Opinion

Alison Frankel

Can banks force clients to litigate, not arbitrate?

Alison Frankel
Apr 3, 2014 20:38 UTC

If you are a customer of a big bank — let’s say a merchant unhappy about the fees you’re being charged to process credit card transactions — good luck trying to bring claims in federal court when you’re subject to an arbitration provision. As you probably recall, in last term’s opinion in American Express v. Italian Colors, the U.S. Supreme Court continued its genuflection at the altar of the Federal Arbitration Act, holding definitively that if you’ve signed an agreement requiring you to arbitrate your claims, you’re stuck with it even if you can’t afford to vindicate your statutory rights via individual arbitration.

But what if you’re a bank customer who wants to go to arbitration — and, in a weird role-reversal, the bank is insisting that you must instead bring a federal district court suit? Will courts show the same deference to arbitration when a plaintiff, rather than a defendant, is invoking the right to arbitrate and not litigate?

On Friday, the 2nd Circuit Court of Appeals will hear a rare tandem argument in two cases that present the question of whether bank clients have the right to arbitrate their claims even though they’ve signed contracts with forum selection clauses directing disputes to federal court. Believe it or not, the 2nd Circuit will be the third federal appellate court to answer this question, which has divided its predecessors. In January 2013, the 4th Circuit ruled that a UBS client may proceed to arbitration, but on Friday, the 9th Circuit held that a Goldman Sachs customer who agreed to a nearly identical forum selection clause must sue in federal court. To add to the confusion, the 9th Circuit panel was split, which led the majority to call the case “a close question.”

All of the appellate cases date back to the days when banks were hawking auction-rate securities as convenient instruments for clients who wanted to issue debt. Interest rates on the long-range, purported liquid securities would be periodically reset through an auction process, and banks told clients that they could hedge against a rise in rates through swap agreements. What they didn’t mention — at least according to clients — is that banks were artificially propping up the ARS market with their own bids on the securities. The whole wobbly structure collapsed in February 2008, and clients were marooned with debt carrying fast-rising interest rates that their swaps couldn’t offset.

Those debt issuer clients, to be clear, were different from bank brokerage customers who bought auction-rate securities under the misimpression that they were safe and liquid investments. Regulators made sure that banks bought back ARS from most of their brokerage customers. Other customers won great results in arbitrations before Financial Industry Regulatory Authority panels. (They fared less well in federal courts, where judges mostly ruled that banks were protected by website disclaimers about the ARS market that they’d posted after an investigation by the Securities and Exchange Commission in 2006.) Debt issuers, however, had a more subtle theory than investors in auction-rate securities, developed by the New Orleans firm Fishman Haygood Phelps Walmsley Willis & Swanson: They claimed that their financial advisers were responsible for the high interest rates they had to pay on bonds structured as ARS.

Sotheby’s shareholders defend activist investors in suit vs board

Alison Frankel
Apr 2, 2014 20:13 UTC

The heat surrounding so-called activist investors — hedge funds that buy up big chunks of a company’s stock, then leverage their position to mount proxy campaigns or otherwise force boards to change the way the company is managed — could hardly be more intense than it is now. Well, okay, maybe there would be even more controversy if Michael Lewis wrote a book about a genius upstart who defied accepted deal conventions and revolutionized corporate takeover battles. But putting aside the Wall Street tizzy inspired by this week’s publication of Lewis’s new book about high-frequency trading, the deal world’s favorite topic remains activist investors like Carl Icahn, Paul Singer, William Ackman and Dan Loeb.

Just in the last two weeks, Chief Justice Leo Strine of the Delaware Supreme Court published his extraordinary essay on shareholder activism at the Columbia Law Review, the Wall Street Journal did a fabulous story on hedge funds tipping each other off about their targets, and Martin Lipton of Wachtell, Lipton, Rosen & Katz — whose avowed disdain for short-term investors has recently manifested in litigation with Icahn — revealed at the Tulane M&A fest that there are actually a couple of activist funds he respects. (He said he wouldn’t go so far as to say he “likes” them, though.)

A new shareholder derivative complaint against the board of the auction house Sotheby’s is the latest contribution to the furor over activist investors. Two of the most successful shareholder firms in the game, Bernstein Litowitz Berger & Grossmann and Grant & Eisenhofer, filed the class action Tuesday night in Delaware Chancery Court on behalf of St. Louis’s employee pension fund. The suit squarely aligns shareholders with activist investor Loeb and his Third Point hedge fund, which owns nearly 10 percent of Sotheby’s stock and has launched a proxy contest for three board seats at the auction house.

D.C. judge wants DOJ to justify ‘gag orders’ on Twitter, Yahoo

Alison Frankel
Apr 1, 2014 20:58 UTC

For the last two weeks, U.S. Magistrate Judge John Facciola of Washington, D.C., has been on a one-man campaign to hold the government accountable for secret subpoenas to Internet companies.

On March 24, Facciola issued unusual orders in two cases, one involving Twitter and the other Yahoo. The Justice Department had applied for court orders under the Electronic Communication Privacy Act to bar Twitter and Yahoo from disclosing that they had received grand jury subpoenas for customer information. Those non-disclosure applications are routine, but Facciola decided he wasn’t going to grant the government’s requests unless Twitter and Yahoo had an opportunity to be heard. He ordered the government to file a redacted version of its applications on the public docket and asked Twitter and Yahoo to inform him whether they intended to file briefs in response.

The government immediately went over Facciola’s head, appealing his orders to Chief Judge Richard Roberts of Washington federal district court. Facciola’s response? He refused to grant a Justice Department non-disclosure application in a third case, also involving a grand jury subpoena for Twitter records. And this time, the magistrate wrote a detailed, citation-filled opinion explaining why he believes Twitter has a constitutional right under the First and Fifth Amendments to be heard before he can issue what he called a “gag order.” Facciola once again instructed the Justice Department to file a public version of its non-disclosure application and invited Twitter to brief him on its view of its free speech rights.

New yen Libor ruling is bad omen for rate-rigging antitrust claims

Alison Frankel
Mar 31, 2014 21:12 UTC

One of the most controversial and consequential antitrust rulings of the last few years came last March, when U.S. District Judge Naomi Reice Buchwald of Manhattan tossed class action claims under the Sherman Act against the banks on the London Interbank Offered Rate panel. Buchwald acknowledged that her holding was “incongruous,” considering that some of the bank defendants had already admitted to colluding to manipulate the benchmark Libor rate, which was used to set interest rates for trillions of dollars of securities. But the judge was convinced the class couldn’t show any antitrust injury. The Libor rate-setting process (in which individual banks report the interest rates they’re being charged to borrow, which are then averaged and reported daily) was cooperative, not competitive, she said. So even if the banks conspired to rig Libor, Buchwald held, any harm they caused was not from reduced competition — and since federal and state antitrust laws are intended to target conduct that impedes competition, they don’t apply to Libor manipulation.

The ruling shocked antitrust plaintiffs firms, which had sunk enormous expense into expert analysis of the alleged Libor conspiracy. They asked Buchwald for leave to file an interlocutory appeal of her ruling to the 2nd Circuit Court of Appeals. She refused (and pretty angrily, to boot), which means that it will probably be years before the 2nd Circuit gets to consider the question of whether collusive rate-rigging is anti-competitive. After Buchwald’s ruling, some Libor claimants, including the Federal Deposit Insurance Corporation in its recent suit against Libor panel banks, made the decision to assert breach-of-contract claims as their main cause of action. But that’s only possible when plaintiffs engaged in Libor-pegged transactions directly with the banks. Other Libor plaintiffs, like the National Credit Union Administration, are counting on the 2nd Circuit to overturn Buchwald’s interpretation of antitrust injury.

That hope looks a bit more remote after a ruling Friday by a Buchwald colleague, U.S. District Judge George Daniels, who is overseeing a class action alleging manipulation of two other benchmark interest rates, the Euroyen Tokyo Interbank Offered Rate (or Tibor) and the yen Libor. Daniels agreed completely with Buchwald’s analysis of antitrust injury, endorsing her controversial holding that collusive rate manipulation doesn’t amount to a horizontal antitrust conspiracy. That’s bad enough for plaintiffs who are hoping to revive Libor antitrust claims (which, of course, carry treble damages). But Daniels also rested his antitrust holding in part on the very 2nd Circuit case plaintiffs are relying upon to refute Buchwald. When a judge turns your own citation against you, that’s got to be discouraging. (I should note that Daniels kept alive class claims based on the Commodity Exchange Act, as did Buchwald in the U.S. dollar Libor litigation.)

First Amendment protects Internet search results: N.Y. judge

Alison Frankel
Mar 28, 2014 17:34 UTC

U.S. District Judge Jesse Furman of Manhattan grabbed the chance Thursday to set precedent on a question that has received surprisingly little attention in the courts: Does the First Amendment’s protection of free speech extend to the results of Internet searches? Furman was clearly captivated by the issue as an intellectual challenge, delving into the vigorous academic discussion of the First Amendment and Internet search even deeper than the two sides in the case, the Chinese search engine Baidu and the activists who sued the site for supposedly violating their civil rights by blocking their pro-democracy works from appearing in search results. In a supersmart opinion that Furman seems to have written to be widely read, the judge concluded that when search engines exercise editorial judgment – even if that judgment is just algorithms that determine how results will be listed – they are entitled to free speech protection.

That protection, he said, is quite broad in scope. “There is a strong argument to be made that the First Amendment fully immunizes search-engine results from most, if not all, kinds of civil liability and government regulation,” Furman wrote. “The central purpose of a search engine is to retrieve relevant information from the vast universe of data on the Internet and to organize it in a way that would be most helpful to the searcher. In doing so, search engines inevitably make editorial judgments about what information (or kinds of information) to include in the results and how and where to display that information (for example, on the first page of the search results or later).”

The judge said U.S. Supreme Court precedent on the First Amendment “all but compels” his conclusion. The plaintiffs in the Baidu case are New York residents accusing the search engine of suppressing their political speech at the behest of the Chinese government. Those allegations, Furman wrote, necessarily imply that Baidu is exercising editorial judgment. So the search engine, he said, is no different from a newspaper editor deciding what stories to run, a guidebook writer picking which events to highlight or Matt Drudge making judgments “about which stories to link and how prominently to feature them.” And though it might seem counterintuitive that the right of free speech would protect editorial judgments to squelch free speech, Furman said that’s the point of the First Amendment.

Shareholders beware: Federal judge OKs corporate arbitration clause

Alison Frankel
Mar 27, 2014 21:10 UTC

Complaining about mandatory arbitration clauses in consumer and employment contracts is like whining about the weather: an exercise in futility. Whatever slim hope remained for opponents of mandatory arbitration after the U.S. Supreme Court’s 2011 ruling in AT&T Mobility v. Concepcion was extinguished last year in the court’s decision in American Express v. Italian Colors, which said that arbitration clauses are valid even if they effectively preclude people from enforcing their statutory rights. After the Italian Colors ruling came down, I speculated that corporations would next take advantage of the Supreme Court’s enthusiasm for arbitration by enacting provisions to require shareholders to arbitrate their claims against the company or its directors.

Law professors James Cox of Duke and John Coates of Harvard told me that some intrepid business was bound to attempt to impose arbitration on its shareholders, either in the charter of a company first offering shares to the public or in a bylaw amendment for an already public company. The profs said that the Securities and Exchange Commission, which has historically opposed mandatory shareholder arbitration, might not be able to stop a corporation that chose to fight all the way to the Supreme Court. The biggest obstacle to requiring shareholders to give up the right to sue in court, Coates told me, would probably be the issue of providing adequate notice. Would courts agree that shareholders had consented not to sue simply by purchasing the stock of a corporation with a mandatory arbitration provision?

We now have an answer to that question from a federal judge in Boston – and it’s one that should embolden corporations considering shareholder arbitration clauses. On Thursday, U.S. District Judge Denise Casper refused to invalidate a mandatory shareholder arbitration clause in the bylaws of the notorious Commonwealth real estate investment trust. Casper said that under the principle of res judicata, she was bound by two previous opinions from a Maryland state court judge who found that the Commonwealth arbitration clause was valid. But even if she were ruling on the merits of the provision, Casper said, she would find that shareholders hadn’t shown mandatory arbitration to be unenforceable.

U.S. stays out of Argentina pari passu case at SCOTUS – for now

Alison Frankel
Mar 26, 2014 19:18 UTC

France, Brazil and Mexico told the U.S. Supreme Court this week that the 2nd Circuit Court of Appeals has endangered sovereign debt markets with its ruling last year against the Republic of Argentina. In amicus briefs supporting Argentina’s petition for Supreme Court review, the foreign sovereigns argue that the 2nd Circuit gravely misinterpreted the so-called “pari passu” (or equal footing) clause of Argentina’s sovereign debt contracts. By ruling that Argentina may not pay bondholders who exchanged defaulted bonds for restructured debt before it pays hedge fund creditors that refused to exchange their defaulted bonds, the amicus briefs argue, the 2nd Circuit has undermined international debt restructurings, permitting vulture investors to hold entire foreign economies hostage.

The United States made quite similar arguments, as you may recall, when Argentina’s pari passu case was before the 2nd Circuit. But there’s no filing from the Justice Department among the 10 new amicus briefs urging the Supreme Court to take Argentina’s appeal. Does that mean Argentina has lost its most influential friend in the U.S. court system?

It does not, but it does mean that the administration is waiting for an invitation from the Supreme Court justices before it takes a position in the Argentina pari passu case. And there’s at least some chance the invitation will never come.

Strine: Stop shareholder activism from hurting American investors

Alison Frankel
Mar 25, 2014 19:32 UTC

This country’s most important arbiter of corporate law – Chief Justice Leo Strine of the Delaware Supreme Court – believes that shareholder democracy has run amok. In a startling new essay for the Columbia Law Review, “Can We Do Better by Ordinary Investors?” Strine outlines the deleterious long-term effects of subjecting corporate decision-makers to shareholder votes dominated by short-term investors. These ill consequences range, according to Strine, from the outright dollars corporations must spend to educate shareholders about everything they’re entitled to vote on all the way to excessive risk-taking and regulatory corner-cutting by executives and directors worried about delivering quick returns lest they be ousted by shareholders. Strine is deeply worried about a divergence of interests between money managers, who wield the power of shareholder votes, and ordinary investors in their funds, who are typically saving for retirement or their kids’ education. He’s convinced that the entire American economy will suffer unless short-term investors are reined in.

Strine’s diagnosis is interesting enough, though he’s previously written about what he considers to be the cancer of short-term investing. In the new essay, though, he also suggests a cure: eight actual suggestions to restore power to corporate boards and long-term investors (plus a pie-in-the-sky fantasy about changing the U.S. tax code to encourage shareholders to take a long view of their investments). Strine, who calls himself “someone who embraces the incrementalist, pragmatic, liberal tradition of addressing the world as it actually is,” argues that his proposals do not roll back shareholders’ hard-won rights to a voice in corporate affairs. Instead, he says, he’s “trying to create a system for use of those rights that is more beneficial to the creation of durable wealth for them and for society as a whole.”

The proposals make Strine’s paper indispensable reading if you run a corporation or advise corporate decision-makers. Even if you’re put off by his somewhat tedious rhetorical device of styling the essay as a response to Harvard Law professor Lucien Bebchuk – who advocates relentlessly for expanding shareholders’ franchise and apparently plays Dungeons & Dragons – or by the 154 dense footnotes in Strine’s 54-page article, you should take a look at his suggestions, which begin on page 29. Strine has done more thinking, reading and writing about the real-world consequences of shareholder power than anyone I can think of. He spent 16 years, after all, as a judge in Delaware Chancery Court, three of them as chancellor, before ascending to the Supreme Court this year. And based on those 154 footnotes, Strine seems to have devoted most of his time off of the bench to reading academic papers on corporate governance and shareholder rights. (Or, at least, whatever he could spare from keeping abreast of pop culture.)

Fannie, Freddie investors: Treasury plotted to nationalize shares

Alison Frankel
Mar 24, 2014 20:32 UTC

Some very sophisticated hedge funds are claiming to be victims of a secret Treasury Department scheme to nationalize the government-sponsored mortgage entities Fannie Mae and Freddie Mac. In a summary judgment brief filed Friday in federal court in Washington, D.C., Fairholme Funds and Perry Capital (along with other Fannie and Freddie preferred shareholders) said they’ve obtained a Treasury memo from December 2010 that proves the government intended to wipe out the value of their shares without telling them.

“The meaning of the Treasury memorandum is crystal clear: The government of the United States established a policy to destroy private shareholder value,” the brief said.

Fannie and Freddie shareholders, as you may recall, are suing the government in both U.S. district court and the Court of Federal Claims over an August 2012 amendment to the terms of Treasury’s agreement to invest taxpayer money in Fannie and Freddie. They contend that up until the amendment, preferred shareholders believed that if Fannie and Freddie returned to profitability under the conservatorship of the Federal Housing Finance Agency, private investors would share the spoils. The 2012 amendment, they assert, illegally cut off their interests by requiring Fannie and Freddie to pay Treasury a quarterly dividend that essentially delivers all of the housing entities’ net worth to the government.

Can federal judges base rulings on their own investigations?

Alison Frankel
Mar 21, 2014 21:19 UTC

Last year, when U.S. District Judge Sterling Johnson of Brooklyn was skeptical about the impact of a suit accusing a Subway restaurant of failing to provide access to customers in wheelchairs, he took a field trip. According to an opinion he wrote in March 2013, Johnson checked eight establishments that had been targeted in Americans with Disabilities Act suits by the same team of plaintiffs lawyers. The cases had all been resolved through settlements or default judgments, but Johnson was shocked to discover that the defendants hadn’t bothered to fix handicapped access problems. The judge’s fact-finding mission confirmed his worst suspicions that the lawyers who brought the cases were more concerned about ginning up fees for themselves than about the civil rights of the disabled.

Judge Johnson’s opinion denying any fees to lawyers he described as “parasites” was based on many considerations aside from his field trip to the targeted restaurants. But when the 2nd Circuit Court of Appeals reviewed his opinion, Johnson’s judicial expedition was all that mattered. In a much-discussed summary order on March 11, Chief Judge Robert Katzmann, Judge Robert Sack and U.S. District Judge Jed Rakoff (sitting by designation) held that Johnson erred when he drew conclusions from his own investigation. The 2nd Circuit said that according to the rules of evidence in federal court, judges are permitted only to consider indisputable facts from unquestionable sources. Judge Johnson hadn’t permitted the restaurants he visited nor the plaintiffs’ lawyers in the case to contest or explain what the judge witnessed. The appeals court judges said that under those circumstances, they couldn’t be sure that the restaurants’ conditions were beyond dispute.

The clear message from the 2nd Circuit was that Judge Johnson should not have permitted his own investigation to affect his decision. That certainly seems like a reasonable conclusion. In our adversary system, judges are supposed to preside over investigation by opposing parties, not to conduct their own independent fact-finding outside of the courtroom. But in a decision this week, Judge Richard Posner of the 7th Circuit Court of Appeals has done exactly what the 2nd Circuit seems to have frowned upon in its ruling on Judge Johnson’s restaurant visits.

  •