Alison Frankel

No one wins when plaintiffs lawyers fight over fees

By Alison Frankel
July 16, 2015

The multidistrict litigation accusing Bayer of tainting the U.S. long-grain rice crop with its genetically modified product should be a shining example of how consolidated litigation can deliver justice to thousands of injured people. In 2011, after losing several bellwether trials, Bayer agreed to pay as much as $750 million to about 11,000 rice farmers in Texas, Louisiana, Missouri, Arkansas and Mississippi. In 2012, the judge overseeing the consolidated federal-court litigation against Bayer, U.S District Judge Catherine Perry of St. Louis, said the outcome entitled the lawyers who led the case to as much as $72 million from a common benefit fund. That award was more, as a percentage, than lead lawyers usually receive for work that supposedly benefits all of the plaintiffs in consolidated litigation, but the judge said the award was justified by the time lead counsel sank into the case and the excellent results they obtained.

Media, tech companies ask SCOTUS to restrict class actions in Spokeo

By Alison Frankel
July 15, 2015

It would have been shocking if big business hadn’t turned out in force to back the search engine Spokeo at the U.S. Supreme Court, in a case with potentially huge consequences for class action defendants. And since the business lobby isn’t one to ignore an opportunity like Spokeo, the questions last week at the filing deadline were how many amicus briefs would come in and whether new industries would add to the chorus urging the justices to restrict class actions claiming statutory damages for violations of federal laws. The answers: More than three dozen companies, trade groups and state attorneys general spoke up for Spokeo in 17 amicus briefs, including filings from media, banking and retail businesses that hadn’t previously been involved in the case. It looks like corporate defendants do indeed regard Spokeo as a potential blockbuster.

Law prof objects to Dela. M&A settlement, could be first of many

By Alison Frankel
July 14, 2015

(Reuters) – If Fordham law professor Sean Griffith wanted his newly-filed objection to the settlement of shareholder litigation over Thoma Bravo’s $3.6 billion acquisition of Riverbed Technologies to provoke debate on the dubious benefit to shareholders from disclosure-only settlements of M&A class actions, his timing could not have been better.

The beginning of the end of ‘deal tax’ litigation boom?

By Alison Frankel
July 10, 2015

(Reuters) – If it had just been Vice Chancellor Travis Laster of Delaware Chancery Court sounding off about the blight of so-called deal tax M&A suits, the Delaware bar might have been able to chalk up this week’s developments to the judge’s occasional tendency to rile the complacent. But it isn’t just Laster. Something is afoot in Delaware Chancery Court.

Turtles move to block $210 million Sirius deal with record labels

By Alison Frankel
July 9, 2015

(Reuters) – On the night of June 15, Harvey Geller and Henry Gradstein of Gradstein & Marzano had dinner in New York City with lawyers representing five major record labels and the Recording Industry Association of America. Based on a declaration Gradstein filed Wednesday, it didn’t go well.

In 9th Circ. insider trading case, Rakoff rejects broad read of 2nd Circ. precedent

By Alison Frankel
July 8, 2015

(Reuters) – Running one of the busiest dockets in Manhattan federal court, sitting from time to time at the 2nd U.S. Circuit Court of Appeals and stirring up controversy in speeches and essays is apparently not enough to keep U.S. District Judge Jed Rakoff busy. On Monday, the 9th Circuit issued an important interpretation of insider trading law in its opinion in U.S. v. Salman. The author of this ruling was none other than Judge Rakoff, who sat on the 9th Circuit by designation when the appeal was argued last month in San Francisco.

Sony data breach case: boundaries on liability becoming clearer

By Alison Frankel
July 2, 2015

At the beginning of 2015, I asked whether defendants should start reassessing their risk in data breach class actions. I pointed out that plaintiffs had learned from a string of dismissals in which federal judges said they didn’t have constitutional standing to sue under the U.S. Supreme Court’s 2013 decision in Clapper v. Amnesty International. Consumers suing Target, for instance, managed to keep their case alive by claiming they’d suffered the actual harm of unlawful charges on their accounts or restricted access to their funds. Similarly, financial institutions staved off the dismissal of their class action against Target with assertions based on their costs to replace customers’ compromised cards.

En banc 2nd Circuit to clarify when computer seizures are unconstitutional

By Alison Frankel
July 1, 2015

(Reuters) – The 2nd U.S. Circuit Court of Appeals seems to be eager to decide when, if ever, the federal government has the right to retain and search computer records seized in one investigation but later found to be relevant in another.

SEC’s Aguilar, Gallagher split on policing advisers’ compliance

By Alison Frankel
June 30, 2015

In a June 18 statement explaining his dissent in two recent enforcement actions against chief compliance officers at investment advisers, Commissioner Daniel Gallagher of the Securities and Exchange Commission pointed out that for the vast majority of the 11,700 investment advisers registered with the SEC, in-house compliance officers are “the only line of defense” against securities law violations. The SEC is undermanned and there’s no self-regulating organization for investment advisers, unlike broker-dealers, the commissioner said. So it’s critically important, he said, for the SEC to encourage chief compliance officers to perform their duties with vigor. According to Gallagher, that means the agency should stop using the blunt instrument of enforcement actions and start think about revising its rules in order to protect compliance officers when other people at their firms do something wrong.

A new way for class action firms to combat serial objectors?

By Alison Frankel
June 29, 2015

In July 2014, the Chicago class action firm Anderson & Wanca moved for preliminary approval in Illinois state court of a $23 million settlement of allegations that Metropolitan Life Insurance violated the Telephone Consumer Privacy Act by sending out millions of unsolicited faxes. Five members of the class objected to the settlement. Two dropped protests on their own and the judge struck a third before granting final approval to the settlement in February 2015.