Alison Frankel

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.

New SCOTUS briefs: 2nd Circuit didn’t change insider trading law in Newman case

By Alison Frankel
August 27, 2015

(Reuters) – The best argument Todd Newman and Anthony Chiasson made this week in separate briefs opposing the Justice Department’s petition for U.S. Supreme Court review of a decision by the 2nd U.S. Circuit Court of Appeals that overturned their insider trading convictions is that even if the justices sided with the government, the outcome of the case wouldn’t change.

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.

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.

SCOTUS foreign antitrust cert denials show different tests for civil, criminal cases

By Alison Frankel
June 15, 2015

(Reuters) – The U.S. Supreme Court on Monday refused to grant review of two antitrust cases based on the same basic facts about an illegal price-fixing cartel among foreign manufacturers of liquid-crystal display screens. In one case, AU Optronics and two employees had asked the justices to reverse a 2014 ruling by the 9th U.S. Circuit Court of Appeals that affirmed their conviction for violating U.S. antitrust laws. In the other, Motorola Mobility appealed the 7th Circuit’s holding that it cannot claim private damages from cartel members on behalf of foreign Motorola subsidiaries that spent about $5 billion on overpriced LCD screens installed in devices sold in the United States.

Class actions face crucible in next Supreme Court term

By Alison Frankel
June 9, 2015

(Reuters) – By this time next year, class action lawyers could be looking back with nostalgia and regret at the good old days when they only had to worry about Wal-Mart v. Dukes and Comcast v. Behrend.