Opinion

Alison Frankel

Can market competitors police false ads better than class actions?

Alison Frankel
Jun 13, 2014 21:32 UTC

Companies should not mislead consumers about their products. Some do anyway. Those companies should be held accountable for their deception, not only because they lied but also to deter other companies from lying.

No one can seriously dispute any of these points, but what is the most effective way to stop businesses from deceiving consumers? We have state and federal regulatory agencies, of course, but regulators would be the first people to tell you that they can’t police every advertisement, label and package put out by businesses selling products to American buyers. That’s why state consumer protection laws give customers the rights to bring their own cases — except that, as a practical matter, individual consumers don’t really drive litigation against corporations that supposedly deceived them. Class action lawyers do, because they can represent buyers whose individual claims wouldn’t otherwise be worth pursuing.

Consumer class actions over deceptively advertised low-cost items are a remarkably inefficient vehicle for assuring the integrity of the consumer marketplace. Here, again, there’s really no legitimate argument to the contrary. I don’t mean to impugn the intentions of class action lawyers. Most (though not all) of them are prosecuting legitimate cases on behalf of consumers they truly believe to have been deceived by false corporate advertising. They force defendants to change misleading labels, ads or packaging and to agree not to use the deceptive material again. They also sometimes deliver money unclaimed by class members to charities, usually ones involved in righting the alleged wrongs in the case.

On the other hand, plaintiffs lawyers are awarded fees based on the size of the settlement they obtain, which is an incentive to sue deep-pocketed companies, but not necessarily the most egregious offenders. Class actions are procedurally complex, so they eat up a lot of judicial time. And in the end, an infinitesimal number of consumers end up with cash compensation for being snookered. There’s scant empirical data on claims rates in class actions over low-cost items, but in a recent declaration in a suit involving false advertising allegations against Duracell, a claims administrator said that the median claims rate across hundreds of cases in which purchasers received indirect notice — which is how consumers find out about most settlements involving low-cost items — was .023 percent. That means that for every 4,350 purchasers of an allegedly deceptively advertised product, one person actually filed a claim for compensation.

Proponents of consumer class actions argue that their most important benefit is something that can’t be calculated: They scare corporations straight. No business wants to spend money paying its own lawyers to defend a class action, and then paying lawyers for the class through a settlement. That’s a good argument, especially because it’s impossible to refute. We’ll never know how many companies thought better of a misleading label because it was worried about defending a class action.

Bain, Goldman settlements in collusion case undercut shareholder releases

Alison Frankel
Jun 12, 2014 21:25 UTC

As inevitably as thunder follows lightning, shareholder class actions follow deal announcements. Debate has been raging for years now about whether shareholders derive any real benefits from the resolution of these cases, with judges increasingly skeptical about awarding big fees to plaintiffs lawyers who win only enhanced disclosures in deal documents. For defendants, the upside of settlements is more obvious: They obtain global releases of shareholder claims related to the transactions.

Or do they? On Wednesday, Goldman Sachs and Bain Capital agreed to pay a combined $121 million ($54 million from Bain, $67 million from Goldman) to resolve antitrust class action claims that they and several other private equity defendants cheated shareholders in eight companies acquired in private equity LBOs by colluding to depress acquisition prices. According to Patrick Coughlin of Robbins Geller Rudman & Dowd, who is one of the lead lawyers in the antitrust case, the beneficiaries of the Bain and Goldman settlements will include shareholders who previously released claims against the private equity funds in shareholder M&A class action settlements.

Bain and Goldman, along with their fellow antitrust defendants — Blackstone, TCG, KKR, TPG and Silverlake — had argued in a motion in January that shareholder releases in the original M&A cases should preclude certification of a class of onetime shareholders injured by their supposed conspiracy to depress LBO prices. It was a pretty creative argument, based on a ruling in the collusion case that shareholders who sold stock in the various LBO deals could not introduce evidence from those transactions against defendants they released from liability in M&A settlements. That patchwork of evidence, the defendants contended, meant that the collusion case did not meet commonality and typicality standards for class actions.

Judge says Cleary Argentina memo is privileged, he won’t ‘make use of it’

Alison Frankel
Jun 10, 2014 21:11 UTC

The hedge fund NML Capital is going to have to execute some fancy footwork to maintain its argument that Argentina is plotting to evade a ruling by the 2nd U.S. Circuit Court of Appeals that prohibits the foreign sovereign from making payments to holders of its restructured debt before paying off hedge funds that refused to exchange defaulted bonds.

As I told you last week, NML presented U.S. District Judge Thomas Griesa with what it considered smoking-gun evidence: published accounts of a May 2 memo from Argentina’s lawyers recommending that the country’s “best option” if the U.S. Supreme Court refuses to hear Argentina’s appeal of the 2nd Circuit decision would be to default “and then immediately restructure all of the external bonds so that the payment mechanism and the other related elements are outside of the reach of American courts.”

But in a June 3 letter to lawyers for NML and for Argentina, Judge Griesa said that the memo, written by Cleary Gottlieb Steen & Hamilton for Argentina’s Minister of Economy and Public Finance, “is clearly privileged,” based on his assumption that Cleary didn’t intend the document to become public. (It was leaked in the Argentine press, then was reported by the Financial Times’s FT Alphaville blog, which links to an English translation of the entire five-page memo, entitled “Possible Outcomes of the Petition for Certiorari and Issues Regarding the Settlement of the Debt.”) The judge said he would “not make use of” the privileged document.

SCOTUS repose opinion is good news for securities defendants

Alison Frankel
Jun 9, 2014 21:37 UTC

As of April, the Federal Housing Finance Agency has recovered about $15 billion from 15 big banks that supposedly misrepresented the quality of the mortgage-backed securities they peddled to Fannie Mae and Freddie Mac. FHFA is expecting more to come: The conservator still has cases under way against Goldman Sachs, HSBC, Nomura and Royal Bank of Scotland. The National Credit Union Administration, meanwhile, has netted more than $330 million in settlements with banks that duped since-failed credit unions into buying deficient MBS. NCUA is also still litigating against several other defendants, some of which it sued only last September. When you add in MBS suits by the Federal Deposit Insurance Corporation on behalf of failed banks, there are about four dozen ongoing cases, involving some $200 billion in rotten mortgage-backed securities, brought by congressionally created stewards.

Just about all of those cases are alive only because of so-called “extender statutes” in which Congress lengthened the time frame for the agencies to bring claims under the Securities Act of 1933. (The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 addressed claims by NCUA and FDIC; the Housing and Economic Recovery Act of 2008, which created FHFA, gave it extra time for Fannie and Freddie claims.) As you know if you’re a faithful reader, bank defendants have tried to argue that the nearly identical extender provisions in FIRREA and HERA only addressed the Securities Act’s one-year statute of limitations, not the law’s three-year statute of repose. Unfortunately for them, both the 2nd U.S. Circuit Court of Appeals, in an FHFA case against UBS, and the 10th Circuit, in an NCUA case against Nomura, concluded that when Congress enacted the FIRREA and HERA extender provisions, it intended to lift both time bars, the statutes of limitations and repose.

On Monday, in a case called CTS Corporation v. Waldburger, the U.S. Supreme Court gave the banks that have stuck it out in litigation against FHFA, NCUA and FDIC a glimmer of hope. The Waldburger case presented the question of whether an extender statute in the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 pre-empts the statute of repose under North Carolina tort law. Seven justices, in an opinion by Justice Anthony Kennedy, ruled that it does not. More broadly, though, the court drew a clear line between the statutes of limitation and repose — which is what bank defendants in MBS litigation have long argued for. It’s going to be very interesting to see now what the justices do about Nomura’s pending petition for certiorari in the NCUA case in which 10th Circuit rejected its statute of repose defense. The petition was first scheduled to be considered back in March but the justices haven’t yet issued an order, presumably because they’ve been waiting to rule in Waldburger.

Asbestos plaintiffs lawyers: Garlock is the bad guy, not us

Alison Frankel
Jun 6, 2014 22:12 UTC

Last January, U.S. Bankruptcy Judge George Hodges of Charlotte, N.C., issued a doozy of a ruling in the Chapter 11 of the gasket maker Garlock Sealing Technologies. Lawyers for asbestos claimants wanted Garlock to set aside more than $1 billion in a trust for thousands of current and future victims of asbestos exposure. Garlock, which maintains that anyone exposed to its long-ago products was also exposed to more potent products manufactured by other companies, argued that its liability was no more than $125 million. Plaintiffs lawyers based their estimate on Garlock’s settlement history; Garlock contended that it was manipulated into overpaying in settlements with plaintiffs lawyers who withheld evidence that their clients were exposed to other manufacturers’ products.

To test Garlock’s allegations, Hodges ordered discovery on 15 closed product liability cases in which Garlock paid out significant settlements. He held a 17-day hearing that included testimony from 29 witnesses and hundreds of exhibits. In all 15 of the settled cases, Hodges said, Garlock was able to show that lawyers for asbestos plaintiffs withheld evidence that their clients were exposed to asbestos products from other companies. “The fact that each and every one of (the surveyed cases) contains such demonstrable misrepresentation is surprising and persuasive,” Hodges wrote. He concluded that the “startling pattern of misrepresentation” so inflated Garlock’s settlements that the company’s settlement history was not a reliable gauge of its future liability. Hodges sided with the company and pegged Garlock’s asbestos liability at $125 million.

Other asbestos defendants seized on the ruling to argue that plaintiffs lawyers were monkeying with evidence. Some, including Ford and Volkswagen, moved for access to records from the estimation hearing, arguing that they deserved to know whether plaintiffs who settled with Garlock later turned around and sued them. The U.S. Chamber of Commerce, meanwhile, called Hodges’ opinion “a watershed” in exposing wrongdoing by asbestos lawyers, and suggested that Congress take note of it. The U.S. House of Representatives had already passed a bill to boost disclosure requirements for asbestos bankruptcy trusts before Hodges issued his Garlock opinion, but in May 2014, Senator Jeff Flake (R-Ariz.) introduced a Senate version of the bill.

How GM’s legal department failed the company and its customers

Alison Frankel
Jun 5, 2014 23:16 UTC

There’s a heartbreaking moment deep in the internal investigation report GM released Thursday, detailing the company’s botched response to a sometimes fatal defect in Cobalt ignition switches. A young lawyer named Nabeel Peracha, who had joined GM in April 2012, was at a meeting just a few months later with other GM lawyers. Their topic was the settlement of a West Virginia product liability case stemming from a crash in 2009 of a Chevrolet Cobalt that skidded on black ice, ran off the road and hit two trees. The front-seat passenger sustained head injuries when the Cobalt’s airbag failed to deploy.

The crash investigation showed that the car’s ignition switch was off at the time of the impact. That was potentially a big problem for GM, according to its outside defense lawyers at Eckert Seamans, because the victim’s expert had turned up a 2007 Indiana University study identifying a link between Cobalt ignition switch defects and air-bag deployment failures, as well as a GM service bulletin from 2006 that noted the Cobalt’s unexplained stalling problem. Moreover, the lawyers from Eckert Seamans warned, the plaintiff’s lawyer knew about other Cobalt crash cases in which ignition switches were in the off position and the air bags never deployed. If GM didn’t settle, the lawyers said, it risked seven-figure punitive damages.

The in-house lawyers at the weekly Roundtable meeting to discuss important settlements agreed that GM’s litigation posture was only going to get worse, so it made sense to settle. Peracha, the rookie lawyer, piped up: Considering the Eckert Seamans evaluation of Cobalt problems, why hadn’t GM issued a recall on the cars? According to the GM report, “The response from the other attorneys was that engineering did not know how to fix the problem, that the incident rate was low, and that ‘we told engineering and they’re looking into it.’” Almost two years later — after the Cobalt defect exploded into a huge corporate scandal — Peracha told GM investigator Anton Valukas of Jenner & Block that the other GM lawyers at the 2012 meeting, who’d been at the company longer than he had and had been hearing about these Cobalt ignition-switch cases since 2006, conveyed the impression that they had already done everything they could.

DOJ: Fannie, Freddie shareholder demands endanger housing market

Alison Frankel
Jun 4, 2014 22:28 UTC

The Justice Department really, really, really does not want to turn over documents disclosing the government’s projection of profits at Fannie Mae and Freddie Mac, nor its policy plans for the mortgage giants. In a filing this week in the U.S. Court of Federal Claims, the head of Fannie and Freddie’s conservator, Melvin Watt of the Federal Housing Finance Agency, warned that if FHFA has to produce that material to preferred shareholders suing for a share of Fannie and Freddie’s profits, the entire housing market — nay, the entire U.S. economy! — will be destabilized. That’s an awfully dire prediction for what amounts to a discovery dispute.

The government is asking Judge Margaret Sweeney for a protective order restricting the discovery it must produce to preferred shareholders of Fannie Mae and Freddie Mac, who contend that the Treasury Department illegally appropriated their fair allocation of profits when FHFA and Treasury agreed in August 2012 to amend the terms of Treasury’s bailout investment in Fannie and Freddie. The so-called “net worth sweep” diverted all Fannie and Freddie profits back to the government, leaving nothing for preferred shareholders. Led by the hedge funds Fairholme and Perry Capital, those shareholders have sued the United States in both federal district court in Washington, where they’re trying to block the alleged appropriation, and in the Court of Claims, where they’re hoping to recover some of the tens of billions of dollars they claim they will be due when Fannie and Freddie are liquidated. (The litigation, to be clear, doesn’t involve common stock in Fannie and Freddie, in which activist investor Carl Icahn has just sunk about $50 million, apparently in the hope that common shareholders will recover something when Congress figures out how to reform the mortgage investment market.)

The preferred shareholders, as I’ve reported, have already turned up in their federal district court case what they regard as evidence that Treasury planned all the way back in 2010 to wipe out the value of their shares. But Fairholme and its lawyers at Cooper & Kirk believed they’d won the right to much newer and more sweeping materials in February, when Judge Sweeney ruled in the Court of Claims that preferred shareholders are entitled to see government documents that would help them refute the Justice Department’s arguments for tossing the case. Among other things, Sweeney wrote, shareholders needed to know whether FHFA was acting as an arm of the U.S. government when it agreed to divert all Fannie and Freddie profits to Treasury and whether the government expects the mortgage entities to continue to generate profits.

Delaware Supreme Court strikes (light) blow for open access

Alison Frankel
Jun 3, 2014 20:32 UTC

Remember the hullabaloo in the last couple of years over Delaware’s plan to permit corporations to resolve their disputes in secret arbitration before Chancery Court judges? It was quite an idea, giving businesses the opportunity to present their arguments to the most experienced corporate jurists in the land without the inconvenience of public exposure. Unfortunately for its proponents, the secret arbitration regime didn’t take the U.S. Constitution into quite enough account. The plan was shot down by the 3rd U.S. Circuit Court of Appeals, which found that under the “logic and experience” test for public access, the Delaware scheme ran afoul of the First Amendment. In March, the U.S. Supreme Court declined to review the 3rd Circuit decision, which meant that corporations no longer have the right to arbitrate in secret in Chancery Court.

And after a ruling Monday by the Delaware Supreme Court, businesses shouldn’t count on litigating in secret, either. Justices Randy Holland, Carolyn Berger, Jack Jacobs and Henry Ridgely and Superior Court Judge Richard Cooch (sitting in for recused Chief Justice Leo Strine) dismissed an interlocutory appeal by Al Jazeera of an order requiring it to file a mostly unredacted version of its 2013 complaint against AT&T. The state Supreme Court didn’t explain why it abruptly tossed an appeal that was already briefed and argued before it. But the dismissal leaves intact Vice-Chancellor Sam Glasscock‘s Al Jazeera opinion as Delaware’s operative precedent on confidentiality designations — and Glasscock pays considerable deference to open access.

“When sensitive information that the parties wish to keep confidential directly impacts the public’s basic knowledge of particular court proceedings,” Glasscock wrote, “the interest of the public in accessing this information outweighs the economic harm to the parties that disclosure may cause.” (Hat tip on the Supreme Court order to Kyle Wagner Compton of The Chancery Daily.)

Did Argentina lie to the U.S. Supreme Court?

Alison Frankel
Jun 2, 2014 20:38 UTC

I may have been too quick to believe that Argentina actually intended to follow through on a pledge to the U.S. Supreme Court.

Last Friday, I credited the Argentine government with an historic concession in its May 27 brief to the court, in which Argentina pledged to comply with an injunction from the 2nd U.S. Circuit Court of Appeals prohibiting it from making payments to holders of its restructured debt before paying off hedge funds that refused to exchange defaulted bonds. Argentina is trying to persuade the Supreme Court to grant review of the 2nd Circuit’s so-called pari passu (or equal footing) injunction, and I believed that the promise of compliance from a country notorious for defying bondholder judgments against it was a show of good faith.

But NML Capital, one of the hedge funds opposing Argentina at the Supreme Court, presented evidence Friday afternoon to a Manhattan federal judge suggesting that the country is secretly planning to evade U.S. court orders in the event that the justices refuse to hear its case. NML told U.S. District Judge Thomas Griesa, who has been presiding over the Argentine bond litigation for more than a decade, about a newly surfaced May 2 memo from Argentina’s lawyers at Cleary Gottlieb Steen & Hamilton to the country’s Minister of Economy and Public Finance. The five-page memo lays out various scenarios for resolving Argentina’s dispute with the hedge fund holdouts and concludes that if the Supreme Court denies cert, the government’s “best option” would be to default “and then immediately restructure all of the external bonds so that the payment mechanism and the other related elements are outside of the reach of American courts.” (NML didn’t file the confidential memo because of privilege concerns, but The Financial Times’s FTAlphaville blog has an English translation of the entire document, which has also been reported in the Argentine press.)

In new SCOTUS brief, Argentina pledges to comply with U.S. courts

Alison Frankel
May 30, 2014 20:44 UTC

The most notorious deadbeat in the U.S. courts made an historic concession this week.

In a May 27 response brief at the U.S. Supreme Court, Argentina said that, contrary to the accusations of its hedge fund foes, it will comply with directives from the 2nd U.S. Circuit Court of Appeals to pay renegade sovereign debtholders if the Supreme Court refuses to hear its appeal. That pledge marks a big departure from the outright defiance Argentina showed last year at the 2nd Circuit, when its lawyers informed the court that the government “would not voluntarily obey” a U.S. court order it disagreed with. Even after the appeals court ruling — which upheld an injunction that bars Argentina from making payments to holders of its restructured debt before it pays more than $1 billion it owes to the hedge fund holdouts — the Argentine government vowed that it would never negotiate with the rapacious hedge funds. Argentina now seems to be reconsidering that vow, both outside of the courts, as Reuters reported Thursday, and within the U.S. litigation, as the May 27 filing indicates.

In the new brief, Argentina’s lawyers — Paul Clement of Bancroft, who is counsel of record and a recent addition to Argentina’s team, and the country’s longtime advisers Jonathan Blackman and Carmine Boccuzzi from Cleary Gottlieb Steen & Hamilton — repeated their arguments that the Supreme Court should grant certiorari and ask New York’s highest state court to interpret the pari passu, or “equal footing,” provision in Argentina’s sovereign debt contracts. Argentina also suggested that this case is of such overwhelming importance to foreign sovereigns and to foreign debt markets that the Supreme Court might want to invite the views of the U.S. government, which (as I noted in March) didn’t file an amicus brief supporting Argentina’s cert petition.

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