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Alison Frankel

Florida appeals court stays AG’s opioids suit to weigh disqualification of trial judge

17 May 2019

But now some of the defendants in the Florida attorney general’s suit are going after a judge for his comments about them. This week, Allergan, Actavis, Teva, Cephalon, Endo and Mallinckrodt filed a petition asking a state appeals court to disqualify Pasco County Circuit Court Judge Declan Mansfield, arguing that the judge’s comments at a hearing on defendants’ dismissal motion suggest that he is biased against them and cannot give defendants a fair trial.

Purdue finally gets a judge to toss state AG’s opioids case. Does it matter?

16 May 2019

Purdue Pharma could not have asked for more than it got from Judge James Hill of Mandan, North Dakota, in a ruling this week to toss fraud and nuisance and fraud claims by state Attorney General Wayne Stenehjem.

State AGs protest ALI consumer contract restatement ahead of May 22 vote

15 May 2019

Twenty-three state attorneys general sent a letter Tuesday to members of the American Law Institute, criticizing a draft restatement of the law of consumer contracts that is set for a final vote next week at ALI’s annual meeting. The AGs, as I'll explain, argue that the ALI's proposed rules will effectively allow businesses to impose contracts on customers without consumer consent. Their letter – as well as an odd copyright kerfuffle between ALI and a Georgetown law professor leading opposition to the restatement – is the latest controversy over a project that has somehow managed to displease both consumer and business groups.

More antitrust class actions on the way after Supreme Court’s Apple ruling?

14 May 2019

In the U.S. Supreme Court’s decision Monday in Apple v. Pepper (2019 WL 2078087) – an antitrust class action in which consumers claim Apple is abusing its monopoly power in the market for iPhone apps – Justice Brett Kavanaugh wrote that the court was merely applying its longstanding antitrust precedent from Illinois Brick v. State of Illinois (97 S.Ct. 2061).

Public Citizen files test case over copyright liability for embedded images

11 May 2019

In 2007, a commenter on a knife aficionados’ website called Blade Forums posted an image of a photograph of a redwood tree burl. Readers were discussing knife handles made from these tree trunk outgrowths, and the commenter picked up the image of a burl from the website of a well-known photographer, QT Luong, to show other Blade Forums members what they look like. The embedded image was posted as a deep link, meaning that Blade Forums' readers could see Luong’s photograph, but only via Luong’s website. The photo was not hosted on Blade Forums' server.

Asarco tries to push retirees into 'unicorn' defendant class action

09 May 2019

Have you ever heard of a defendant class action – a case in which a plaintiff uses the federal class action rules to agglomerate defendants? Judges and scholars have come up with all kinds of descriptions for this seldom-seen device. In a ruling last month (2019 WL 1848525) the 4th U.S. Circuit Court of Appeals called defendant class actions “among the rarest of proceedings,” quoting a 2002 7th Circuit ruling in which Judge Richard Posner dubbed the cases “rare birds” and cited an academic paper describing them as “rare as unicorns.”

Barnes & Noble is latest company stuck with tab for suing former officer

08 May 2019

The indignation practically sputters from a brief Barnes & Noble filed in February, opposing a motion by ousted CEO Demos Parneros for the company to pay half of his legal bills in litigation between them under the indemnification provisions in his employment contract.

Michael Avenatti and the weirdest-ever lead counsel fight

07 May 2019

In 2017, before he became a household name, Michael Avenatti won a jury verdict of nearly a half-billion dollars for a class of California medical centers. Avenatti, at the time a name partner of Eagan Avenatti, was the court-appointed lead counsel for the class, which claimed Kimberly-Clark and Halyard Health were fraudulently marketing surgical gowns that failed to block communicable diseases.

Uber, Beyond Meat rely on controversial clause to steer potential suits over IPOs

02 May 2019

Two of the most hotly anticipated IPOs of the year are expected to take place later this month, when the ride-hailing company Uber and the vegan burger company Beyond Meat offer shares to the public. Both companies are counting on a controversial - and, quite possibly, invalid - tactic to choose the court in which their future shareholders can sue if the IPOs flop.

Consumer arbitration is on the rise but numbers are still puny

30 Apr 2019

The American Arbitration Association resolved 20 percent more consumer cases in the first quarter of 2019 than in the same timeframe last year. The number of resolved cases, according to analysis of AAA’s data by the legal tech startup Radvocate, was down a bit from its peak in the second quarter of 2018, but if you look back to AAA’s numbers from the first quarter of 2016, you can see a clear trend: More consumers are resolving disputes through arbitration claims, just as arbitration advocates assured us they would in years of litigation entrenching corporations’ right to impose mandatory arbitration on customers.

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