Alison Frankel

Ascertainability sinks consumers’ antitrust case v. alleged egg cartel

By Alison Frankel
September 21, 2015

(Reuters) – Nearly 90 percent of American households, according to an Internet survey, buy plain old eggs. Not the fancy organic, free-range or Omega-3 eggs but the ordinary sort known in the industry as commodity shell eggs. And according to plaintiffs’ lawyers in a long-running antitrust class action in Philadelphia federal court, those egg-purchasing consumers were all victims of a conspiracy among egg producers to inflate the price of their product by restraining production. (Among the conspiracy’s alleged tactics was the untimely slaughter of flocks of egg-laying hens.)

Will crackdown on disclosure-only deals push M&A litigation out of Delaware?

By Alison Frankel
September 18, 2015

(Reuters) – We have reached a turning point in M&A shareholder litigation in Delaware Chancery Court.

Unlike SEC, FTC makes quick fix to ward off ALJ constitutional challenges

By Alison Frankel
September 16, 2015

(Reuters) – For the second time this month, a federal agency has declared its in-house judges are mere employees whose hiring is not addressed by the Appointments Clause of the U.S. Constitution. On Monday, four Federal Trade Commissioners denied LabMD’s motion to dismiss the FTC’s data security administrative proceeding against the cancer testing center, ruling that under the District of Columbia U.S. Circuit Court of Appeals’ 2000 decision in Landry v. Federal Deposit Insurance Corporation, its in-house judges are not “inferior officers’ because their initial decisions are reviewed by the commission before becoming final.

4th Circuit judges debate boycott conspiracies in new antitrust decision

By Alison Frankel
September 15, 2015

(Reuters) – In August 2000, a company called SawStop began showing table saw manufacturers a prototype of its technology to stop the saws when they come in contact with a hand or finger. A few companies were interested enough to open talks with SawStop, which wanted a royalty fee of as much as 8 percent of the wholesale price. Others worried about the cost and reliability of the safety feature, or wondered about the product liability implications if some but not all manufacturers included SawStop technology.

SEC not entitled to deference in State Street fraud appeal – law prof

By Alison Frankel
September 14, 2015

(Reuters) – When it comes to Securities and Exchange Commission enforcement litigation, the constitutionality of in-house proceedings is dominating journalists’ coverage (including mine). Former SEC officials, though, are dedicating a lot of attention of late to a less sexy – but perhaps more lastingly significant – question: Can the SEC redefine the parameters of securities fraud through a final determination in an enforcement action?

Time bar for class action opt-outs continues to divide trial courts

By Alison Frankel
September 11, 2015

(Reuters) – It has been just about a year since the U.S. Supreme Court abruptly tossed In re IndyMac, a case in which the justices were poised to resolve a split between the 2nd and 10th U.S. Circuit Courts of Appeal on time limits for securities fraud plaintiffs. The 10th Circuit had said in Joseph v. Wiles in 2000 that under the U.S. Supreme Court’s 1974 holding in American Pipe v. Utah, the filing of a class action stops the clock on both the statute of limitations and the statute of repose for plaintiffs who later decide to sue on their own. The 2nd Circuit disagreed in its 2013 IndyMac ruling, which concluded that because the statute of repose gives defendants a substantive right to be free from prospective liability after the specified time period, it cannot be tolled.

For shareholder lawyers, Treasury auction antitrust case is next big thing

By Alison Frankel
September 10, 2015

(Reuters) – U.S. securities and antitrust class action lawyers smell big money from the reported Justice Department investigation of bid-rigging in the $12.5 trillion market for U.S. government debt. But before they can begin serious litigation against the two dozen banks and brokerages designated as primary dealers in Treasury securities, they may have to fight one another to lead the case.

Pension, patent rights at stake in SCOTUS Spokeo case: new briefs

By Alison Frankel
September 9, 2015

The U.S. Supreme Court will hear oral arguments in Spokeo v. Robins on Nov. 2. And if you still had any doubts (despite my frequent reminders) about the potentially enormous consequences of this case, the 14 newly filed amicus briefs backing Thomas Robins – the lead plaintiff in a Fair Credit Reporting Act class action against the data broker Spokeo – should dispel them.

In hurry-up ruling, SEC declares in-house judges are constitutional

By Alison Frankel
September 8, 2015

The Securities and Exchange Commission’s 3-2 split decision last week in its administrative proceeding against the former syndicated radio host Raymond Lucia shows the far-reaching risk the agency faces if its administrative law judges are eventually determined to be subject to the Appointments Clause of the U.S. constitution.

Ex-MasterCard lawyer now helping opponents of $5.7 billion antitrust deal

By Alison Frankel
September 2, 2015

(Reuters) – Keila Ravelo, the notorious onetime partner at Willkie Farr & Gallagher and Hunton & Williams, spent nearly a decade advising her mainstay client MasterCard in a gigantic antitrust class action by retailers accusing MasterCard and Visa of conspiring to fix swipe fees for card users. She brought the case with her from Hunton to Willkie when she changed firms, and though she was not MasterCard’s lead lawyer in the case, she worked closely with MasterCard on managing the massive document production and management the litigation demanded. She also attended the mediation and negotiating sessions that culminated in final approval of a $5.7 billion class action settlement in December 2013. In many ways, that settlement was the capstone of Keila Ravelo’s legal career.