A little while ago, Anthony Rickey and I published an article looking at the settlement approval process in class actions with a particular focus on the State Street Case.  Our article noticed that Judge Wolf found that class counsel made deceptive, less than fully candid statements when it submitted hourly rates to a court which no client had ever actually paid:

In theory, a vigorous lead plaintiff actively supervises its lead counsel, examining fee requests to maximize the portion of the settlement retained by the class. The efforts that ATRS undertook to supervise its class counsel remain unclear, but they do not seem to have been effective. In the State Street litigation, Judge Wolf harshly criticized Thornton for declaring, under oath, that one attorney’s regular rate was $500 per hour, when the firm could only identify one case in which that attorney had been charged at even $300 per hour. He similarly noted that Labaton submitted as “regular rates” for services hourly rates that had “never been charged to paying clients.” ATRS did not volunteer these facts. They were only discovered because the State Street court took the apparently unprecedented step of appointing a special master to investigate.(footnotes omitted) 

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In June, the Ninth Circuit handed down its opinion in Meland v. Weber, holding that an individual shareholder of OSI Systems had standing to challenge California’s board diversity law, which mandates that publicly-traded companies with headquarters in the state appoint a certain number of women directors.

The shareholder is claiming that the mandate violates the 14^th Amendment, and the Meland opinion naturally doesn’t engage that; the question before the Ninth Circuit was simply whether the shareholder can sue.

To find standing, the court had to make two necessary findings: first, that the law actually operated on the shareholder, i.e., it demanded some kind of action or behavior from the shareholder despite being targeted to corporate boards (what the Ninth Circuit called being the “object” of the law); and second, that there was a cognizable injury to the shareholder, i.e., some kind of threat to the shareholder personally if OSI Systems did not comply.

With respect to both findings, the connections that the court found between the law and the shareholder’s injury were, shall we say, attenuated.

As for the first finding, that the law operates on the shareholder, the essence of the plaintiff’s claim is…

This just in from newly minted Northwestern Law Dean Hari Osofsky:

I am hiring a Climate and Energy Fellow to work under my supervision at Northwestern Pritzker School of Law on a variety of climate change and energy projects. The fellowship is ideal for someone planning on entering legal academia as it will provide opportunities for publishing and for mentoring on the academic market. It also would be good preparation for work in climate change or energy law and policy.

I’d be grateful if you would share the opportunity with your networks. Full position description and link to apply: https://careers.northwestern.edu/psp/hr857prd_er/EMPLOYEE/HRMS/c/HRS_HRAM_FL.HRS_CG_SEARCH_FL.GBL?Page=HRS_APP_JBPST_FL&Action=U&FOCUS=Applicant&SiteId=1&JobOpeningId=41064&PostingSeq=1

FINRA recently posted a regulatory notice seeking information on whether it should consider changes to “rules, operations and administrative processes that may create unintended barriers to greater diversity and inclusion in the broker-dealer industry or that might have unintended disparate impacts on those within the industry.”  Drexel’s Nicole Iannarone, who is currently chair of FINRA’s National Arbitration and Mediation Committee submitted a thoughtful letter.  As her letter explains, she’s particularly well-situated consider these issues:

My interest in this issue and its application to the FINRA arbitration forum is both professional and personal. I am a law professor who teaches business and securities law courses. My recent scholarship focuses specifically on consumer investors’ experiences in FINRA arbitration.3 I previously directed a law school securities arbitration clinic and supervised law students representing investors with smaller claims against their brokers in the FINRA arbitration forum. I am the chair of FINRA’s National Arbitration and Mediation Committee (NAMC). I am also a Mexican-American woman with her own non-retirement investment accounts. These experiences provide me a unique lens through which to view FINRA’s diversity and inclusion efforts as they relate to the FINRA Dispute Resolution forum. 

She rightly highlights that arbitrator diversity has…

Yesterday, the Supreme Court released its opinion in Collins v. Yellen.  As one observer predicted, the result followed from last year’s decision in Seila Law v. CFPB.  In Seila, the Supreme Court declared that the for-cause removal protection afforded to the head of the CFPB was unconstitutional.  In Collins, the Supreme Court reached the same conclusion, also finding that the for-cause removal protection was unconstitutional.  

Writing for ScotusBlog, Amy Howe succinctly described the facts:

The Supreme Court on Wednesday had mostly bad news for shareholders of mortgage giants Fannie Mae and Freddie Mac in their lawsuit seeking to unwind a 2012 agreement that required the companies to transfer profits to the federal government. The justices unanimously agreed that one of the shareholders’ claims could not go forward. And although the court agreed, by a vote of 7-2, that the structure of the federal agency that regulates Fannie and Freddie is at least in part unconstitutional, the court stopped short of ordering that the money be returned to the shareholders as a result of that constitutional defect. Instead, the case now goes back to the lower courts, which will determine whether the shareholders are entitled to

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Well, the Supreme Court’s decision in Goldman Sachs v. Arkansas Teacher Retirement System is out and I suppose that makes me legally obligated to blog about it.

The result itself was … overdetermined.  As I posted after oral argument:

[Goldman] argued that “genericness” is a relevant fact to be considered at class certification in service of the price impact inquiry, along with any other evidence on the subject.  Goldman’s claim was not that courts should revisit the question of materiality at class cert – which tests what a hypothetical reasonable investor would have thought about the statements – but that in weighing whether the statements actually had an effect on prices, it is legitimate for courts to consider the generic nature of the statements at issue.  …

[T]he plaintiffs agreed with Goldman that genericness is a relevant fact to be considered by courts as part of the price impact inquiry, subject to appropriate expert evaluation.  …Which meant, the disagreement between the parties boiled down to whether [] the Second Circuit had erred by rejecting the notion that genericness is relevant if not dispositive…

So the parties are functionally reduced to fighting over what the Second Circuit meant, and whether

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This coming Friday, June 25, at 1 PM EST, the Federalist Society is presenting Part 3 of its Freedom of Thought Six-Part Zoom Webinar Series.  This Part is entitled Limiting the Right to Exclude: Common Carrier and Market Dominance.  You can find additional details and register here (a recording of Part 1 can be found here; Part 2 here).  Below is a brief description of the focus of the program.

The recent concurrence by Justice Thomas in Biden v. Knight First Amendment Institute has raised new questions about how we might think about restrictions on speech and debate on social media. Where private, concentrated control over online content and platforms exists, can a solution be found in doctrines that limit the right of a private company to exclude?