Yesterday, NERA Economic Consulting issued a working paper entitled Trends in Canadian Securities Class Actions: 2009 Update. The paper covers offers a variety of figures and statistics on cases being pursued, time to resolution, the values of settlements reached in 2009, the exposure represented by cases still pending, and the number of cases with parallel U.S. proceedings. One key trend discussed in the report is the development of the law on “secondary market liability” provisions of provincial securities acts, especially the Ontario Securities Act. For a primer on secondary market liability in Canada, see this article from Canadian firm McCarthy Tétrault entitled Ten Quick Tips on Minimizing Exposure to Secondary Market Civil Liability.
Posted in Class Action Trends, International Class Action Law, Reports and Surveys | Tagged canada class action, canadian class action, NERA, ontario class action, secondary market liability, securities class action | Leave a Comment »
Sorry to all my loyal readers (I use the plural form optimistically) for my absence from the Blawgosphere during the past week. During my hiatus, Ward Branch of the Vancouver, B.C. firm Branch MacMaster sent me a copy of this decision denying class certification in an Alberta case filed against a chiropractic professional association and a would-be defendant class of chiropractors. The case had received quite a bit of press in Canada when it was filed, no doubt due in no small part to the catastrophic injuries suffered by the named plaintiff, allegedly as a result of treatment received from a chiropractor. (See, e.g., this June 2008 Canadian Press article). In addition to addressing class certification issues, the decision addresses some interesting issues regarding the duty of care owed by a professional association to the public for injuries allegedly caused by its failure to properly regulate its members.
Posted in Class Action Decisions, International Class Action Law | Tagged alberta class action, canada class action, chiropractor class action, class certification, defendant class | Leave a Comment »
Last week, I posted a short note about the Eighth Circuit’s decision in In re Baycol Products Litigation. Here is a more in-depth synopsis, thanks to fellow Baker & Hostetler partner Joe Ezzi:
The Eighth Circuit Court of Appeals recently affirmed a district court order enjoining state court plaintiffs from pursuing a class action because the district court had already denied certification of an identical class in federal court. In re Baycol Products Litig., ___ F.3d ___ (8th Cir. January 5, 2010).
A state court putative class action was filed by George McCollins in West Virginia in 2001. Bayer removed the case and it became part of a multidistrict action consolidated before the district court in Minneapolis. Class certification was denied in the McCollins MDL class action, with the district court making certain legal conclusions concerning economic loss requirements under West Virginia law related to predominance. At the same time, a similar West Virginia state court class action was pending against Bayer, albeit with different putative class representatives. Following the district court’s denial of class certification, Bayer moved the district court to enjoin the plaintiffs in the West Virginia state court action from pursuing a class action because, as absent putative class members of the McCollins lawsuit, they could not relitigate the previous federal court decision denying certification of a West Virginia economic loss class. The district court granted Bayer’s request for an injunction under the All Writs Act.
The Eighth Circuit, in affirming the district court order enjoining the West Virginia state court class action, found that the West Virginia state court plaintiffs sought “certification on the same legal basis of the same class already denied in this case.” In re Baycol Products Litig., ___ F.3d ___ (8th Cir. January 5, 2010), slip op. at 6. Thus, “in the context of MDL proceedings, certification in a state court of the same class under the same legal theories previously rejected by the federal district court presents an issue sufficiently identical to warrant preclusion under federal common law.” Id. at 10. Further, relying on the Seventh Circuit decision in In re Bridgestone/Firestone, 333 F.3d 763 (2003), the Eighth Circuit noted that the putative class representative in the federal action was in privity with the state court class representatives for purposes of collateral estoppel based on allegations of adequacy of representation and because both putative class representatives asserted the same claims.
Posted in Class Action Decisions | Tagged anti-injunction act, baycol, class certification, collateral estoppel, federalism, preclusion, preclusive, product liability, res judicata | Leave a Comment »
A colleague tipped me off today to a recent Eighth Circuit Court of Appeals decision upholding a Minnesota federal district court’s order enjoining class certification proceedings in a West Virginia state court, following the federal court’s earlier denial of class certification in an action filed against the same defendant. Here’s a link to the slip opinion: In re Baycol Products Litigation, No. 09-1069 (8th Cir., Jan. 5 2010). The decision is in accord with a 2003 Seventh Circuit decision, In re Bridgestone/Firestone, 333 F.3d 763, 767-68 (7th Cir. 2003), which also held that the relitigation exception to the federal Anti-Injunction Act ”permitted an injunction barring relitigation in state court of a federal court’s denial of class certification.” In re Baycol Prods. Lit., No. 09-1069, slip op. at 9 (citing In re Bridgestone/Firestone, 333 F.3d at 769).
Posted in Class Action Decisions, Federal Court Decisions | Tagged anti-injunction act, class certification, collateral estoppel, federal court, federalism, preclusion, relitigation, res judicata, state court | Leave a Comment »
Andrew J. Trask (twitterfeed: @classstrategist) of the international law firm, McGuire Woods, has a great new legal blog called Class Action Countermeasures. The blog’s tagline is “Discussions of the Strategic Considerations Involved in Class Action Defense,” and it definitely lives up to that promise. Here’s just a sample of the titles of insightful articles published on the blog over the past month:
- Making the 30(b)(6) Deposition Work for You
- Fighting Fishing Expeditions, The Oppenheimer Relevance Objection
- Beating Plaintiffs to the Punch, The Motion to Deny Class Certification
- Battling Third Party Litigation Funding: Aim Interrogatories at Funding Sources?
I’m adding Class Action Countermeasures to my blogroll and will be checking it for updates regularly, so opposing counsel, beware!
Posted in Other class action blogs | Tagged class action blog, class action countermeasures, class action strategy | Leave a Comment »
I’m in Montana this week visiting family for the Holidays. Merry Christmas, and check back next week for new content.
Posted in General Site Information | Leave a Comment »
Cy pres awards continue to be a hot topic both in the news and in academia. The latest contribution comes from Columbia law student Sam Yospe, whose article entitled Cy Pres Distributions in Class Action Settlements (Columbia Business Law Review, forthcoming) examines judicial discretion in choosing cy pres awards and makes practical suggestions for reform. Yospe’s article is an excellent secondary research source for anyone looking at issues relating to cy pres awards in class action settlements.
Posted in Articles, Class Action Settlements, class action reform | Tagged class action settlement, cy pres, reversion | Leave a Comment »
Vanderbilt law professor Brian T. Fitzpatrick has published a great new research paper titled The End of Objector Blackmail? The paper discusses the problems of objectors blackmailing the parties to a class action settlement into paying them a portion of the fees at the threat of holding up final approval and resolution of the settlement. Professor Fitzpatrick discusses the history of the problem, provides a statistical analysis of ”quick-pay provisions,” which have been one approach to combatting the problem, and finally argues for an approach that prohibits settlements of objector appeals unless the settlement includes a modification to the underlying agreement.
My own take on this issue, based purely on my own anecdotal observations, is that the objector blackmail problem has improved significantly over the past few years. From a defendant’s perspective, it was never much of a problem to have class counsel forfeit a portion of their fee to an objector to hasten approval of a settlement, but many plaintiffs’ lawyers have started refusing to negotiate with objectors. Two additional effective practical tools for fighting frivolous objectors include 1) asking the Court to require the posting of a substantial bond pending appeal of any objection to the settlement; and 2) asking the trial court for sanctions against frivolous objectors or their counsel.
Posted in Articles, Class Action Trends, Commentary, Practice Tips, class action reform | Tagged class action objection, class certification, objector blackmail, professional objector, quick-pay, settlement approval | Leave a Comment »
Two of my greatest passions are class action law and NFL football, although not necessarily in that order. So, my interest is always piqued when the two are combined. Much to my delight, I came across this article from Rebecca Mowbray of The Times-Picayune that Saints Coach Sean Payton is the lead plaintiff in a putative class action filed in federal district court in New Orleans against a Chinese drywall manufacturer. Let’s hope class certification comes after February 7, because it looks like Coach Payton may be too busy with other obligations to focus on his obligations as class representative until then and could run into trouble meeting the adequacy of representation standard under Rule 23(a)(4).
Curiously, in another would-be class action involving the NFL, Parrish v. NFL Players Association, class certification was denied in part because the named plaintiff was found to be an inadequate representative. However, the would-be representative in that case was rejected for reasons much more serious than simply being busy. The court found that he was inadequate because his “vindictive remarks aimed at defendants, the racial slurs in several of his statements, his stated unwillingness to ever settle this case, and his blemished track record of representing retired NFL players — all demonstrate that he cannot be trusted to fulfill his fiduciary duty to the proposed class.”
Posted in Class Action News, rule 23 | Tagged adequacy of representation, new orleans saints, rule 23(a)(4), sean payton, super bowl | 1 Comment »
Subscribe by Email
Twitter Feed: @classaction
- “What Would King Solomon Do?” or “Justice Is No Joke” http://bit.ly/8X6GtD 3 days ago
- NERA Economic Consulting Issues Report on Securities Class Actions in Canada http://bit.ly/99ZyOe 1 week ago
- Class Action No Longer a Pain in the Neck for Alberta Chiropractors http://bit.ly/du1y3L 1 week ago
-
Recent Comments
- Jerry Alden on What Does It Mean When a Federal Appeals Court Denies Appeal of a Class Certification Order?
- Paul Karlsgodt on What Should We Do With Unclaimed Class Action Funds, Pres Tell?
- Burton Haynes on Journal Record: Oklahoma Appeals Court Bars Multiple Class Action Suits by Members of the Same Class
- guesDiesy on NFL Football and Class Actions, a Mix as Good as Chocolate and Peanut Butter?
- Cert Granted in Morrison v. National Australia Bank Ltd. « ClassActionBlawg.com on Second Circuit Unwilling to Reject “Foreign Cubed” Class Actions Categorically
-
Recent Posts
- “What Would King Solomon Do?” or “Justice Is No Joke”
- NERA Economic Consulting Issues Report on Securities Class Actions in Canada
- Class Action No Longer a Pain in the Neck for Alberta Chiropractors
- More on In re Baycol Products Litigation
- Eighth Circuit Upholds Federal Injunction of Putative State Court Class Action
Archives
-
Our Contributors
Posts by Date
-
-
Tags
Paul Karlsgodt
“What Would King Solomon Do?” or “Justice Is No Joke”
February 4, 2010 by Paul Karlsgodt
A Los Angeles County Superior Court judge’s attempt to exact poetic justice out of a proposed gift card settlement has resulted in a censure by the California Commission on Judicial Performance, according to this article from the legal humor blog, Lowering the Bar. The censure stems from a ruling on a motion for final approval of a settlement that reportedly called for a $125,000 fee for the plaintiffs’ lawyer and $10 gift card for settlement class members. Judge Brett Klein, filling in for an ill colleague in presiding over the final fairness hearing, had initially approved the settlement only on the condition that the fee also be paid in gift cards (although he apparently later granted reconsideration of that order and the settlement was ultimately approved as originally proposed).
It sounds like the cult hero status that Judge Klein will have attained among some factions of society as a result of the ruling may have more than compensated for the shame of the public censure, especially since he has since retired from the bench. But whether or not you think the lawyer got what he deserved, other aspects of the conduct that reportedly led to the censure have to be troubling, such as sarcastic comments to the attorneys during the fairness hearing and “grandstanding” to the press about the order. It is one thing to believe that “coupon” settlements are unfair and should not be allowed, it is quite another for a judge to publicly mock lawyers and litigants for seeking relief that is within his power to simply deny with dignity and decorum.
Posted in Class Action Humor, Class Action News, Commentary, class action reform | Tagged class action settlement, coupon settlement, gift card settlement, judge brett c. klein | Leave a Comment »