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Litigation

Fairness in Class Litigation Act

Litigation Practice Group Teleforum Friday, March 31, 02:00 PMFederalist Society Teleforum Conference Call

On Saturday, March 11 the House passed the Fairness in Class Litigation Act by a vote of 220-201. The stated purpose of the Act is to “(1) assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs; (2) diminish abuses in class action and mass tort litigation; and (3)  restore the intent of the framers…by ensuring Federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles” (H.R.985, 2017).

The Bill amends the federal judicial code’s standards for the certification of class action. For example, the bill requires that proposed class members to show that they suffered the same type and degree of injury. The bill also limits the amount and timing of attorney’s fees in a class action. Attorney’s cannot be paid more than the class members, and they must be paid after the class members receive payment.

Andrew Grossman Partner at Baker & Hostetler LLP and Adjunct Scholar at the Cato Institute will join Professor Howard M. Erichson of Fordham to discuss the legislation as deliberations begin in the Senate Judiciary Committee.

Featuring:

  • Professor Howard M. Erichson, Professor of Law, Fordham University School of Law
  • Andrew Grossman, Partner, Baker & Hostetler LLP, Adjunct Scholar, the Cato Institute

Courthouse Steps: Microsoft v. Baker - Podcast

Litigation Practice Group Podcast
Cory L. Andrews March 23, 2017

On March 21, 2017, the Supreme Court will hear oral argument in Microsoft v. Baker. The case involves a class action lawsuit against the Microsoft Company by plaintiffs who alleged that during games on their Xbox video game console, the game disc would come loose and scratch the internal components of the device, permanently damaging the Xbox. Since only .4% of Xbox consoles experienced this issue, the district court determined that "a class action suit could not be certified and individuals in the suit would have to come forward on their own." The named plaintiffs voluntarily dismissed their claims with prejudice. The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit where the court overturned the lower court's decision and held that the district court misapplied the law and abused its discretion in removing the class action allegations.

As Microsoft v. Baker comes before the Supreme Court, the major question is whether or not appellate courts have the jurisdiction to review a class action suit after the plaintiffs voluntarily dismiss their claims with prejudice.

Featuring:

  • Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation

Freddie & Fannie Shareholder Litigation Update - Podcast

Litigation Practice Group Podcast
Jason A. Levine, John Carney March 02, 2017

During the 2008 financial crisis, Congress provided Fannie Mae and Freddie Mac with billions of dollars in emergency funds to keep them afloat, supplemented by the investments of private investors who bet that these entities would return to profitability. In 2012, just as Fannie and Freddie were indeed becoming profitable again, the Government instituted a "net worth sweep" that required them to remit to the government nearly all of their profits every quarter. Fannie and Freddie have paid the government over $246 billion so far. In the process, the stock was rendered virtually worthless. Investors filed myriad lawsuits as the net worth sweep came into effect. After four years of litigation and an initial dismissal by the district court, the D.C. Circuit has now largely affirmed but also sent key contract-based claims for monetary relief back to the district court for further review. This Teleforum discusses this historic litigation, its implications for the housing market and the proper role of the Government, and the investors' prospects for success on their claims.

Featuring:

  • John Carney, Editor, Breitbart News
  • Jason A. Levine, Litigation Partner, Vinson & Elkins LLP 

In Re: Walgreen Co. Stockholder Litigation Update - Podcast

Litigation Practice Group Podcast
Theodore H. Frank February 24, 2017

According to the Competitive Enterprise Institute, over 97% of mergers and acquisitions result in "strike suits," litigation seeking to enjoin a merger that often quickly settles for attorneys' fees and supplemental disclosures to shareholders. In In Re: Walgreen Co. Stockholder Litigation, 832 F.3d 718, a recent case over such a settlement, Judge Richard Posner called the practice a "racket," and the Seventh Circuit rejected the lawsuit’s claims. Meanwhile, Delaware and New York courts have come out on opposite sides of the issue.

Ted Frank of the Competitive Enterprise Institute, who successfully argued Walgreen and has multiple appeals on the subject pending in other jurisdictions, discussed developments in the area over the last year and answer questions.

Featuring:

  • Theodore H. Frank, Senior Attorney & Director, Center for Class Action Fairness (CCAF), CEI

Criminal Regulatory Statutes: Is “Deliberate Indifference” Sufficient Mens Rea For A “Knowing" Violation? Case Update: Farha v. United States - Podcast

Criminal Law & Procedure Practice Group Podcast
Paul D. Kamenar, Jeff Lamken, John G. Malcolm February 15, 2017

Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate.  What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud.  

On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires.  The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case. 

This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.

Featuring:

  • Paul Kamenar, Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S.
  • Jeff Lamken, Partner, MoloLamken
  • ModeratorJohn G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation