Alison Frankel

BP’s friends at the Supreme Court: new faces, old arguments

September 8, 2014

It must have been a lot of fun for the lawyers at King & Spalding to write the first couple of sentences in a new amicus brief at the U.S. Supreme Court, supporting BP’s petition for review of two rulings by the 5th U.S. Circuit Court of Appeals. King & Spalding’s client is the British government, which, like BP, believes that the 5th Circuit was wrong to uphold the oil company’s 2012 class action settlement because the deal supposedly permits recoveries even to businesses with no injuries attributable to the 2010 Deepwater Horizon oil spill. By now, that’s a well-worn argument, after BP’s two ultimately unsuccessful appeals at the 5th Circuit and its failed request for an emergency stay from the Supreme Court. But when you represent the Queen of England’s government, here’s how you get to introduce yourself:

New ISDAfix rate-rigging antitrust case isn’t just Libor redux

September 5, 2014

Daniel Brockett of Quinn Emanuel Urquhart & Sullivan knows as well as anyone what happened last year in the litigation over an alleged conspiracy to manipulate the London Interbank Offered Rate. You remember: In a true shocker of a decision, U.S. District Judge Naomi Reice Buchwald, who is presiding over Libor litigation consolidated in federal court in Manhattan, ruled that the alleged Libor rate-rigging didn’t give investors a cause of action for antitrust violations because the supposed conspiracy among Libor panel banks was not anticompetitive. For Brockett, who had been advising clients to bring Libor suits under securities and contract law, Buchwald’s ruling was an opportunity to push his alternative theory of how to recover for Libor manipulation.

Target’s bid to ditch $18 bln case by credit and debit card issuers

September 4, 2014

When hackers from Eastern Europe stole financial information from more than 100 million Target customers last fall, the data breach caused a huge headache for banks that issued the compromised credit and debit cards. In the midst of the holiday shopping season, card issuers had to notify clients about the breach, cancel accounts that had been hacked, reissue cards and reimburse customers for fraudulent transactions. The issuing banks have estimated that each card they replaced cost them between $15 and $50. In all, they have alleged in a class-action complaint against Target, their damages from the data breach fiasco may add up to more than $18 billion.

Can U.S. terror-financing litigation curtail terrorism?

September 3, 2014

I’ve spent the past two days in a federal courtroom in downtown Brooklyn, listening to the former head of Israel’s Palestinian Affairs Department, Arieh Spitzen, make a convincing case that Jordan’s Arab Bank processed tens of millions of dollars to Hamas leaders and Hamas-controlled organizations during the second Palestinian Intifada, when Hamas was engaged in a campaign of bombings that killed more than 600 Israeli and foreign civilians. Spitzen was the final witness for nearly 300 American victims of Hamas terrorism operations between 2000 and 2004, and his expert testimony weaved together the strands of their case into a neat bundle. According to Spitzen, Arab Bank transferred more than $4 million into accounts held by 18 prominent and publicly known Hamas officials; processed more than $32 million from Hamas’ worldwide fundraising operations to Hamas-controlled groups fronted by charities; and facilitated another $35 million in payments to Palestinians injured or imprisoned in the Intifada or to families of those who died in the uprising.

Justice Department to federal judges: Get off my lawn

August 29, 2014

Have you heard the old joke about the difference between God and a federal court judge? The punchline is that God doesn’t think he’s a judge – implying, of course, that federal judges have a perhaps inflated perception of their omnipotence.

Arab Bank official: Bank knew it was processing payments to ‘martyrs’

August 28, 2014

Arab Bank was aware that it was processing wire transfers from a Saudi Arabian charity to the families of “martyrs” of the second Palestinian Intifada against Israel, according to deposition testimony from the bank’s global head of operations, played Thursday for jurors in a terrorism finance trial against the bank in federal district court in Brooklyn. Lawyers for nearly 300 American victims of Hamas attacks on Israel between 2000 and 2004 also aired deposition testimony in which they confronted three executives from Arab Bank’s Palestinian operations with evidence the bank was apprised that at least three of those “martyrs” killed themselves in civilian bombings.

The audacious theory in Elan investors’ insider trading suit vs. SAC

August 15, 2014

Everyone knows that the hedge fund SAC Capital, now known as Point72, made a bundle when it ditched shares of the pharmaceutical companies Wyeth and Elan based on inside information that their jointly developed Alzheimer’s drug, bapineuzumab (better known as bapi), was a bust. SAC supposedly realized $555 million in profits and avoided losses because trader Mathew Martoma got early word about disappointing bapi test results from a doctor involved in the clinical trials. Both SAC and Martoma have, of course, been held to account for the trades: Martoma was convicted at trial and SAC pled guilty. In all, the hedge fund has forked over nearly $2 billion to the government because it illegally traded on inside information about the bapi trials.

Arab Bank terror trial claim: ‘It wasn’t routine banking’

August 14, 2014

According to Arab Bank, the world’s primary defense against terrorist financing is computer software. As Arab Bank lawyer Shand Stephens of DLA Piper told a Brooklyn federal jury Thursday morning, banks run programs that instantaneously monitor transactions to make sure money transfers don’t involve people and organizations on international terrorist lists. “It is the government who decides who should be designated as a criminal and put on the lists,” Stephens said during opening statements in the much anticipated trial of civil terror financing claims against the Jordan-based bank. “That is the way banking works.”

Climate scientist faces broad array of foes in suit vs. National Review

August 13, 2014

Penn State meteorology professor Michael Mann sounds like a pretty sympathetic character in the brief his lawyers filed last April at the District of Columbia Court of Appeals. Mann, who is widely credited with developing groundbreaking evidence of global warming, asked the appeals court to reject ongoing efforts by National Review and the Competitive Enterprise Institute to dismiss his libel and defamation case under the District of Columbia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law.

Can E&Y escape from Lehman Repo 105 litigation for less than $120 mln?

August 12, 2014

The big revelation in Anton Valukas‘s report on Lehman Brothers’ failure in March 2010 was the bank’s use of an accounting trick called Repo 105, in which Lehman used the cash it received from short-term sales of highly liquid securities to pay down its liabilities. Valukas’s examiner’s report said Lehman was apparently using Repo 105 transactions at the end of every quarter to make it seem as though the bank was less leveraged than it actually was. He advised that the Lehman estate had, at least, a “colorable claim” against Lehman’s auditor, Ernst & Young.