Alison Frankel

The mind-bending international comity debate in RJR RICO case at SCOTUS

By Alison Frankel
February 9, 2016

(Reuters) – The irony is running thick in a debate at the U.S. Supreme Court between the Justice Department and 26 European governments suing the tobacco company RJR Nabisco under the Racketeer Influenced and Corrupt Organizations Act. The issue is international comity and the reach of U.S. courts – but the two sides haven’t taken the positions you might expect.

Want to get your case to the Supreme Court? New study tells you which lawyers to hire.

By Alison Frankel
January 22, 2016

(Reuters) – Past performance, as they tell us in mutual fund advertisements, does not guarantee future results. But a new study of 93,000 certiorari petitions filed at the U.S. Supreme Court between the court’s 2001 and 2015 terms is more evidence that a small group of Supreme Court practitioners enjoy outsized success in persuading the justices to accept cases from their clients.

Why class action bar’s SCOTUS win in Campbell-Ewald could be tenuous

By Alison Frankel
January 20, 2016

(Reuters) – A majority of the U.S. Supreme Court showed Wednesday that it knows exactly what defendants have been up to in class actions involving relatively small damages for individual class members. In the court’s opinion in Campbell-Ewald Company v. Gomez, five justices said defendants can’t squelch class actions by offering full judgment to named plaintiffs and asserting the case is therefore moot, even if the named plaintiff rejects the offer.

The Supreme Court’s next big class action controversy: ascertainability

By Alison Frankel
January 4, 2016

(Reuters) – A confession: When I speculated last October that the hot-button issue of class action ascertainability – the process of figuring out just who is a member of a plaintiffs’ class – could arise at the U.S. Supreme Court in Tyson Foods v. Bouaphakeo, I was wrong. The Tyson case, as you will recall, was at its heart a dispute over the certification of a class of meat-processing plant workers who ended up winning a $6 million wage-and-hour judgment against Tyson. Tyson’s lawyers at Sidley & Austin wanted to inflate the case into an inquiry over the constitutionality of certifying classes that may contain uninjured class members. Tyson’s final Supreme Court brief insisted that at the very least, trial courts should require class action lawyers to offer a mechanism for culling plaintiffs who haven’t been injured, which is exactly what ascertainability literalists demand.

When class money doesn’t go to class members: new calls for SCOTUS review

By Alison Frankel
December 14, 2015

(Reuters) – A couple of years ago, Chief Justice John Roberts appended an unusual statement to the U.S. Supreme Court’s decision not to review a privacy class action settlement in which all of the class recovery (except for legal fees) was delivered to a new online privacy education group Facebook was to help oversee. The chief justice said the Facebook settlement challenge was too tightly focused on the particulars of the case to warrant Supreme Court review but he basically invited future cert petitions raising the issue of when, if ever, class action settlements can deliver money to charities under the doctrine of cy pres, or “as near as possible.”

If past is prelude, SCOTUS will just tinker in this term’s class action cases

By Alison Frankel
November 18, 2015

(Reuters) – To celebrate the 10th anniversary of Chief Justice John Roberts’ inauguration, the Akron Law Review has published a collection of papers on the impact of the Roberts Court’s decisions on class actions. The articles, a mix of studies by law professors and class action practitioners, were all written before the U.S. Supreme Court heard arguments this fall in a trio of cases posing some fundamental questions about class actions, such as whether Congress can legislate constitutional standing and whether classes can be certified if they contain members who have not been injured.

Labor union dissenters influence political speech more than shareholders: law profs to SCOTUS

By Alison Frankel
November 9, 2015

(Reuters) – Scathing commentary about the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission has tended to focus on the court’s refusal to restrict corporate political spending. As you know, the justices struck down campaign finance reforms as an unconstitutional violation of corporations’ free speech rights, triggering an avalanche of predictions that corporate donors would wield outsized political influence. The other free speech beneficiaries of Citizens United – labor unions also subject to the invalidated campaign finance restrictions – haven’t been the subject of nearly as much fear and loathing.

In SCOTUS petition, Apple claims 2nd Circuit used wrong antitrust standard

By Alison Frankel
October 29, 2015

(Reuters) – The e-books antitrust scheme alleged by the Justice Department against Apple and five major book publishers was what’s known in antitrust lingo as a hub-and-spoke conspiracy, in which a central player supposedly enables industry competitors to fix their prices. Now Apple is asking the U.S. Supreme Court to clarify what standard of review should apply to the conduct of that central player: Is its alleged participation a per se violation of antitrust law, as price-fixing amongst competitors is deemed to be? Or should courts be required to evaluate the enabler’s actions under the more forgiving “rule of reason” standard, which takes into account the potentially pre-consumer consequences of restraints on trade?

In first of three big class action cases at SCOTUS, worrisome hints for plaintiffs

By Alison Frankel
October 16, 2015

(Reuters) – If you were looking for policy pronouncements from the U.S. Supreme Court about the proper use of the class action device, you were probably disappointed Wednesday after oral arguments in Campbell-Ewald v. Gomez, the first of the three big class action cases the justices will hear this term. In fact, when Gregory Garre of Latham & Watkins – who represents a marketing company that tried to end a Telephone Consumer Protection Act class action by offering the named plaintiff all of the statutory damages he was entitled to – broached a broad attack on class actions for benefiting only plaintiffs’ lawyers, Justice Elena Kagan shut him down.

Dow wields SCOTUS amicus brief to erase $1.1 billion antitrust judgment

By Alison Frankel
October 2, 2015

(Reuters) – Has Dow Chemical inserted itself into the U.S. Supreme Court’s review of the Tyson Foods wage-and-hour class action as part of a sophisticated strategy to wipe out a $1.1 billion antitrust judgment against Dow? That’s the accusation in an amicus brief filed this week in the Tyson case by urethanes purchasers who beat Dow in a 2013 trial in Kansas federal court.