On Friday, an entrepreneur named Reuben Metcalfe posted a Medium essay entitled "You Have a Right to Object to the Equifax Settlement." Metcalfe offered a quick summary of the controversial proposed settlement, which would resolve claims by nearly 150 million Americans whose data was compromised in a 2017 breach at Equifax, arguing that for most class members, the deal is a dud. Breach victims who meet the settlement’s requirements for a payout from a much-publicized $32 million cash fund will wind up with less than $5, Metcalfe said. And those who opt for credit monitoring services will receive that service from Experian – which has itself experienced a major data breach. It’s no wonder, Metcalfe said, that Equifax shares are up more than 40% this year.
If you’ve ever wondered about the outer limits of the Anti-Injunction Act, then I’ve got quite a story for you today, courtesy of a new opinion from the 6th U.S. Circuit Court of Appeals in Gaetano v. U.S. (2019 WL 5778334).
O’Melveny & Myers and its lawyers at Gibson Dunn & Crutcher got a big win last week from U.S. District Judge Christina Snyder of Los Angeles in a case involving O’Melveny’s onetime client Aletheia. A bankruptcy trustee for Aletheia, an investment manager once entrusted with more than $2 billion in assets, had brought malpractice and breach of duty claims against O’Melveny, asserting that the law firm failed Aletheia by simultaneously representing the company and its CEO in litigation alleging misconduct by the CEO. In August, an arbitrator rejected the Aletheia trustee’s claims. Judge Snyder’s painstaking and methodical Nov. 1 opinion (O’Melveny defeats conflict allegations in trial court; trustee for ex-client vows appeal) confirmed the arbitrator’s decision, concluding that the trustee’s lawyers at Brutzkus Gubner provided her with no justification to vacate the arbitrator’s award.
For securities litigators and deal lawyers, the consequences of two related appeals at the 7th U.S. Circuit Court of Appeals, both stemming from shareholder litigation over Akorn’s since-aborted merger with Fresenius Kabi AG, could be huge. The appeals court could provide weapons for federal judges and objecting shareholders who are skeptical about the shareholder class actions filed in the wake of M&A announcements. Or the 7th Circuit could allow plaintiffs' lawyers in M&A shareholder suits to continue to capitalize on a strategy that allows them to obtain fees without being subject to judges’ authority. It’s no exaggeration to say that the topography of M&A shareholder litigation may change dramatically after the 7th Circuit rules in the Akorn cases.
The Commodity Futures Trading Commission’s attempt to resolve a long-running market manipulation case against Kraft Foods and Mondelez has been a giant headache for the agency: public bickering among CFTC commissioners, a threat of criminal contempt of court sanctions, a mandamus proceeding and, late last month, the dissolution of the CFTC’s $16 million deal with Kraft.
Arguments are firming up in Blue Apron v. Sciabacucchi, a landmark Delaware Supreme Court case that will determine whether corporations can require shareholders to sue in federal court, rather than state court, over alleged violations of the Securities Act of 1933. I told you last month about the opening brief by three companies whose forum selection clauses were deemed invalid by Vice-Chancellor Travis Laster in 2018’s Sciabacucchi v. Salzberg (2018 WL 6719718). Those corporations – Blue Apron, Roku and Stitch Fix – have since been joined by amici from the U.S. Chamber of Commerce and eight other companies that included Securities Act forum selection provisions in their charters or bylaws.
In a newly filed brief at the 7th U.S. Circuit Court of Appeals, shareholders' lawyers contend that trial judges have no inherent power to oversee the private fees that plaintiffs' counsel receive from defendants in exchange for dropping M&A class actions.
Last June, when the 9th U.S. Circuit Court of Appeals revived (926 F.3d 1146) Noah Duguid’s Telephone Consumer Protection Act class action against Facebook, the appeals court made two important determinations. First, it concluded that a 2014 amendment carving out government debt collection calls from liability was unconstitutional under the First Amendment, though it agreed with the 4th Circuit in a previous case, AAPC v. FCC (923 F.3d 159) that the offending provision can be severed from the rest of the law. Second, the 9th Circuit confirmed its own 2018 precedent from Marks v. Crunch San Diego (904 F.3d 1014) that a defendant can be liable under the TCPA not just if it uses an automated system to dial randomly generated numbers but also if it has an automated system that dials stored numbers.
In August, I told you about an extraordinarily unusual recommendation by three Oracle board members who essentially gave a green light to plaintiffs' lawyers to pursue billion-dollar breach-of-duty claims against their colleagues on the Oracle board. Now those same directors – as well as Oracle chair Larry Ellison and CEO Safra Catz – are being accused by shareholders of trying to cover up crucial discovery.
The 6th U.S. Circuit Court of Appeals ruled Thursday that two Ohio counties can proceed in a landmark bellwether trial accusing opioid manufacturers, distributors and sellers of sparking a drug abuse epidemic that the counties have spent billions of dollars to combat. Judges Alan Norris, Eugene Siler and Karen Moore denied a mandamus petition by Ohio Attorney General Dave Yost, who had asked the 6th Circuit to enjoin the Oct. 21 trial to protect the state’s sovereign power to bring claims on behalf of Ohio residents.