Alison Frankel

No ‘right to be forgotten’ even if record is expunged: 2nd Circuit

January 28, 2015

If you ask the state of Connecticut, Lorraine Martin was never arrested in August 2010 on narcotics charges. Yes, the arrest took place – Martin was charged along with her two adult sons after police searched her home in Greenwich and found marijuana, scales and plastic bags – but in January 2012 the state dropped its case and scrubbed Martin’s record. Under Connecticut’s erasure statute, which is similar to those in other states, Martin is permitted to swear under oath that she has never been arrested.

In insider trading appeal, Justice Department makes big concession

January 26, 2015

On Friday evening, the Justice Department filed its brief asking the entire 2nd U.S. Circuit Court of Appeals to review U.S. v. Newman, the biggest insider trading appellate decision in recent memory. It’s a long shot, considering how infrequently the 2nd Circuit agrees to hear cases en banc. But even in the unlikely event that the government ultimately prevails in the appeal, the Justice Department will still have lost ground in insider trading prosecution because the new brief abandons a position the government defended in earlier stages of the case.

How a powerful N.Y. politician (allegedly) exploited asbestos victims

January 22, 2015

It is a tragedy to be diagnosed with mesothelioma, a lung and chest cancer closely associated with exposure to asbestos. Mesothelioma is a particularly lethal disease, typically undetected until tumors have spread to vital organs. Most of the 3,000 or so people a year who are diagnosed with mesothelioma don’t even receive treatment other than palliative care for the fearsome symptoms of their cancer.

Shareholder challenges minimum-stake-to-sue bylaw

January 21, 2015

Last fall, directors of the life insurance settlement company Imperial Holdings adopted an apparently unique tactic to rein in suits by shareholders. As I reported at the time, the board amended Imperial’s bylaws to require shareholders to deliver written consent from the owners of at least 3 percent of the company’s outstanding shares in order to bring a class action or derivative suit.

Wal-Mart lawyers misled court: new plaintiffs’ brief

January 20, 2015

Stuart Grant of Grant & Eisenhofer has broken out the exclamation points – three of them in a row – in a new motion asserting that Wal-Mart should be fined more than $1 million for failing to turn over documents related to its internal investigation of bribes allegedly paid by its Mexican operation. According to the filing, Wal-Mart’s lawyers at Gibson Dunn & Crutcher and Potter Anderson & Corroon signed misleading certifications in October, attesting that they had decided what documents Wal-Mart would produce in order to comply with an order from Delaware Chancery Court.

Is $137.5 mln shareholder dividend new model for derivative suits?

January 15, 2015

On Thursday, the mining and metals company Freeport-McMoRan filed the long-awaited settlement of shareholder claims in Delaware Chancery Court that it overpaid for two affiliates whose 2013 acquisition was tainted by directors’ conflict of interest. Freeport agreed to pay $137.5 million, $115 million of which will come from its insurers. That’s the third-biggest-ever cash payout in a derivative settlement, behind the record-setting $275 million Activision Blizzard deal last November and the $139 million News Corp settlement in 2013.

Apple and Ericsson revive smartphone patent litigation wars, sort of

January 14, 2015

I felt downright nostalgic when I saw that Apple and Ericsson have sued each other over licensing fees for Ericsson’s standard-essential patents for wireless technology. It feels so long since the days when smart device patent filings were a daily occurrence!

Can employee arbitration clauses stretch to cover co-defendants?

January 13, 2015

If you are an employee who has signed a contract requiring you to arbitrate claims against your employer, you’re pretty much stuck with it. After the U.S. Supreme Court’s rulings in AT&T Mobility v. Concepcion in 2011 and American Express v. Italian Colors in 2012, employees (and consumers, for that matter) have little to no hope of litigating their cases in court – rather than before arbitration panels – when they’ve agreed to arbitration clauses. But should employees’ arbitration agreements with their employers also force them to arbitrate against co-defendants that haven’t signed the agreements?

By restricting charity deals, appeals courts improve class actions

January 12, 2015

I am sure that Legal Services of Eastern Missouri, which provides free help to low-income and elderly folks in and around St. Louis, could have done a lot of good with the $2.3 or so million it was designated to receive from the settlement fund in a long-running securities class action over the 1998 merger that created Bank of America. But if you believe in the long-term future of class actions, you should welcome an 8th U.S. Circuit Court of Appeals decision last week that said that Legal Services isn’t entitled to the money.

The legal argument against mandatory vaccination

January 8, 2015

A three-judge panel at the 2nd U.S. Circuit Court of Appeals heard oral arguments on Jan. 5 in Phillips v. City of New York, in which three families sued the city and the state over enforcement of New York’s law mandating vaccination for public school children. Just two days later, the appeals court affirmed a trial judge’s dismissal of the families’ constitutional challenge. In a 14-page per curiam opinion, 2nd Circuit Judges Gerard Lynch and Denny Chin and U.S. District Judge Edward Korman of Brooklyn, sitting by designation, said that New York’s mandatory vaccine law does not violate the families’ constitutional due process, equal protection or religious freedom rights.