroft argued for a class of small businesses suing American Express in the 2013 case Amex v. Italian Colors.

In notorious KBR whistleblower case, client privilege is again at issue

December 8, 2014

(Reuters) – Ten years ago, the government contractor KBR began an internal investigation of allegations that it overbilled the U.S. government for shoddy work by Iraqi subcontractors who paid kickbacks to KBR employees. The U.S. Defense Department requires its contractors to investigate kickback allegations, and KBR has in the past offered credits to the U.S. government based on the findings of internal investigators. In this case, however, after two years of interviewing witnesses and reviewing documents, KBR did not inform the Defense Department that there were reasonable grounds to believe kickbacks had been paid. Nor did it tender any credit to the government for overcharges.

Bad news for data breach defendants: Banks’ case vs. Target to proceed

December 5, 2014

In a decision that could have important consequences for other corporations facing data breach cases, U.S. District Judge Paul Magnuson of St. Paul, Minnesota, ruled this week that financial institutions claiming to have spent billions of dollars replacing their customers’ compromised credit and debit cards may proceed with a negligence class action against Target.

Those non-random appellate panels? Study finds they’re (almost) everywhere

December 4, 2014

The random assignment of federal circuit court judges to the three-judge panels that hear appellate arguments is a bedrock assumption about the U.S. judicial system. That’s why it’s notable when panel assignments appear to be the result of something other than sheer fate. I told you yesterday, for example, about a law review article by a University of Georgia law professor who hypothesized that two judges at the 7th U.S. Circuit Court of Appeals have taken advantage of an idiosyncratic policy that permits 7th Circuit judges serving on motions panels to claim authority over the merits of appeals they’ve allowed to proceed. When Edward Whelan of the Ethics and Public Policy Center, who writes the Bench Memos blog at the National Review Online, recently raised questions about assignment procedures at both the 7th and 9th Circuits, he drew responses from judges at both circuits.

At 7th Circuit, unseen judicial mechanics drive decisions: new paper

December 3, 2014

Are judges in the 7th U.S. Circuit Court of Appeals quietly taking advantage of their unusual assignment system to effect particular results?

Reverse the outrageous gag order in Don Blankenship criminal case

December 2, 2014

Donald Blankenship, the former chairman and CEO of Massey Energy, has spent the past five years agitating for public attention in order to clear his name.

Why state AGs could be GM’s biggest litigation problem

December 1, 2014

General Motors will have to face the people of the state of California in state court in Orange County, thanks to a decision last week by U.S. District Judge Jesse Furman of Manhattan, who is presiding over consolidated federal-court claims involving GM’s faulty ignition switches. Furman ruled that a consumer protection and trade practices suit by the Orange County district attorney is fundamentally a law enforcement action that can be litigated despite federal bankruptcy protection for GM’s predecessor. And because California’s suit otherwise involves only state-law claims, Furman said, the case belongs in state court.

Big pension funds mobilize against Delaware fee-shifting clauses

November 26, 2014

Last June, when Delaware’s General Assembly was contemplating legislation to prohibit fee-shifting provisions that would require shareholders to pay defense costs for failed suits, the U.S. Chamber of Commerce’s Institute for Legal Reform moved fast. The Chamber sent a letter to the bill’s sponsor, Bryan Townsend, arguing that the proposed law be deferred. It also wrote to all of the members of the Assembly to urge them to oppose the legislation. Fee-shifting, according to the Chamber, was a great way to curtail meritless shareholder claims in “deal tax” suits. Why, the Chamber asked, would lawmakers “deprive” shareholders of the “opportunity” to rein in frivolous litigation?