Archive for April 15th, 2015

April 15, 2015

Perino Article Cited in Reuters

Professor Michael Perino’s co-authored article on securities class action fee-setting (linkedmp below), which will be published in the Columbia Law Review, was cited in this Reuters story by Alison Frankel. A bit from the beginning:

A couple of weeks ago, I wrote about a fee opinion by U.S. District Judge Lewis Kaplan of Manhattan, who decided that a request by class counsel for 13 percent of a $346 million settlement with underwriters of IndyMac mortgage-backed securities was just too much. Even though the 13 percent request was in line with the fee deal plaintiffs’ firms had negotiated in advance of the litigation with the lead plaintiff, a public pension fund, Kaplan cut the fee award to 8 percent, based on his own experience with securities class actions and skepticism about the hours reported by class counsel.

That example is a paradigm of the problems with the current system of awarding fees in securities class actions, at least as those problems have been pinpointed in an upcoming Columbia Law Review article by law professors Lynn Baker and Charles Silver of the University of Texas and Michael Perino of St. John’s University. In “Is the Price Right: An Empirical Study of Fee-Setting in Securities Class Actions,” the professors dipped into the dockets of 434 settlements announced between 2007 and 2012, looking at (among other things) how pre-set fee agreements with counsel factored into lead plaintiff selections; how fee requests and awards varied by the volume of cases handled by different jurisdictions and even individual judges; and why judges in about 15 percent of the settlements cut the requested fees.

Their overall conclusion is that in the vast majority of cases, fees are determined after the fact, based only on the size of settlement and the biases of the court. The professors argue that their findings show one of the goals of the Private Securities Litigation Reform Act of 1995 – to encourage lead plaintiffs to exercise oversight by negotiating fee arrangements with class counsel at the onset of a case – has not been met. They also concluded plaintiffs lawyers may be exploiting market inefficiencies by requesting higher fees from courts with a low volume of securities cases. And judges who slash fee requests without real analysis of benchmarks, they said, create uncertainty that, in the long run, hurts investors because it discourages class action lawyers from investing in cases.

April 15, 2015

Subotnik Article on Copyright and Estate Law To be Published by Harvard Journal of Law and Technology

Professor Eva Subotnik’s article, Copyright and the Living Dead?: An Estates Law View

Eva Subotnik

Eva Subotnik

of the Post-Mortem Term, will be published in the fall by the Harvard Journal of Law & Technology.  Here is the abstract:

Is there any good reason why the term of copyright, which was once a scant fourteen years long, should now last decades beyond the death of the author?  Proponents of copyright as a form of property have generally welcomed this expansion.  By contrast, recent scholarship has cast doubt on the soundness of any post-mortem period of protection, citing anti-social behavior by well-known authors’ successors that threatens our cultural heritage.  Absent from the literature thus far, however, has been a systematic study of how estates law principles, which govern the general succession of property, bear on the justifications for and scope of copyright’s post-mortem term.  Undertaking that task, this article makes two principal points.  First, estates law theories and doctrines provide discrete support—beyond what general property principles provide—for a post-mortem term that should be taken into account in any debate over copyright duration.  Second, while there are costs associated with the post-mortem term, they should be viewed primarily through the prism not of dead-hand control but of suboptimal stewardship by the living.  Together, these points begin to suggest changes that should be implemented, including the shortening of the post-mortem term and the instantiation of better stewardship practices among authors’ successors.

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