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Under the Biden Administration, we expect the Department of Justice to reinvigorate the policies aimed at increasing coordination between the criminal and civil divisions. In a 2015 Memorandum – the “Yates Memo” – former Deputy Attorney General Sally Yates pushed for “early and regular communication” between civil and criminal division attorneys in their pursuit of corporate investigations. Current conditions, including the government’s COVID-19 response under the Coronavirus Aid, Relief, and Economic Security Act and additional pandemic relief packages, have set the stage for renewed focus on this collaborative policy outlined by Yates. In the private funds space, this strategy could create a potential multi-pronged risk to portfolio companies and their private equity owners and creditors who have received funding from federal relief programs.
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Over the past year, the use of Special Purpose Acquisition Companies, or SPACs, to go public has skyrocketed.[1] As
The
Wall Street Journal explained, “With interest rates on the floor and investors chasing young companies, this is a dream scenario for SPACs.”[2] As the SPAC boom continues, it is important to understand that SEC guidance on SPACs is evolving. The SEC’s statements on SPACs have quickly progressed from a short bulletin educating investors on using SPAC vehicles to take companies public, to specific guidance strongly implying that the SEC staff is carefully scrutinizing disclosures related to SPAC transactions.[3] Indeed, the SEC’s recent guidance identifies specific disclosure areas that SEC staff will focus on and likely provides a roadmap for both future SEC enforcement and the plaintiffs’ bar.
5 and
even The World Health Organization,
6 it seems that no one is beyond of
the reach of the class action, especially in the wake of the
coronavirus pandemic. But have the plaintiffs in these cases
suffered a bona fide injury caused by the defendants
conduct?
Many contemporary class actions exhibit features of what one
legal scholar of past mass tort waves dubbed the entrepreneurial model
7 of lawyer-driven litigation. This
article examines those features and the problems they present, and
discusses how they can be leveraged in the defense of class
actions-from standing to certification to merits.
Background: The Entrepreneurial Model of Mass
“
-William Shakespeare, The Tempest, Act 2, Scene 1.
The meteoric rise in class actions over the past decade has been well-documented. Nowadays even mac & cheese is under attack, with two proposed nationwide class actions filed this month alone claiming labels such as “The Taste You Love”[1] and “Made with Goodness!”[2] are false and misleading.
Hair care products are also in the crosshairs. This month a plaintiff and her lawyers filed their second class action in a year alleging beauty companies falsely advertised their shampoo as “natural.”[3]
From consumer product companies to banks,[4] universities[5] and even The World Health Organization,[6] it seems that no one is beyond of the reach of the class action, especially in the wake of the coronavirus pandemic. But have the plaintiffs in these cases suffered a bona fide injury caused by the defendants’ conduct?
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