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Archive for April, 2008

The best single piece of advice I ever got as a young lawyer came on one of the first days of my clerkship with the late U.S. District Judge D. Brook Bartlett.  My fellow clerk Jon Duncan and I were visiting Judge Bartlett at home to go over a pile of orders and bring him the Big Mac and fries that he’d been craving.  He was working from home while going through a round of chemotherapy following a bone marrow transplant to treat the cancer that would ultimately take his life a few years later.  Judge Bartlett gave me a lifetime’s worth of lessons in the two years I was honored to spend with him, and he serves as a role model for me both as an accomplished lawyer and as a person of extraordinary integrity, wisdom, and courage.

But this particular piece of advice came from the Judge’s wife, Karen Iverson, an accomplished lawyer in her own right.  Karen had been a partner in a big Kansas City firm before deciding to follow her passion and pursue a second career in theatre design.  I think it was when we were discussing how the Judge should deal with a minor discovery dispute, or a dispute about a request for a continuance or extension of time, that Karen let us in on her key to success: kill your opponent with kindness.

Agree to reasonable extensions of time and other requests, she said.  Be accomodating to opposing counsel.  Don’t raise an objection just because you can if it doesn’t help your client.  Give complete and thoughtful responses to discovery requests.  Don’t think it’s necessary to fight about every minor issue.  Then, when it’s time to argue about something important, you’ll have the credibility you need for the court take your position seriously, and you might even catch your opponent off guard.

I haven’t always followed Karen’s advice.  I recall more than a few shouting matches with opposing lawyers, especially during my first years as a litigation associate.  Those were arguments that never got me or my client anywhere.  No matter how earnest my argument, my opponent wasn’t going to be persuaded by it, and losing my cool wasn’t helping me keep the clarity of thought needed to develop and follow the best strategy for my client’s cause.

When I have followed Karen’s advice, though, it’s never steered me wrong.  Whether it has been due to following her strategy of civility, or just fantastic luck, I have been blessed in more recent years to have developed mostly collegial relationships and even friendships with opposing lawyers.  Getting along with opposing counsel has never, in my view, cost my clients anything.  I can meet all of my ethical obligations to my client and be a zealous advocate on the meaningful issues in the case without being a jerk to opposing counsel.  And the benefits of the approach are numerous, both for me and my clients.  I get extensions of time when I ask for them; I don’t get threatened with motions for sanctions; I am taken at my word in discovery without having to “prove” that I have fully complied with a request; settlement, even without the aid of a mediator, is a much easier process; and maybe most important at all, my stress level stays fairly low.

I’m sure part of the explanation for the civility that I have encountered in my practice may be the nature of a consumer class action practice itself.  The cases drag on for years even under the best of circumstances and the lawyers know from the outset they are going to have to deal with each other for a while, so they might as well get along.  Decision-makers on both sides tend to make their decisions based on a cost/benefit analysis as opposed to emotions.  The lawyers know that the size of the cases already make them a burden on the court, so they may tend to tread more lightly when it comes to deciding whether to resort to the Judge to resolve minor disputes.  But whatever the reason, my many positive relationships with opposing counsel have only strengthened my belief that the Golden Rule is not inherently inconsistent with the practice of law.

Maybe someday, years from now, a seasoned litigator will look back to his or her time as a young lawyer and remember hearing from me the same advice that Karen gave to me those years ago.  If so, I will be able to count my legal career a success.  Karen’s advice has withstood the tests of my experience, although I still have to remind myself of it from time to time.  Practicing with civility isn’t just a way to get opposing lawyers to like me, and it’s not just the right thing to do–It’s also the best way I know to serve the interests of my clients.

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Here are some blog entries of interest to class action practitioners from this past week…

See The UCL Practitioner for a detailed synopsis of a recent California Court of Appeal decision rejecting an objector’s challenge to a class action settlement:

http://www.uclpractitioner.com/2008/04/new-class-actio.html

The Complex Litigator counsels class action practitioners to consider opposing perspectives in interpreting class certification decisions that ostensibly favor a plaintiff’s or defendant’s viewpoint (note later entry regarding de-publication of the Bell decision):

http://www.thecomplexlitigator.com/2008/04/the-value-of-pr.html

Class Action Defense Blog summarizes a Missouri Supreme Court decision reversing class certification where the defendant’s liability was assumed in the class definition (sometimes called a “fail-safe” class definition):

http://classactiondefense.jmbm.com/2008/04/class_action_defense_casesvand.html

The D&O Diary discusses settlements in options backdating shareholder derivative lawsuits:

 http://www.dandodiary.com/2008/04/articles/options-backdating/uhoh-serious-options-backdating-settlement-problems/

SCOTUS Blog summarizes oral argument before the United States Supreme Court in a case involving a novel procedural device in which thousands of payphone service providers assigned their claims against long-distance telephone carriers to a few “aggregators,” who were assigned the claims solely “for the purposes of collection” but who were required to return any recovery back to the individual providers:

http://www.scotusblog.com/wp/argument-recap-sprint-att-v-apcc/#more-7060

For a multi-faceted analysis response to recent blog commentary about FACTA class actions filed against merchants for leaving too much credit card information on credit card receipts, see this Bank Lawyer’s Blog article:

http://www.banklawyersblog.com/3_bank_lawyers/2008/04/what-we-have-he.html

The NV Flyer summarizes summary judgment rulings in a class action against charter aircraft services carriers:

http://nvflyer.wordpress.com/2008/04/28/court-rules-on-summary-judgment-motions-in-charter-flights-class-action/

LegalNewsline.comreports on an interview with Utah AG Mark Shurtleff discussing his openness to caps on punitive damages awards to “preserve the state’s favorable legal climate:” 

http://www.legalnewsline.com/news/211561-utah-ag-calls-for-punitive-damages-caps

Here’s a link to an Italian blog which I believe is critical of the new Italian class action law.  Of course, not being at all proficient in Italian and having relied on the alta vista babelfish translator, I can’t rule out the possibility that the article is actually supportive of the law:

http://www.brunoleoni.com/nextpage.aspx?codice=6592

An Overlawyered contributor is unimpressed with the the relief being offered to members of a settlement class of video game purchasers…

http://www.overlawyered.com/2008/04/grand-theft-auto-roundup.html

… and see more analysis from GamePolitics.com

http://gamepolitics.com/2008/04/29/overlawyered-blog-doesnt-think-much-of-hot-coffee-class-action-settlement/

Blind Access Journal discusses a recent ruling by the United States District Court for the Norther District of California in a class action against the Social Security Adminstration requiring Braille, large text, audio, and other accommodations for blind SSA applicants and beneficiaries:

http://blog.blindaccessjournal.com/2008/04/federal-court-rules-against-ssa-for.html

RCRWireless Newsdiscusses a trend in Fair Credit Reporting Act (FCRA) class actions filed against mobile phone companies:

http://www.rcrnews.com/apps/pbcs.dll/article?AID=/20080423/FREE/171317762/1002/rss01

And finally, here is a prudent reminder from a blog called Musings of an Absent Mind that class action notices are not typically delivered by email chain letter:

http://rogue610.livejournal.com/69498.html

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A trial plan provides the judge with a road map for how the trial is expected to proceed.  Trial plans can be an effective pre-certification tool for both plaintiffs and defendants in class action lawsuits.  They can be as detailed or as generalized as the court requires and can cover a variety of issues, including bifurcation, the order of proceedings, which issues are to be resolved on a class-wide basis and which must be resolved individually, and what evidence will be presented at each stage of proceedings.

For defense counsel, asking the court to require the plaintiff to provide a trial plan illustrating the expected course of proceedings if the class is certified can help the defendant to persuade the court of practical manageability problems.  It may be one thing for the plaintiff to argue as an abstract matter that common issues predominate and that trial on a class-wide basis will be manageable, but having to provide a detailed description of how the case will proceed as a practical matter if the class is certified can expose weaknesses in these arguments.

On the other hand, voluntarily providing a specific trial plan can be also be an effective tool for plaintiffs in seeking class certification.  Provide a trial plan illustrating a reasonable and efficient process for resolving both common issues and any individualized issues can give even a skeptical court a level of comfort in certifying a class in the face of more abstract manageability arguments being raised by the defendant.

Trial plans have been used extensively in tobacco class action litigation both in decisions whether to certify a class and in decisions to decertify a class previously certified.  For examples, see here and here.

At least one state’s courts have held “that a trial plan is part of the rigorous analysis [c]ourts must perform . . . before ruling on class certification.’” North American Mortgage Co. v. Lee, No. 02-1050 (Tex. Dec. 17, 2004) (quoting Southwestern Refining Co. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000) (emphasis added)).  However, many state and federal courts will not by rule or on their own initiative ask for the submission of a trial plan as a matter of course in evaluating class certification.  Trial plans are not required under FRCP 23 or the similar rules of many states.

Even if a court does not require a trial plan in connection with class certification proceedings, it cannot hurt to suggest that the plaintiff be required to submit one in order to test manageability and predominance of common issues.  Ordering a trial plan is certainly something within a court’s inherent supervisory powers and its discretionary authority in managing class action proceedings under Rule 23(d).  Where manageability is suspect, forcing the issue by requiring a trial plan can help to illustrate manageability problems in a way that more generalized arguments in briefs may not make clear.

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I received my quarterly issue of CADSreport recently and finally had time to read it today.  Although many cynics may take the name literally, CADS is actually an acronym for the Class Action and Derivative Suits Committee, which is part of the ABA LItigation Section.  I hadn’t checked the CADS webpage in a while and was pleased to find that it has been updated with tons of great resources for class action lawyers.  You have to be a member of the Committee to view much of the content, but ABA Litigation Section membership entitles you to free membership in three Committees.  Among other resources, the Committee publishes an annual survey of each state’s class action law, which by itself is worth the cost of Litigation Section membership.

Click here for the Committee Webpage: http://www.abanet.org/litigation/committees/classactions/.  I have also added a permanant link on the sidebar to the right.

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The Institute for Legal Reform, an organization affiliated with the U.S. Chamber of Commerce, has issued its annual report ranking the lawsuit climates of each of the 50 States.  This report is an interesting resource for anyone who is interested in class action litigation and forum selection issues.  See the following link for the rankings and internal links to the full report:

http://www.instituteforlegalreform.com/states/lawsuitclimate2008/ 

The report is far from scientific and is based on the subjective responses of in-house lawyers in companies with annual gross revenues of at least $100 million.  However, as the executive summary concludes,

perception does become linked with reality. If the states can change the way litigators and others perceive their liability systems, we may find considerable movement in their rankings in the future. Once these perceptions change, the overall business environment may be deemed more hospitable as well.

One very interesting item in the report’s findings is that when respondents were asked to name the single most important issue facing state policymakers in reforming the legal system, speeding up the trial process was the factor most cited, beating out such factors as punitive damages and tort reform issues, eliminating unnecessary lawsuits, fairness and impartiality, and high litigation costs.  So, for anyone who believes that all corporate lawyers are interested more in delaying proceedings rather than letting the legal process run its course, the results of this survey provide some food for thought.

On a more predictable note, the report concluded that 41% of the respondents “view the fairness and reasonableness of state court liability systems in America as excellent or pretty good” while 55% viewed the systems as only fair or poor.”  In addition, 63% of respondents reported that “the litigation environment in a state is likely to impact important business decisions at their company, such as where to locate or do business, up from 57% in 2007.”  Executive Summary (Emphasis in original).

Another key point made by the report is that a state’s overall ranking may be influenced by the existence of one or two plaintiff-friendly magnet jurisdictions within the state.  Madison County, Illinois and Jefferson County, Texas, jurisdictions well-known to class action lawyers, are listed as examples.

Not surprisingly, corporate-friendly Delaware ranks as the best state in the survey, while West Virginia, home of the novel “reverse-bifurcation” procedure (see earlier entries here and here) in mass tort litigation, ranks last.

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Employers facing potential layoffs might find interesting a recent article in Workforce.com about the risk of potential class actions as a result of reductions in force.  The article addresses the EEOC’s stated strategy to increase class action filings against employers and provides tips on measures that can be taken to minimize class action exposure.

http://www.workforce.com/section/09/feature/25/45/73/254577.html

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Does a United States Circuit Court of Appeals decision not to review an order granting or denying class certification mean that the appellate court agreed with the class certification order?  Not necessarily.

Since 1998, Rule 23(f) of the Federal Rules of Civil Procedure has provided a way to seek appellate review of a federal district court’s grant or denial of class certification.  However, appellate review is completely discretionary.  The rule states that a “court of appeals may permit an appeal” of a class certification order if filed within 10 days.  FRCP 23(f) (emphasis added).  This means that before considering any of the issues raised on appeal, the court of appeals first considers whether to allow the appeal to go forward at all.  The court of appeals has “unfettered discretion whether to permit the appeal” and “[p]ermission to appeal may be granted or denied on the basis of any consideration that the court of appeals finds persuasive.”  Rule 23, comment to 1998 amendments. 

Thus, when a U.S. Circuit Court of Appeals denies permission to appeal a class certification order, the denial has no obvious meaning in terms of the ultimate resolution of the issues sought to be raised by the appeal.  Denial could mean that the court agrees with the underlying decision regarding class certification, but more likely it means that the court simply did not believe that it was necessary to resolve the issues on interlocutory (before trial and/or final judgment) review.   Normally, interlocutory issues may not be appealed at all, the exception to this rule being where interlocutory appeal is allowed by a specific statute or rule.  See 28 U.S.C. 1292.  As the 1998 comments to Rule 23 note, a Federal Judicial Center study “supports the view that many suits with class-action allegations present familiar and almost routine issues that are no more worthy of appellate review than many other interlocutory rulings.”  So, the fact of denial of a request under Rule 23 for review of a class certification order doesn’t mean that the court of appeals agrees with the substance of the order.

Any number of things can happen to a class certification order even if interlocutory review is denied.  The trial court can exercise its discretion under Rule 23(c)(1)(C) to alter or amend the order at any time.  Later proceedings at the trial court level, especially the development of key facts, can change the court’s decision on certification.  Alternatively, the parties may reach a settlement in which they agree to alter the class definition for settlement purposes, subject to the trial court’s approval.  Still another possibility is that the court of appeals may review a court’s pretrial class certification decision as part of an appeal after a final judgment is entered by the trial court, either as a result of a trial or as a result of other rulings on the merits of the claims.  The fact that a court of appeals denied permission to appeal a class certification decision before a final judgment does not bar it from considering those issues in an appeal taken as of right after the final judgment.  As a result, it is possible–although rarely do proceedings ever get this far in practice–for a trial court to grant certification, have a trial on the claims for which the class was certified, and enter judgment for or against the class, only to have the court of appeals later reverse the initial order granting class certification.

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Here are some blog posts of interest to class action lawyers from this past week.  Special thanks this week to Kimberly Kralowec of The UCL Practitioner and Scott Leviant of The Complex Litigator for adding links to ClassActionBlawg.com on their blogrolls…

The Complex Litigator critiques the continued use of coupon settlements in class action settlements:

http://thecomplexlitigator.typepad.com/my_weblog/2008/04/coupon-only-set.html

The UCL Practitioner summarizes the latest decision on what constitutes restitution recoverable under the California UCL and Proposition 64:

http://www.uclpractitioner.com/2008/04/new-ucl-restitu.html

Carlton Fields’ Class Action Blog highlights the recent Florida Court of Appeals decision in Nelson v. Wakulla County, — So. 2d –, 2008 WL 1774184 (Fla. 1st DCA April 21, 2008), upholding a trial court’s rejection of a proposed class action settlement–a must read for anyone getting ready to finalize a class action settlement.

http://www.carltonfields.com/classactionblog/blog.aspx?entry=211

The D&O Diary reviews a recent paper by Columbia Law School Professor John Coffee regarding the impact of opt outs in securities class actions …

http://www.dandodiary.com/2008/04/articles/optouts/class-action-optouts-the-impact-of-competition-on-securities-lawsuit-resolution/

… and discusses the latest trend in subprime-related class actions:

http://www.dandodiary.com/2008/04/articles/subprime-litigation/auction-rate-preferred-securities-whats-next-in-subprime-litigation/

SCOTUS Blog provides an interesting analysis of a petition for writ of certiorari in class action litigation brought against various companies who allegedly aided and abetted the Government of South Africa during the apartheid era.

http://www.scotusblog.com/wp/conference-call-companies-want-apartheid-case-tossed/

See this discussion in Appellate Review regarding a split in the federal Circuit Courts of Appeals on whether post-filing events can change whether a class action is removable under the Class Action Fairness Act:

http://coareview.blogspot.com/2008/04/split-noted-can-events-after-filing-of.html

Class Action Defense Blog offers a summary of a recent Seventh Circuit Court of Appeals decision resolving Fair Credit Reporting Act (FCRA) issues arising in three would-be class action lawsuits.

 http://classactiondefense.jmbm.com/2008/04/fcra_class_action_defense_case_3.html

See an April 22 entry in How Appealing for a link to a recent Third Circuit Court of Appeals decision regarding the impact of filing a motion for reconsideration on the deadline for seeking interlocutory review of a class certification order:

http://howappealing.law.com/

Thanks to the folks at Drug and Device Law Blog for posting a link to a great article last week in The Mass Tort Litigation Blog.  The article comments on oral arguments given before the United States Supreme Court in a case involving intriguing issues of non-class-action virtual representation and nonparty preclusion:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/04/taylor-v-sturge.html

Wage Law, The California Wage and Hour Law Weblog summarizes a recent California Court of Appeal decision permitting precertification discovery for the purpose of identifying potential class members who might be suitable replacements for a class representative who lacked standing:

http://wagelaw.typepad.com/wage_law/2008/04/supreme-court-d.html

Mortgage Fraud Blog reports on a recent decision by the United States District Court for the Eastern District of Pennsylvania dismissing a mortgage fraud class action complaint filed against several banks for allegedly failing to supervise and monitor a mortgage broker:

http://www.mortgagefraudblog.com/index.php/weblog/permalink/judge_dismisses_lender_from_mortgage_fraud_suit/

Perilocity predicts class action lawsuits against software vendors arising out of identify theft:

http://riskman.typepad.com/perilocity/2008/04/class-action-co.html

Disgusted Beyond Belief vents articulately about common political criticisms that class action lawsuits are generally frivolous and benefit only greedy lawyers and not consumers…

http://disgustedbeyondbelief.blogspot.com/2008/04/class-action-lawsuits.html

…but the folks at Overlawyered might disagree, as they reiterate their criticism of would-be class action lawsuits filed against Coke in commenting on a recent Missouri Supreme Court decision rejecting class certification in Diet Coke artificial sweetener case:

http://www.overlawyered.com/2008/04/update-diet-coke-sweetener-cla.html

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There have been a variety of recent news reports about a trial that began today in a “class action” lawsuit against the United States Department of Veterans Affairs, or VA.

The case, now captioned Veterans for Common Sense v. Peake, was filed by two nonprofit groups on behalf of veterans of the Iraq and Afganistan wars and earlier conflicts alleging systemic problems in the VA’s system of providing healthcare services and admistering benefits for veterans with Post Traumatic Stress Disorder (PTSD) and other mental illnesses.  Among the allegations is that delays in the processing of claims and other problems with claims handling and appeals of the denials of those claims have contributed to an “epidemic of suicides” among affected veterans.  A two-week trial to the court began today before Judge Samuel Conti of the United States District Court for the Northern District of California in San Fransisco.  The plaintiffs seek injunctive relief including supervision over VA healthcare services and the administration of VA benefits, including the appointment of a special master to oversee the handling of claims.  The claims appear to include constitutional due process claims and statutory claims under specific federal laws providing for veterans’ medical benefits.  Trial is to the court rather than to a jury because the plaintiffs are seeking an injunction and not money damages.

From a class action practitioner’s perspective, perhaps the most interesting aspect of the case is the fact that it is not a class action at all.  According to a report on Law.com (click here), the case was originally filed as a class action but the plaintiffs’ attorneys ultimately made a strategic decision not to seek class certification.  Rather than seeking certification on behalf of a class of veterans, plaintiffs’ counsel decided to proceed solely on behalf of two nonprofit veterans’ advocacy groups, Veterans for Common Sense and Veterans United for Truth.  In an order dated January 10, 2008, Judge Conti had previously denied the government’s motion to dismiss on the ground that the two groups lacked standing to sue.  (Copy of January 10, 2008 Order).  Rejecting the government’s argument that the two groups were mere advocacy groups who could not sue by themselves without the participation of individual veterans, the court held that the two groups had organizational standing under the principles outlined by the United States Supreme Court in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000) and Warth v. Seldin, 422 U.S. 490, 511 (1975).  Under these principles, an association may sue on behalf of its individual members if

its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Friends of the Earth, 528 U.S. at 181.  In turn, the participation of individual members is not required when its members face “immediate or threatened injury” as a result of the challenged action and “the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause.”  Warth, 422 U.S. at 511.  In applying these standards, the court concluded that

[g]iven the nature of Plaintiffs’ claims, especially in regard to the allegations of systemic legal violations, the Court, at this stage, is not convinced that the individual participation of each injured party will be indispensable to the present action. Plaintiffs’ due process claim will depend largely on the claims adjudication procedures enacted under the VJRA, and not necessarily on individual veteran’s claims. The same is true regarding Plaintiffs’ access to the courts claim. Plaintiffs’ claim for denial of statutorily mandated health care can satisfy this standing requirement if, for example, Plaintiffs demonstrate that the current system under the VJRA leads to system-wide denials of this health care or if the VA fails to recognize and treat PTSD within this two-year period.

January 10, 2008 Order at 6.  However, the Court also suggested that this decision might be subject to later change should future events make clear that the participation of individual veterans would be required.  Presumably, this means that the representative nature of the lawsuit is subject to additional argument and evidence at trial, in addition to the merits of the plaintiffs’ claims.

Copies of the various pleadings, orders, and other filings in the case are available at a website provided by the plaintiff organizations (click here).

Other various articles discussing the case are listed below:

http://www.mercurynews.com/news/ci_9004226

http://news.bbc.co.uk/2/hi/americas/7357909.stm

http://www.reuters.com/article/asiaCrisis/idUSN18393680

http://www.opednews.com/articles/genera_jason_le_080421_va_confirms_18_vets_.htm

http://abclocal.go.com/kgo/story?section=news/local&id=6094234

http://www.fogcityjournal.com/wordpress/2008/04/19/veterans-claims-of-inadequate-care-goes-to-trial-monday/

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/02/05/MNQLUQ4IS.DTL&hw=veterans&sn=001&sc=1000

http://www.commondreams.org/archive/2008/01/17/6440/

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As the European Union and individual EU countries consider potential reforms for dealing with mass and class action lawsuits (see my previous entries here and here), Canadian class actions are becoming more similar to those in the United States, according to an April 18 report in Canadian Underwriter.ca. The article remarks that significant increases in contingent fee awards in recent Canadian class actions have led to an increase in lawyer-driven lawsuits as opposed to those that are consumer-driven or driven purely by altruistic motives. 

Fair or not, it is clear that many outside the U.S. view the U.S.-style class action system as being driven exclusively by lawyers and greed.  Combating this perception should be an important goal as we consider potential reforms in our own state and federal courts.  Our class action system shares with those being developed considered in other countries the noble objectives of discouraging corporate or government abuse and adequate compensation of consumers.  However, those of us who practice in the U.S. realize that our system is a complex one that has developed over many decades.  Procedures intended to discourage widespread abuse and promote compensation of victims have to be accompanied by incentives for championing those intrests, and they must also be tempered by due process protections of the rights of potential defendants.  Attempts at reform may not always have their desired result.  (See this entry on the latest FJC report on CAFA).  It will be interesting to track new procedures and reforms that are chosen in other countries who have far less experience and history with mass or class actions.  On the one hand, they may have the advantage of being able to start from scratch without having to face pushback from entrenched governmental, institutional, and private interests in maintaining an existing system.  On the other hand, they lack the decades of analysis, testing, and tweaking that our system has undergone.

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