Having diversified their portfolios beyond U.S. stocks and bonds, today’s institutional investors are now diversifying the legal tools they use to protect those investments. In cases where markets were manipulated, some pension funds are suing under antitrust laws and the Commodity Exchange Act to recover losses and make rigged markets more efficient.

While many of these alternative investment cases are still in their nascent stages, early results offer investors hope. An antitrust case involving the market for credit default swaps recently settled for $1.9 billion and injunctive relief that should make it easier for credit default swaps to be traded on exchanges. Another case, focused on manipulation of the foreign exchange markets, has yielded $2 billion in partial settlements thus far.

So what caused this increase in claims under the antitrust laws and the Commodity Exchange Act? And what should pension funds and other institutional investors do to make sure they are identifying and managing potential claims that are, after all, assets of their trust?

The rise in private lawsuits by investors alleging antitrust and Commodity Exchange Act violations is primarily linked to two factors. First, the courts and Congress have whittled away at U.S. securities laws, narrowing the circumstances under which investors can sue and making it tougher for them to prevail when they do. Second, institutional investors have expanded their portfolios to include a variety of alternative investments.

North Carolina has justifiably been pilloried in recent weeks for enacting legislation that requires public school students and state employees to use the bathrooms reserved for their biological sex, regardless of the gender with which they identify. In many ways, this legislation resurrects memories of racially segregated restrooms that were mandated by law until the middle of the last century. Motivated by the same kind of fear and unjustified stereotypes as before, the segregation this time is directed at transgender people.

The bill’s requirement that state employees and public school students use restrooms designated for their sex at birth, regardless of the gender with which they identify, is bad enough. But the bill also limits protections against sex discrimination to one’s “biological sex,” which further reinforces state-sponsored hostility to transgender people. Although such a limitation may not impose the same daily inconvenience or humiliation as the restroom restriction, it wholly exempts transgender people from the state’s legal protection.

In this Bloomberg BNA Pension & Benefits Daily article, Cohen Milstein Partners Carol V. Gilden and Michael Eisenkraft describe how the antitrust laws and the Commodity Exchange Act, among other laws, can provide additional protection to pension funds’ portfolios in some scenarios where investments may not be protected by the securities laws.

Ms. Gilden and Mr. Eisenkraft explore the two main reasons why this has occurred and then focus on a partial solution for this issue.

From the Class Action Litigation Report

“Pre-dispute arbitration clauses should be restricted because they harm consumer welfare…consumers often don’t grasp the implications of arbitration clauses until they have a dispute and are seeking relief.”

The 1933 Securities Act requires a company, prior to issuing securities via a public offering, to file a registration statement, and § 11 of the Act makes statement issuers liable, via a private right of action, if, inter alia, that statement ‘‘contain[s] an untrue statement of a material fact’’ or ‘‘omit[s] to state a material fact . . . necessary to make the statements therein not misleading.’’ 15 U.S.C. § 77k(a). Section 11 has no scienter requirement, thus the statute makes no mention of an issuer’s intent to mislead.

On Oct. 4, 2013, after the U.S. Court of Appeals for the Sixth Circuit denied its motion to dismiss the plaintiffs’ Securities Act claims (12 CARE 675, 6/20/14), Omnicare Inc. filed a petition for certiorari with the Supreme Court, presenting the following question: ‘‘For purposes of a Section 11 claim, may a plaintiff plead that a statement of opinion was ‘untrue’ merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false— requiring allegations that the speaker’s actual opinion was different from the one expressed—as the Second, Third, and Ninth Circuits have held?’’ The Supreme Court granted certiorari March 3, 2014 (12 CARE 1451, 11/7/14) and issued a March 24 opinion by Justice Elena Kagan that delineated the circumstances in which liability can attach to a statement of opinion in a registration statement.

Read Omnicare: Negligence is the New Strict Liability When Pleading Omissions Under the Securities Act

Michael Eisenkraft’s article critically analyzes the reasoning in Stratte-McClure and NVIDIA, explores what this split — on a fundamental issue of securities law — means for both the securities bar and corporations, and provides a prediction as to which way the U.S. Supreme Court would rule should its recent enthusiasm for securities cases extend to resolving this circuit split.

Read Can Silence Keep You Safe? New Debate On 10b-5 Liability

The day time and late night television commercials are still soliciting individuals who have been implanted with the now infamous transvaginal mesh. Just type the word “transvaginal” in Google and a majority of the search results will include information on either pending or resolved lawsuits involving transvaginal mesh products. A less publicized, but equally dangerous product, has now made its way into the well of the courtroom: Hernia mesh. There are currently 13 hernia mesh cases led in New Jersey state court which are actively being litigated. The manifestation of the harm this product poses may take significant time to develop, and a careful reading and interpretation of Florida’s statute of limitations in conjunction with the statute of repose is necessary to identify clients who still have viable claims despite protracted periods of time.

General Motors has recalled over 20 million vehicles in 2014 – more vehicles than it sold last year. Astounding. Even more astounding is that many of these recalls should have occurred long ago, but GM failed to act on information that it was using a defective ignition switch component in many of its vehicles. According to independent safety regulators, that failure to act resulted in the deaths of at least 303 people who were involved in accidents as a result of the defective ignition switches. Given the ever-expanding number of recalls, it is expected that the scope of vehicles recalled will increase, as will the number of injuries and deaths related to GM’s defective vehicles.

This paper was presented by Christine Webber at the National Employment Lawyers Association 2014 Annual Convention, “Blazing the Trail: Courage │Challenge │Change.”

Employer databases contain rich stores of information; understanding how a particular database works and what it contains is the key to unlocking its value as a source of discoverable information.

Before considering common databases in employment litigation, we will provide some down-to-earth explanations of database concepts by examining a something all lawyers are familiar with: billing one’s work. You may not have thought of your time records as constituting a database, but that is exactly what they are. Many of us track our time using practice management software, but database concepts apply equally even if you track your time on paper only. In database parlance, the template or pattern for a time entry is an “object,” and it is generally comprised of several “fields”: the name of the biller, the date the work is performed, the name of the matter, the amount of time, the rate, and a description of the work performed. Each individual time entry that you create is called a “record,” which is a particular instance of the time entry object. The database itself is the collection of all existing time entry records for all cases, for all billers, as well as records for other objects (attorneys, cases, contacts, etc.). When you create an invoice, you are selecting a subset of time entry records from the database for easy presentation to the client or the court. The invoice itself is an example of a “report,” which refers to a snapshot of the database that is used for a particular purpose—here, billing a client. The criteria used to select the pertinent records for a report is called a “query.” By understanding the terms object, record, field, report, and query, you will be well on your way to knowing how to conduct database discovery.

Download Documents v. Data.

Dougls J. McNamara co-authored, “Reexamining the Seventh Amendment Argument Against Issue Certification,” 34 Pace Law Review, 1041 (2014), along with Blake Boghosian, George Washington University Law School, and Leila Aminpour, Consumer Financial Protection Bureau.

Issue certification is a controversial means of handling aggregate claims in Federal Courts. Federal Rule of Civil Procedure (“FRCP”) 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Issue certification has returned to the radar screen of academics, class action counsel,
and defendants. The Supreme Court’s decision regarding the need for viable damage distribution models in Comcast v. Behrend may spur class counsel in complex cases to bifurcate liability and damages. The successes of tobacco-injury plaintiffs in Florida’s Engle v. Liggett Group cases show that personal injury actions can make use of issue class actions.