Defendants Cannot Evade Class Actions by Forcing Satisfaction of Individual Claims

In Geismann v. ZocDoc, Inc., the Second Circuit extended the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, No. 14-857 (2016) to protect plaintiffs from defendants who seek to dodge class litigation.  Defendants cannot force plaintiffs to accept money that they deposit into an account with the Court and then claim that this satisfies all of the demands of the proposed class.

Read More

Kentucky Court Greenlights Pension Plan Lawsuit Challenging Questionable Hedge Fund Investments

In a recent decision, Mayberry v. KKR & Co., L.P., No. 17-CI-01348 (Ky. Cir. Ct., Nov. 30, 2018), a Kentucky state court sustained claims brought by several government employees who sued derivatively on behalf of the Kentucky Retirement Systems. The suit alleges that the retirement systems over-invested their pension assets in risky and expensive hedge fund-managed accounts, resulting in billions of dollars of financial losses. The decision highlights several issues related to trustees’ roles in overseeing public retirement funds, and the litigation may eventually publicize the relationships between hedge funds and retirement plans.

Read More

Investors Who Live Outside the U.S. and Who Purchase the Stocks or Bonds of a Company Listed and Traded in the U.S. Can Recover Money Lost Due to Fraud by that Company From a U.S. Court

Sometimes the value of a company’s securities decreases because corporate misconduct or fraud is revealed.  For example, news may come out that a company lied in its financial statements about its revenue or profits, or a company hid significant negative events impacting its manufacturing facilities.  Because the U.S. securities laws apply depends on whether the stock was purchased on a U.S. exchange, not the residency or location of the investor, investors who live outside the U.S. may be able to recover damages under the U.S. securities laws.  The recent scandal at Petrobras Brasileiro S.A. (“Petrobras”) provides a perfect example of this.

Read More

Defendants Can’t Have It Both Ways: Seventh Circuit Rejects “Dubious Strategy” of Removing to Federal Court and then Seeking Dismissal for Lack of Standing under Spokeo

Federal courts are courts of limited jurisdiction; they cannot hear every case. A dispute must fall within the federal court’s specific “subject matter jurisdiction” in order for the federal court to hear and decide the dispute. One element of subject matter jurisdiction is Article III or constitutional standing. The Seventh Circuit recently rejected one argument as a “dubious strategy,” holding that state court defendants cannot remove a case to federal court and then move to dismiss for lack of standing under the Supreme Court’s decision in Spokeo, Inc. v. Robins.

Read More

Supreme Court Allows Mandatory Arbitration in Employment Agreements

By: Joshua Ruthizer

The inclusion of mandatory arbitration clauses with class action waivers has become common in contracts people face every day.  For example, it is difficult to fill out a credit card application, get cell phone or internet service, or even sign up for a website or shop online, without agreeing to mandatory arbitration and waiving the right to bring or participate in a class action.  The use of these clauses has also become common in employment contracts.  According to a 2017 study, since the early 2000s, the number of non-union, private sector employees who are subject to mandatory arbitration has more than doubled to 55%.

The use of mandatory arbitration and class action waivers just got a big boost, and is probably going to become even more common.  Last month, the Supreme Court held in Epic Systems Corp. v. Lewis that the use of mandatory arbitration clauses in employment contracts that prevent workers from engaging in a class action is permissible and does not violate federal labor law. 

The story here begins in the early 20th Century.  Before that time, many courts looked askance at arbitration provisions, and would refuse to enforce them.  In 1925, Congress passed the Federal Arbitration Act, or FAA (not to be confused with the Federal Aviation Administration), which states that agreements between parties to submit disputes to arbitration are valid and enforceable.  Ten years later, Congress passed the National Labor Relations Act (NLRA).  The NLRA protects workers’ rights to engage in “concerted activities,” including “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 

The plaintiffs in Epic claimed that the NLRA’s provisions protecting their right to concerted activities trumped the FAA and made class action and joint action waivers in employment contracts invalid.  The Supreme Court, in a 5-4 decision by Justice Gorsich, disagreed.  The Court held that the NLRA’s protection of “concerted activities for the purpose of collective bargaining or other mutual aid or protection” focuses on the right for unions to organize and bargain collectively.  The Court also focused on the fact that the provision is silent on arbitration and class or collective/group actions.

Justice Ginsburg wrote an impassioned dissent, stating that the Court “today subordinates employee-protective labor legislation to the FAA” and “In so doing, the Court forgets the labor market imbalance that gave rise to the NLGA and the NLRA, and ignores the destructive consequences of diminishing the right of employees ‘to band together in confronting an employer.’” (Emphasis added).   Justice Ginsburg added that “the inevitable result of today’s decision will be the under enforcement of federal and state statutes designed to advance the well-being of vulnerable workers.

Justice Ginsburg’s dissent already may be more fact than prediction.  In a January 2018 paper titled “The Black Hole of Mandatory Arbitration,” NYU Law Professor Cynthia L. Estlund concluded that “the great bulk of employment disputes” subject to mandatory arbitration “evaporate before they are even filed.”  One reason is that claimants may be unable to find legal representation due the small amount of damages, which make paying an hourly rate or a contingency fee arrangement both economically unviable.  This is not a phenomenon limited to employment contracts.  In 2015, the New York Times published a three part series titled “Beware the Fine Print.”  The articles discuss numerous cases of how arbitration can be stacked against wronged consumers and employees.

The Supreme Court’s decision in Epic is its latest in a line of cases over the past ten years that have found arbitration agreements and class action waivers valid, the FAA trumps state laws that try to limit them (AT&T Mobility v. Concepcion (2011)  and DIRECTV, Inc. v. Imburgia (2015)), and class arbitration requires a contractual basis to conclude that it was specifically agreed to by the parties (Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010)).  The push towards arbitration will again reach the Supreme Court in its 2018-2019 term in Lamps Plus Inc. v. Varela.  Varela’s employment contract with Lamps Plus included a waiver of the right to file a lawsuit in court and have his claims decided by a judge or jury.  Varela agreed “that arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment.”  The agreement did not expressly allow or prohibit class arbitration.  The Ninth Circuit Court of Appeals concluded, applying state contract law, that a “reasonable–and perhaps the most reasonable–interpretation of this expansive language is that it authorizes class arbitration.”  The Supreme Court will decide whether state contract law interpretation of a general arbitration clause can allow for class arbitration, or whether such an interpretation is banned by the FAA (which would likely mean that a contract must specifically state class arbitration is allowable).  This case has the potential to further limit employees and consumers class action rights.  We will follow this case and update you when a decision is issued.

Reel v. Real, 5 Silicon Vall. 7, 8 (2018)

By Joshua Ruthizer

Spoilers to follow! If you haven’t seen episodes 7 and 8 of HBO’s Silicon Valley, go watch and come back to us!  

Episodes 7 and 8 of Silicon Valley find Pied Piper on the verge of launching the new internet.  Richard is ready to get his Series B investment from his VC backers at Bream/Hall.  However, when Guilfoyle realizes that the price of some Pied Piper computing credits being traded among other start-ups has gone through the roof, he approaches Richard with the opportunity for Pied Piper to launch an Initial Coin Offering (ICO) rather than taking the Bream/Hall’s money.  Richard raises this issue with Monica, who flips out, espouses all the other benefits besides investment capital that Bream/Hall provides (regulatory and legal advice), and asks Richard why he would ask her opinion about an ICO that is essentially a competitor to VC’s everywhere.  Monica sends Richard and Guilfoyle to meet with Russ Hanneman, the arrogant (to put it nicely) and foul-mouthed (understatement) billionaire investor from earlier seasons.  Richard and Guilfoyle meet Russ at a garbage dump, where Russ is paying workers to look for a thumb-drive that contains $300 million worth of cryptocurrency that was accidentally thrown out.  It turns out that Russ lost $1 billion running 36 ICOs, 35 of which failed.  This is enough to convince Richard to take the Series B from Bream/Hall.While Richard is executing the documents, Monica interrupts him and tells him to do the ICO.  It turns out that Laurie wants 70% of Pied Piper’s revenue to come from ads, something that Richard is totally against.  Richard convinces Monica to leave Bream/Hall, come to Pied Piper, and run the ICO. 

All is right with the world, right?  Well, no.  The ICO is a flop, trading at less than $1 per coin.  Also, Jian-Yang, back in China, has figured out a way to run his stolen version of Pied Piper’s new internet and not infringe on Richard’s patent.  After unsuccessful attempts to buy the tech by Gavin Belson, Jian-Yang sells his tech to Yao, a former partner of Gavin and new partner of Laurie.  Laurie and Yao plan totake over the new internet through a 51% attack.  They are manufacturing phones and installing the Pied Piper app on them.  Once they have 51% of the users, they will seize control, re-write the code, and delete the octo-pipers (really a bad name) from the system.  Luckily, Pied Piper discovers the scheme, and after enlisting Gavin’s help, a double-cross by Gavin, a triple-cross of Gavin by Richard, and some unfortunate dancing and use of languageby Richard, Pied Piper is able to add users, retake control of the system, and eliminate the threat from Laurie and Yao.  Finally Silicon Valley fans, Pied Piper is a success, will have to significantly staff up, and is moving into huge new offices.  Oh yeah, and the price of Pied Piper Coin goes up to over $2.

We thought that these two episodes would be a great way to give an introduction to ICOs and cryptocurrencies.  Cryptocurrencies, or crypto, are digital currencies that are not backed by central governments.  Instead, they obtain their value from supply and demand.Cryptocurrencies are also de-centralized.  Rather than centralized recording of transactions (i.e. your bank), every transaction is monitored and recorded by all persons who purchase the currency.  Every new transaction for a cryptocurrency unit (usually referred to as a coin or a token) is recorded on the network as a new “block” on the “chain” of transactions for that coin – hence the term “blockchain.” 

There are over 1,500 known cryptocurrencies out there, many of which were distributed through ICOs.  But investors should be aware, because of the decentralized nature of crypto, and the until-recently lack of regulatory oversight, there is the potential for fraud in the ICO process.  The Wall Street Journal recently examined documents for 1,450 ICOs, and found that 271 of those offerings (which raised more than $1 billion) had red flags and indicia of fraud, including plagiarized investor documents, promises of guaranteed returns, and missing or fake executive teams.The Securities and Exchange Commission (“SEC”) also unveiled a fake ICO to educate investors on just how easy it is to be defrauded.

There is also confusion over whether crypto is a security, subject to oversight by the SEC, or a commodity subject to oversight by the Commodity Futures Trading Commission (“CFTC”).  In March 2018, a federal judge in Brooklyn ruled that they are commodities subject to regulation by the CFTC.  However, currently (May 2018), another judge in the same courthouse is hearing a criminal case where the defendant is challenging the DOJ’s position that the tokens at issue are securities.  The eventual resolution of this question is important as it will determine how, and under what laws, ICO investors can bring claims to recover damages caused by fraud or wrongdoing. 

We hope you have enjoyed our first series of Reel v. Real.  Check back soon for our next series, which will be launched in Summer 2018.