Alison Frankel

CFPB just told SCOTUS it's unconstitutional. What does that mean for its mission?

19 Sep 2019

On Tuesday, the Consumer Financial Protection Bureau joined the Justice Department in a brief asking the U.S. Supreme Court to consider whether the CFPB’s structure is unconstitutional. DOJ and the CFPB told the Supreme Court that they believe the appointment provision of the Consumer Financial Protection Act is unconstitutional because it says the bureau’s lone director cannot be removed from office without good cause. The law, according to DOJ and the CFPB, violates separation of powers doctrine by interfering with the president’s executive authority.

‘No tangible benefits’: N.Y. judge rejects Xerox shareholder class action deal

17 Sep 2019

New York State Supreme Court Justice Barry Ostrager of Manhattan is not afraid to stir things up. In April 2018, you may recall, the judge – previously a longtime litigation partner at Simpson Thacher & Bartlett – issued a preliminary injunction to block Xerox from allowing a shareholder vote on a proposed merger with Fuji, holding that the deal was hopelessly tainted by Xerox board members’ conflicts. Justice Ostrager’s decision was effectively a death knell for the Xerox management team that approved the Fuji deal. In a subsequent settlement with activist investor Darwin Deason and a proposed settlement with a class of shareholders, the company replaced four of its directors with new board members proposed by Deason and fellow activist Xerox investor Carl Icahn. Xerox also ditched the Fuji deal.

Opioid MDL judges OKs novel negotiating class as ‘likely to promote global settlement’

13 Sep 2019

For us class action geeks, Tuesday was a landmark day. U.S. District Judge Dan Polster of Cleveland certified a first-of-its-kind ‘negotiating class’ to promote global settlements with defendants in multidistrict litigation against opioid manufacturers, distributors and sellers.

FTC’s comprehensive study finds median consumer class action claims rate is 9%

11 Sep 2019

The Federal Trade Commission has just published a staff report on what it believes to be the most comprehensive study ever conducted on consumers’ response to class action settlements. Its marquee finding, after collating data on 149 consumer class actions from seven different claims administrators: The median claims rate in these cases is 9%. The weighted mean claims rate, which takes into account the number of class members who received settlement notifications, is 4%.

5th Circuit holds FHFA structure unconstitutional. Boost for Supreme Court challenge to CFPB?

10 Sep 2019

The en banc 5th U.S. Circuit Court of Appeals ruled (2019 WL 4233612) Friday that the structure of the Federal Housing Finance Agency is unconstitutional under separation of powers doctrine because the agency’s lone director is insufficiently accountable to the president.

Delaware asks Supreme Court to review its bipartisan judge-picking process

06 Sep 2019

The governor of Delaware filed a petition Wednesday at the U.S. Supreme Court, asking the justices to overturn a federal appellate ruling that Delaware's practice of balancing judicial appointments among Democrats and Republicans is a violation of the First Amendment of the U.S. Constitution.

As Ohio AG tries to shut down opioid bellwether trial, MDL leaders say he’s ‘outlier’

04 Sep 2019

Ohio Attorney General Dave Yost believes that the people of his state will be disadvantaged if two Ohio counties, Cuyahoga and Summit, go to trial next month in federal court in Cleveland with claims that opioid manufacturers, distributors and sellers contributed to a crisis of drug abuse.

Koch-founded charity asks for Supreme Court help to keep donor list secret

29 Aug 2019

The Americans for Prosperity Foundation, a libertarian nonprofit founded by Charles and David Koch, filed a petition this week at the U.S. Supreme Court, asking the justices to review a 2018 ruling (903 F.3d 1000) by the 9th U.S. Circuit Court of Appeals that would require Americans for Prosperity and other California-registered charitable foundations to disclose their major donors to the California Attorney General.

Opioid marketing and the First Amendment: Oklahoma judge rejects J&J defenses

28 Aug 2019

On Monday, as you’ve surely heard, Oklahoma state court judge Thad Balkman ruled after a months-long bench trial that Johnson & Johnson was responsible for stoking the state’s opioid abuse crisis. The judge determined that J&J’s “false and misleading” marketing of opioid products made the company liable under Oklahoma public nuisance law. He ordered J&J to pay $572 million to abate Oklahoma’s drug abuse crisis.

New Juul ruling is reminder: Companies can’t impose arbitration by stealth

27 Aug 2019

On Friday, U.S. District Judge William Orrick of San Francisco ruled (2019 WL 3997459) that Juul users can move forward with most of their claims in a class action alleging that the e-cigarette maker Juul Labs deceptively advertised and marketed its products. The judge tossed plaintiffs’ claims of negligence per se, negligent marketing and breach of express warranty, but otherwise rejected arguments by Juul’s lawyers at Gibson, Dunn & Crutcher that (among other things) class representatives’ claims were preempted by Food and Drug Administration regulations or were not adequately pleaded.

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