Alison Frankel

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

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

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

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

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

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.?

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.

Why Whirlpool’s win in moldy washer trial vindicates consumer class actions

October 30, 2014

On Monday, just days before jurors in federal court in Cleveland concluded that Whirlpool was not negligent in the design of front-loading washing machines with a supposed propensity to develop a moldy smell, Whirlpool’s lawyers asked U.S. District Judge Christopher Boyko to overturn his decision to permit Ohio buyers of the machines to litigate as a class. Whirlpool argued that the three-week trial to determine whether 20 washing machine models were poorly designed hadn’t established a common question to bind the purchasers’ class together. Judge Boyko quickly denied the motion, ruling Tuesday that the design of the machines is a common issue for all purchasers in the class.

Congress, whistleblower lawyers urge SEC to police ‘de facto gag clauses’

October 29, 2014

You certainly can’t accuse Sean McKessy, who heads the whistleblower office at the Securities and Exchange Commission, of ignoring employers’ attempts to silence would-be whistleblowers. McKessy has repeatedly warned corporations – most recently in an interview with Stephanie Russell-Kraft at Law360 – that if they try to stop employees from coming to the SEC with claims of wrongdoing or if they retaliate against those who have spoken out, the agency can bring an enforcement action against them for violating the Dodd-Frank Financial Reform Act.

N.Y. top court is good friend to global banks, foreign account holders

October 27, 2014

New York’s highest court did a big favor for international banks last week in its decision in Motorola v. Standard Chartered. But they’re not the only beneficiaries of the ruling, at least as the banks tell the story. According to amicus briefs in the case from the Securities Industry and Financial Markets Association (SIFMA) and the city bar’s banking law committee (among others), New York’s position as a center of international finance would have been endangered had the Court of Appeals gone against Standard Chartered.

New emails, depositions detail Allergan anti-takeover campaign

October 24, 2014

Earlier this week, I told you about new filings by the Canadian pharmaceutical company Valeant and the hedge fund Pershing Capital that suggested their target Allergan had disregarded advice from its financial adviser Goldman Sachs. The Pershing and Valeant briefs were heavily redacted and the underlying exhibits were sealed, but the implication from unredacted snippets was that Goldman had suggested Allergan request accounting information from Valeant and Allergan rejected the recommendation. Then, according to Pershing and Valeant, after Goldman refused to go along with attacks on Valeant’s business model, Allergan hired additional experts with no such reservations.