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White Collar Crime

Residual Class Action Awards: Cy Pres - Podcast

Litigation Practice Group Podcast
Brian T. Fitzpatrick, Theodore H. Frank March 21, 2014

gavel money

Cy pres (from the French cy pres comme —“as near as possible”) originated in the trust context, but has more recently been applied to class action litigation, as courts try to determine what to do with sometimes significant amounts of settlement funds remaining after all identified plaintiff awards have been made.  In recent decades, courts have agreed to award such remaining funds to third party recipients who, while not parties to the underlying suits, are deemed worthy by the court.  Sometimes, the courts have selected these third party recipients based on recommendations from the attorneys representing the plaintiffs.  What are the legal underpinnings for such awards to entities or people not party to the underlying case?  What are the policy considerations in making or prohibiting such awards?  These and other questions were discussed by our experts.

Featuring:

  • Prof. Brian T. Fitzpatrick, Vanderbilt University Law School
  • Mr. Theodore H. Frank, Founder and President, Center for Class Action Fairness and Adjunct Fellow, Manhattan Institute Center for Legal Policy

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Supreme Court To Rule on Fraud on the Market: Halliburton v. Erica P. John Fund - Podcast

Litigation and Corporations, Securities & Antitrust Practice Groups Podcast
Jeffrey B. Wall March 18, 2014

Supreme Court

On March 5, 2014, the Supreme Court heard oral argument in Halliburton v. Erica P. John Fund, and our expert attended and then reported on the argument. Will the Court continue to recognize the fraud on the market theory? How much reliance is required on the part of the plaintiffs? Will the Court allow introduction of evidence that a defendant’s statements did not affect the price of its stock to rebut a presumption of reliance?

Featuring:

  • Jeffrey B. Wall, Special Counsel, Sullivan & Cromwell LLP

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Fraud on the Market? - Oral Argument Preview of Halliburton v. Erica P. John Fund - Podcast

Litigation and Corporations, Securities & Antitrust Practice Groups Podcast
Steven G. Bradbury, Michael Klausner March 18, 2014

Supreme Court building

Shareholders of Halliburton filed a class action lawsuit arguing that Halliburton falsified its financial statements and misrepresented projected earnings, invoking a “fraud on the market” theory to demonstrate class reliance on Halliburton’s statements. The “fraud on the market” theory assumes that investors have relied on any material misstatements when they purchase a security. The federal district court certified the class and did not allow Halliburton to introduce evidence that the statements did not affect its stock prices. The U.S. Court of Appeals for the Fifth Circuit affirmed. Will the Supreme Court continue to recognize the fraud on the market theory? If so, will the Court allow introduction of evidence that a defendant’s statements did not affect the price of its stock to rebut the presumption of reliance?

Featuring:

  • Steven G. Bradbury, Partner, Dechert LLP, and former head of the Office of Legal Counsel, U.S. Department of Justice
  • Prof. Michael Klausner, Nancy and Charles Munger Professor of Business and Professor of Law, Stanford Law School

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The Responsible Corporate Officer Doctrine and Regulatory Crimes - Podcast

Administrative Law & Regulation Practice Group Podcast
Kathleen M. Boozang, Sheila A. Millar, Dean A. Reuter January 09, 2014

The Responsible Corporate Officer Doctrine and Regulatory Crimes - PodcastOn July 10, 2012, the Consumer Product Safety Commission (CPSC) determined that Buckyballs and Buckycubes, executive office desk toys made for adults, were defective. The CPSC pressured retailers to stop selling these products, and on July 25, 2012, the CPSC’s staff brought an administrative action against Maxfield and Oberton Holdings LLC, the company that produced Buckyballs and Buckycubes, initiating a proceeding to order the company to stop selling all of its products and to conduct a total recall of all of its products already sold. On February 11, 2013, the CPSC amended its complaint to add Craig Zucker, the former General Manager of Maxfield and Oberton Holdings LLC, as a respondent, to hold him personally liable to conduct a CPSC-estimated $57 million recall of Buckyballs and Buckycubes. On November 12, 2013, Mr. Zucker fought back, claiming that the CPSC overreached by bringing an administrative remedial action against Maxfield and Oberton, a limited liability company, as well as him personally. Mr. Zucker challenges the CPSC’s personal jurisdiction over him, claiming he is neither a manufacturer nor a distributor of Buckyballs or Buckycubes and that, instead, the CPSC is exercising undelegated adjudicative authority over individual corporate officers. The CPSC justifies its authority under the Park doctrine, after United States v. Park, 421 U.S. 658 (1975), which has been applied to hold responsible corporate officers personally liable for criminal violations by the companies they oversee. The CPSC has made no findings of legal violations by Craig Zucker, nor has it sought to impose a criminal sentence, fine, or other monetary liability or penalty against him, instead using the responsible corporate officer doctrine for purposes of having him pay for a product recall. Here, the CPSC has asserted the responsible corporate officer doctrine without a predicate violation of the law by a corporate entity. Is the CPSC’s asserted authority justified? More broadly, the panelists sought to discuss the role and importance of the responsible corporate officer doctrine and whether the courts will recognize an expanding application of the responsible corporate officer doctrine in the future.

Featuring:

  • Prof. Kathleen M. Boozang, Associate Dean and Professor of Law, Seton Hall University School of Law
  • Sheila A. Millar, Partner, Keller & Heckman LLP
  • Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society

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Is American Justice Blind, Or Blind To A "Prosecutocracy"? - Podcast

Criminal Law & Procedure Practice Group Podcast
Conrad Lord Black, William G. Otis, Ellen S. Podgor, Dean A. Reuter April 04, 2013

Is American Justice Blind, Or Blind To A Federal convict Conrad Lord Black argued at National Review Online last fall in "Blind Justice" that America's system of broad prosecutorial discretion routinely undermines defendants’ constitutional rights -- largely through a criminal justice system that's designed in acquiescence to this discretion by those who fear being seen as "soft on crime.”  The system's defenders respond that criminal defendants enjoy numerous and generous constitutional protections (some at the expense of a textual constitutional reading), and that prosecutorial discretion -- though perhaps subject to discrete, if infamous, abuse -- is overwhelmingly used properly against the legitimately guilty.  With the rise of debates over the role of the federal government in criminal law, these divergent views will be debated thoughtfully by our expert panelists on this previously recorded conference call.

Featuring:

  • Conrad Lord Black, Financier, Historian, and Commentator
  • Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center
  • Prof. Ellen S. Podgor, Gary R. Trombley Family White-Collar Crime Research Professor and Professor of Law, Stetson University College of Law
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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