(Reuters) – Just about a year ago, the U.S. Supreme Court decided not to hear a case involving a class action against a couple of Midwestern banks that didn’t post both of the required notices on its ATM machines. The banks’ petition for certiorari raised the same question that had piqued the Supreme Court’s interest in the 2011 case First American Financial v. Edwards: Can Congress confer constitutional standing on otherwise uninjured consumers by giving them a private right of action? But the justices mysteriously dismissed First American on the last day of their term in 2012 and were unwilling to revisit the tough question of Congress and consumers’ right to sue in the ATM case, prompting me to ask in a column if the Supreme Court had lost its zeal to curb consumer class actions.
(Reuters) – On Monday, U.S. District Judge Jed Rakoff of Manhattan got up onto his well-worn soapbox to suggest that if Congress wants to protect U.S. markets from inside traders, lawmakers ought to specify when it is illegal to trade on confidential information.
This is getting to be an annual rite. The U.S. Supreme Court agrees to take a case that could significantly reshape the securities class action business. Defendants get their hopes up, loading the docket with amicus briefs calling on the justices to impose new restrictions on the cases. But ultimately the justices leave the status quo more or less intact, to the relief of shareholder lawyers across the land.
The 2nd U.S. Circuit Court of Appeals has set a briefing schedule for its consideration of the dismissal of antitrust claims against more than a dozen global banks that allegedly conspired to fix the benchmark London Interbank Offered Rate. The opening brief from a class of bond purchasers whose appeal was reinstated last week by the U.S. Supreme Court is due on March 9. The banks’ response is supposed to be filed a month later.
(Reuters) – A Reuters special report Monday pinpointed eight lawyers who made a whopping 20 percent of the oral arguments at the U.S. Supreme Court in the last decade. One of them, David Frederick of Kellogg Huber Hansen Todd Evans & Figel, frequently appears on behalf of plaintiffs in business cases, most recently in a 2013 securities case, Amgen v. Connecticut Retirement Plans. (Frederick would have argued for investors in Public Employees’ Retirement System of Mississippi v. IndyMac but the justices dismissed the case.) Paul Clement of Bancroft argued for a class of small businesses suing American Express in the 2013 case Amex v. Italian Colors.
Don’t get too excited about the news Monday that the U.S. Supreme Court has agreed to hear the appeal of bond investors whose antitrust claims against the global banks involved in the Libor-setting process were tossed last year.
Sometimes, the best way to understand the broad implications of a court’s decision isn’t to read the ruling itself but rather the dissent. That was certainly true a year ago, when Justice Antonin Scalia attacked the U.S. Supreme Court’s decision in Windsor v. U.S., which struck down federal prohibitions on same-sex marriage as an unconstitutional intrusion on the equal rights of gays and lesbians. The majority’s ruling was carefully constrained, but a furious Scalia predicted that the stirring language of Justice Anthony Kennedy’s opinion would reverberate more loudly in the lower courts than the actual holding. As we now know from decisions all over the country striking down restrictions on same-sex marriage, Scalia was right.
Let’s state the obvious: Big Business did not get what it wanted Monday from the U.S. Supreme Court, which refused in Halliburton v. Erica P. John Fund to overturn Basic v. Levinson, the 25-year-old precedent that permits shareholders to bring classwide claims of securities fraud.
Companies should not mislead consumers about their products. Some do anyway. Those companies should be held accountable for their deception, not only because they lied but also to deter other companies from lying.
The hedge fund NML Capital is going to have to execute some fancy footwork to maintain its argument that Argentina is plotting to evade a ruling by the 2nd U.S. Circuit Court of Appeals that prohibits the foreign sovereign from making payments to holders of its restructured debt before paying off hedge funds that refused to exchange defaulted bonds.