Alison Frankel

Aurora massacre victim’s parents drop appeal, owe ammo dealers $203,000

By Alison Frankel
July 31, 2015

(Reuters) – Sandy and Lonnie Phillips, the parents of 24-year-old Jessica Redfield Ghawi – one of the 12 moviegoers killed in James Holmes’ 2012 rampage in Aurora, Colorado – told MSNBC this week that they are facing bankruptcy because they owe $203,000 to three online business that sold Holmes the ammunition and body armor he used in the massacre.

Does lawyer misconduct taint Amex, MasterCard antitrust settlements?

By Alison Frankel
July 30, 2015

(Reuters) – We may never really understand why plaintiffs’ lawyer Gary Friedman of the Friedman Law Group sabotaged his own promising career by secretly disclosing a trove of privileged and confidential documents from his antitrust class action against American Express to Keila Ravelo, MasterCard’s counsel in a parallel class action against Visa and MasterCard. But thanks to filings Wednesday in the Amex case, we now know the breathtaking scope of Friedman’s improper disclosures, which Hofstra law professor Roy Simon described in an expert witness report as the most “repeated and serious violations” of professional duties that he can recall in 20 years of advising class counsel.

7th Circuit roundly rejects 3rd Circuit ‘ascertainability’ framework

By Alison Frankel
July 29, 2015

Class action lawyers may want to get up a petition to declare July 28 “Judge David Hamilton Day” because they could not have asked for a stronger defense of class actions – and the existing federal rules governing class certification – than they received Tuesday in Hamilton’s opinion for a three-judge panel of the 7th U.S. Circuit Court of Appeals in Mullins v. Direct Digital. The 7th Circuit scrutinized the 3rd Circuit’s controversial requirement of a “reliable and administratively feasible” way to ascertain class membership – and wholly rejected it. According to Judge Hamilton and his panel colleagues, Judges William Bauer and Michael Kanne, the 3rd Circuit’s 2013 ruling in Carrera v. Bayer upset the federal rules’ carefully wrought framework for class certification.

SCOTUS Halliburton ruling finally helps a defendant – Halliburton!

By Alison Frankel
July 28, 2015

(Reuters) – Thirteen months after the U.S. Supreme Court decided not to do away with securities fraud class actions in Halliburton v. Erica P. John Fund, U.S. District Judge Barbara Lynn of Dallas has given the most intensive analysis yet to the high court’s ruling that defendants can try to ward off class certification by rebutting the presumption of marketwide fraud. Her 53-page opinion shows the Supreme Court’s Halliburton decision, which has so far been of little help to securities class action defendants, can benefit corporations willing to spend the time and money to hire economics experts and conduct price impact studies.

2nd Circuit’s Facebook IPO opinion is boon for corporate defendants

By Alison Frankel
July 24, 2015

Facebook and its defense lawyers at Kirkland & Ellis and Willkie Farr & Gallagher pulled an interesting trick to deal with a proliferation of shareholder derivative suits that followed the company’s $16 billion IPO in 2012. And on Friday, the 2nd U.S. Circuit Court of Appeals gave their tactic its blessing. Corporate defendants take note: You may be able to get a federal judge to toss state-law breach-of-duty suits without ever establishing federal court jurisdiction.

Judge rejects Turtles’ bid to block $210 million Sirius XM deal

By Alison Frankel
July 23, 2015

Former Turtles bandmates Flo & Eddie may live forever on oldies stations, but their company’s lawyers at Gradstein & Marzano have lost a chance to set precedent on the prerogatives of class counsel. On Wednesday, U.S. District Judge Philip Gutierrez of Los Angeles denied Gradstein & Marzano’s motion to enjoin the satellite and Internet radio company Sirius XM from moving ahead with a $210 million settlement with five record labels that say they own or control the rights to 80 percent of the pre-1972 songs played on Sirius XM stations.

Omnicare’s early impact: mixed and muted

By Alison Frankel
July 22, 2015

On Tuesday, the 2nd U.S. Circuit Court of Appeals sent a securities class action against Deutsche Bank and several underwriters back to U.S. District Judge Deborah Batts of Manhattan for reconsideration in light of the U.S. Supreme Court’s March 2015 decision in Omnicare v. Laborers District Council. Judge Batts had tossed the case in 2013, ruling that under 2nd Circuit precedent in Fait v. Regions Financial, Deutsche Bank’s estimation of its exposure to mortgage-backed securities in offering materials for a stock issue was an opinion that could not give rise to securities fraud liability. After Omnicare, in which the Supreme Court set new rules for when opinions are actionable, the Supreme Court remanded the Deutsche Bank case to the 2nd Circuit, which, in turn, passed it to Judge Batts.

The 7th Circuit just made it a lot easier to sue over data breaches

By Alison Frankel
July 21, 2015

One of the truisms of big litigation is that plaintiffs lawyers are adaptive folks. That’s certainly been borne out over the last couple of years in class actions against corporations whose customer or employee information has been compromised in hacker attacks. Federal judges in district courts dismissed those cases in waves after the U.S. Supreme Court clarified in its 2013 decision in Clapper v. Amnesty International that to meet constitutional requirements to sue in federal court, plaintiffs have to allege they are at imminent risk of suffering a concrete injury.

SEC stands by ad hoc rulemaking in State Street appeals brief

By Alison Frankel
July 20, 2015

Securities defense lawyers were surprised, and not in a good way, by a ruling last December in which the U.S. Securities and Exchange Commission, in a 3-to-2 decision, found two former State Street executives liable for deceiving investors, even though the two had been cleared by an SEC in-house judge. That fact alone was disquieting for defendants, but even more so was that the commissioners used the State Street case as a vehicle to reinterpret antifraud provisions of the securities laws – and then to hold one of the executives, John Flannery, liable under the reinterpretation.

SCOTUS history backs 2nd Circuit insider trading opinion in Newman: law prof

By Alison Frankel
July 17, 2015

The first day of August is the Justice Department’s deadline for asking the U.S. Supreme Court to review the most consequential ruling on insider trading in recent memory, the 2nd U.S. Circuit Court of Appeal’s decision in U.S. v. Newman. You might think that seeking certiorari would be an easy decision for the government, since both federal prosecutors and the Securities and Exchange Commission have said the 2nd Circuit’s Newman ruling will cost them cases because it restricts the definition of what constitutes a “personal benefit” for corporate insiders who pass along confidential information.