Alison Frankel

D.C. Circuit sends ominous signal on CFPB constitutionality

April 8, 2016

Next Tuesday morning, three judges on the District of Columbia U.S. Circuit Court of Appeals will hear arguments about whether the Consumer Financial Protection Bureau – a centerpiece of the 2010 Dodd-Frank Wall Street Reform Act – is unconstitutional. And based on an order issued this week by the three Republican appointees who will hear the case, CFPB lawyer Lawrence DeMille-Wagman had better be ready to defend his agency’s legitimacy.

There are no heroes in fight over pseudonyms in Ashley Madison MDL

April 7, 2016

(Reuters) – It’s honestly hard to figure out which side is less sympathetic: Ashley Madison customers who wanted to use fake names in data-breach litigation against the adultery-enabling website or Ashley’s parent company, Avid Dating Life, which promised clients secrecy but, when that promise was broken, demanded its customers use their real names to sue. Like the judge overseeing the consolidated Ashley Madison data breach litigation, U.S. District Judge John Ross of St. Louis, I ended up backing Avid Dating, but only because the site’s arguments happen to align with my own interests.

Uber and the gig economy’s existential litigation threat

April 6, 2016

(Reuters) – Uber calls itself a tech company. Its product, according to the company, is not transportation but a mobile device app that connects customers who want rides with drivers who supply them. And those drivers, according to Uber, are not employees entitled to protection under state and federal labor laws. They are independent contractors who use Uber’s app to monetize their time and access to a car.

Immigration case at SCOTUS could turn on wonky administrative law issue

April 5, 2016

(Reuters) – The future of four million undocumented immigrants in the U.S. rests on the subtle and surprisingly ill-defined distinction between a policy statement and a substantive rule.

Despite Daimler, N.Y. judge finds jurisdiction over foreign banks in terror-funding cases

April 4, 2016

(Reuters) – New York’s highest court ruled in 2012, in a case called Licci v. Lebanese Canadian Bank, that when foreign banks avail themselves of the state banking system – even if only to use a correspondent account at a New York bank to effect wire transfers – they are subject to the long arm of the New York courts. The 2nd U.S. Circuit Court of Appeals, which had referred that question to New York’s Court of Appeals, followed up with its own Licci decision in 2013, holding that the U.S. Constitution’s Due Process Clause does not preclude specific jurisdiction against defendants that have taken even minimal advantage of “the privilege of doing business” in New York.

Uber is the victim of Judge Rakoff’s curiosity in antitrust case

April 1, 2016

Uber made a fateful decision early in the litigation of an antitrust class action against its co-founder and CEO Travis Kalanick. The company believed there was no way the Manhattan federal court complaint – in which customer Spencer Meyer alleged a price-fixing conspiracy among the hundreds of thousands of drivers who independently signed up with the online car service – would survive a motion to dismiss. The case was before U.S. District Judge Jed Rakoff, who has a well-earned reputation for moving his dockets quickly. So Uber elected not to move to invoke the arbitration provision in its terms of service.

In “Lost Boys” suit over 2014 movie, judge OKs novel copyright theory

March 31, 2016

(Reuters) – Is an interview a creative collaboration between questioners and their subjects? And, if so, do interview subjects have copyrights? They might, according to a provocative ruling last week by U.S. District Judge Leigh May of Atlanta.

In mesh litigation, how a casual corporate decision ruined one woman’s life

March 30, 2016

(Reuters) – In 2005, as Johnson & Johnson was preparing to roll out Prolift, a new medical device designed to treat a urogynecological condition that affects millions of women, a French physician sent an urgent email to the J&J product director in the United States. Clinical evidence in Europe, the doctor’s email said, showed that Prolift mesh occasionally eroded through the walls of the vagina in women implanted with the device. Prolift also had a tendency to retract, according to the French physician, who said both of those complications could interfere with a patient’s ability to have sex. The doctor proposed adding cautionary language to the information J&J planned to provide to doctors in the U.S., warning them about potential complications of implanting Prolift in sexually active women, especially those who’d had hysterectomies.

Benchmark rate-rigging divides N.Y. trial courts in big-money antitrust cases

March 29, 2016

It’s a good thing the 2nd U.S. Circuit Court of Appeals has already heard arguments about whether collusion among banks attempting to manipulate key benchmark rates constitutes an antitrust injury – because the lower courts in Manhattan, where these big rate-rigging cases are being litigated, can’t seem to agree on that issue.

Philip Morris to SCOTUS: Don’t revisit corporate money in judicial elections

March 28, 2016

(Reuters) – It now costs, on average, at least $1 million to run a successful campaign for a seat on the state-court bench in Illinois, Wisconsin, North Carolina, Michigan and Ohio, according to an October 2015 report: “Bankrolling the Bench,” by Justice at Stake, the Brennan Center and the National Institute on Money in State Politics. In the two most expensive states for judicial campaigns, Michigan and Illinois, prospective judges spent more than $3 million, on average, in the most recent elections.