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Archive for January, 2009

I’m still on the road with plans to return to Denver later today, but in the interest of keeping the loyal reader completely up to date on the latest in class action news, here are a couple of quick items:

This Vancouver Sun article summarizes a NERA Consulting report on trends in securities class action litigation continues to rise in Canada.

The Scranton Times Tribune reports that class action lawsuits are being “mulled” by a nonprofit organization and a trial lawyer in the wake of a kickback scandal involving two juvenile court judges.  For related news, see this Overlawyered entry, Class action law firm announces “investigation.”

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I’m on the road this week with limited time to blog, but for those of you who are desparate for class-action related news and opinion, here are a pair of interesting op-eds about tort reform issues from The Examiner:

First, this editorial by Quin Hillyer discusses efforts in several states to pass tort reform measures that the author claims have improved state economies by curbing “jackpot justice” in “judicial hellholes.”

http://www.dcexaminer.com/opinion/columns/QuinHillyer/Class-action_lawsuit_reform_progresses_in_states_012709.html

And this staff editorial discusses an AAJ proposal to create what the author thinks will be a “lawsuit czar.”

http://www.dcexaminer.com/opinion/Good_grief_-_now_the_trial_lawyers_want_a_White_House_lawsuit_czar_012609.html

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Here are some blog posts from the week that was that might be of interest to class action practitioners:

Class Action-Related Post of the Week

Debbie Schlussel does not think too much of a class action settlement offering “victims” free makeup and perfume that the named plaintiffs’ claimed cosmetics companies cheated them out of in an alleged price-fixing scheme.  She offers this entertaining rant about the case, the settlement, and the legal system in general: 

http://www.debbieschlussel.com/archives/2009/01/forget_the_o-na.html

Welcome to the Class Action Blogosphere

Class action defense lawyer and Skadden Arps partner J Russell Jackson is making waves in the class action blogosphere with a new blog aptly called Jackson on Consumer Class Actions & Mass Torts.  Here’s a recent entry summarizing a Massachusetts federal court’s decision not to give collateral estoppel effect to a state court’s class certification order:

http://www.consumerclassactionsmasstorts.com/2009/01/articles/nuisance/federal-court-refuses-to-give-collateral-estoppel-effect-to-state-court-class-certification-order/

Class Action Decisions

The UCL Practitioner summarizes a Ninth Circuit Court of Appeals refusing to enforce a forum selection clause that would have required that California consumer protection claims be litigated in Virginia, a state without a class action procedure:

http://www.uclpractitioner.com/2009/01/ninth-circuit-refuses-to-enforce-forum-selection-clause-in-uclclra-case-ramkissoon-v-aol-llc.html

Class Action Defense Blog reviews a Missouri appellate court decision upholding a trial court’s order striking down the waiver portion of a class arbitration waiver and compelling arbitration.

http://classactiondefense.jmbm.com/2009/01/_class_action_defense_caseswoo.html

CAFA Law Blog cites a New Jersey federal court’s decision in offering practical advice on when it might be appropriate to ask a court to render a decision on whether federal jurisdiction was appropriate under the Class Action Fairness Act (CAFA):

http://www.cafalawblog.com/-case-summaries-party-tells-judge-hurry-up-and-rule-on-cafa-jurisdiction-judge-tells-party-hurry-up-and-produce-some-evidence.html

Spam Notes analyzes a Louisiana federal court’s decision dismissing a variety of different state and federal claims in a privacy class action involving allegations of a breach of private information when tax returns were left in a dumpster:

http://spamnotes.com/2009/01/15/federal-judge-rejects-privacy-class-action-against-hewitt-tax-services.aspx

Wage Law summarizes a California Court of Appeal decision reversing a denial of class certification on ascertainability of class membership grounds:

http://www.californiawagelaw.com/wage_law/2009/01/medrazo-cert-denial-reversed.html

Class Action Trends

Drug and Device Law Blog offers an abstract of and link to an article co-authored by one of its contributors, Mark Hermann, entitled: “Making Class Actions Work: The Untapped Potential of the Internet,” 69 U. Pitt. L. Rev. 727 (2008).

http://druganddevicelaw.blogspot.com/2009/01/using-internet-to-improve-class-actions.html

Classified offers periodic posts with class action-related news and trends, including a link to an article from CCH Wall Street reporting on a rise in Securities class actions.

http://www.carltonfields.com/classactionblog/blog.aspx?entry=249

http://www1.cchwallstreet.com/ws-portal/content/news/container.jsp?fn=01-13-09

See this January 23 Point of Law entry for an abstract an article by James Cox, Randall Thomas and Lynn Bai entitled “Do Differences in Pleading Standards Cause Forum Shopping in Securities Class Actions?”

http://www.pointoflaw.com/archives/2009/01/do-differences.php

Class Action News

The D&O Diary reports on recent events related to several high profile subprime-related class actions and securities scandals:

http://www.dandodiary.com/2009/01/articles/subprime-litigation/the-bofamerrill-deal-losses-disclosures-and-lawsuits/

The Complex Litigator provides an update on proceedings before the California Supreme Court in the wage and hour class action Brinker Restaurant v. Superior Court:

http://www.thecomplexlitigator.com/2009/01/view-the-opening-brief-submitted-in-brinker-restaurant-v-superior-court.html

Gabe’s Guide to the e-Discovery Universe has breaking news an a highly publicized scandal involving the CEO of an Indian security company that has become the target of several class actions:

http://gabesguide.com/?p=2309

Class Action Cinema?

Securities Docketshowcases a new video produced by the Professional Liability Underwriting Society entitled “The Rise and Fall of Bill Lerach.”

http://www.securitiesdocket.com/2009/01/21/video-the-rise-and-fall-of-bill-lerach/

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Here is a follow up on a story of interest to anyone following the development of class and collective action procedures in developing markets.  As reported yesterday by the Winston-Salem Journal a new product liability lawsuit has been filed against 22 dairies in the Supreme People’s Court in Beijing on behalf of alleged victims of baby formula tainted with the toxic chemical melamine.  The move follows unsuccessful attempts to pursue collective actions in the lower courts for redress to children who were sickened or killed by the tainted milk  (see this November ClassActionBlawg entry).  According this Reuters article today by Emma Graham-Harrison,

The highly unusual intervention is within the court’s power, said Xu Zhiyong, one of the lawyers who submitted it, but added that they held little hope of it succeeding.

The Chinese Government’s official web portal describes the powers of the Supreme People’s Court as including:

Conducting trial of the following cases: first-hearing cases placed with the SPC by laws and regulations and those the SPC deems within its jurisdiction.

Source: Gov.cn (emphasis added).  (I’m by no means a Chinese law expert, but to my untrained eye this appears to say that the court can take any case if it feels like it.)

Efforts to seek collective relief in the Chinese courts reportedly have met repeated resistance from the government.  Immediately after the incident, officials tried to discourage resort to the Courts with the promise of government assistance.  (See this October 1, 2008 ClassActionBlawg entry).  According to Graham-Harrison’s article, parents of children allegedly poisoned were detained when they tried to attend the trial of executives of one of the companies accused of selling the tainted milk.  Graham-Harrison echoes the observations of previous commentators that the ruling Communist party’s influence over the courts has frustrated attempts to use the courts as a means of pursuing collective redress.

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Karen Sloan authored this January 21 article in The National Law Journal (available at Law.com) summarizing a recent report by Chicago employment defense firm Seyfarth Shaw summarizing trends in employment-related class and collective actions in 2008. 

The NLJ article’s summary offers the not-so-surprising conclusion that the poor economy is helping to fuel a surge in class and collective actions filed under both state and federal labor and anti-discrimination laws as well as ERISA. 

The report, which is available only upon request to the firm’s clients and other employers, is apparently 655 pages long and analyzes 650 decisions.  A preview of the report is available at the firm’s website, along with a link to an introductory section of the report.   The introduction offers a summary of trends, including the insight that workplace class actions are becoming increasingly more complex, as claims under multiple state and federal employment and labor laws with differing procedural requirements are being combined in the same case.

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CABWR is finally back after a three week holiday hiatus!  Here are some blog posts from the week that was that might be of interest to class action practitioners:

Class Action Decisions

CAFA Law Blog discusses a Fifth Circuit Court of Appeals decision addressing jurisdiction under the Class Action Fairness Act (CAFA) before reversing class certification in a case alleging violations of the federal Telephone Consumer Protection Act (TCPA):

Class Action Defense Blog summarizes a California appellate court decision reversing a trial court’s decision to deny certification after concluding that it would be necessary to make a determination on the merits to ascertain class members and evaluate numerosity:

http://classactiondefense.jmbm.com/2009/01/class_action_defense_cases_gha.html

Classified comments on a Florida decision upholding a class certification order where the lack of a hearing transcript left the appellate court with no way to analyze the evidence considered by the trial court in reaching its decision:

http://www.carltonfields.com/classactionblog/blog.aspx?entry=246

Folo comments on an opinion by Seventh Circuit Court of Appeals Judge Richard Posner, who has some harsh words for attorneys for objectors to a class action settlement who sought an attorney fee award for what the Judge did not consider a significant contribution to the outcome of the case:

http://www.folo.us/2008/12/30/this-case-is-finito/

The UCL Practitioner summarizes a Seventh Circuit Court of Appeals decision discussing the removability under CAFA of securities class actions filed under section 22(a) of the Securities Act of 1933:

http://www.uclpractitioner.com/2009/01/7th-circuit-makes-it-harder-for-plaintiffs-to-keep-securities-class-actions-in-state-court.html

Class Action Trends

Drug and Device Law Blog discusses the phenomena of “global coordinating counsel” and its rise from marketing ploy to reality as class action and related procedures become more developed around the world:

http://druganddevicelaw.blogspot.com/2009/01/new-meaning-of-global-coordinating.html

Mass Tort Litigation Blog discusses the “multi-faceted” nature of mass tort litigation in an article that includes a discussion of federal judge Jack Weinstein treating MDL litigation and settlement of pharmaceutical products liability claims as a “quasi-class action”:

http://lawprofessors.typepad.com/mass_tort_litigation/2009/01/todays-14-billi.html

Securities Docket summarizes a Manhattan Institute report on a trend in Louisiana public pension funds serving as lead plaintiffs in securities class actions:

http://www.securitiesdocket.com/2008/12/28/manhattan-institute-finds-la-pension-funds-most-active-lead-plaintiffs-in-securities-cases/

The D&O Diary summarizes the year in securities litigation from 2008…

http://www.dandodiary.com/2009/01/articles/securities-litigation/a-closer-look-at-the-2008-securities-lawsuits/

… and The Race to the Bottom offers observations about the modest nature of the increase in securities class actions in light of the financial crisis:

http://www.theracetothebottom.org/home/the-trend-in-securities-class-action-lawsuits.html

The Daily Insurer discusses a recent report by Seyfert Shaw LLP summarizing trends in employment class action litigation:

http://dailyinsurer.blogspot.com/2009/01/class-action-litigation-analyzed-in-new.html

Class Action Commentary

Point of Law provides an abstract of a student note by James McDonald in Duke Law Journal entitled “Milberg’s Monopoly: Restoring Honesty and Competition to the Plaintiffs’ Bar”:

http://www.pointoflaw.com/archives/2009/01/milbergs-monopo.php

Wage Law discusses claims-made settlements and reversions in wage and hour class actions and whether unclaimed funds escheat to the state:

http://www.californiawagelaw.com/wage_law/2009/01/more-on-reversions-and-claims-made-settlements.html

Pro Football Talk comments on the facts of a class action filed on behalf of retired players against the NFL Players’ Association for for breach of fiduciary duty, which was recently tried to a jury verdict in the retirees’ favor:

http://www.profootballtalk.com/2009/01/13/ruling-in-nflpa-class-action-sheds-light-on-what-the-union-did-allegedly-to-retired-players/

Class Action News

The Complex Litigator reports on the California Supreme Court’s decision to grant review in the wage and hour class action Brinkley v. Public Storage, Inc., Sup. Ct. Case No. S168806:

http://www.thecomplexlitigator.com/2009/01/breaking-news-review-granted-in-brinkley-v-public-storage-inc.html

Class Action Previews. Predictions, and Hopes for 2009

North Carolina Business Litigation Report previews the year ahead for the North Carolina Business Court, including a discussion of class actions:

http://www.ncbusinesslitigationreport.com/2009/01/articles/watching-the-court/the-year-ahead-in-the-north-carolina-business-court/

New look Overlawyered has a post proposing a good idea for a consumer class action that it’s author predicts will be filed by some plaintiffs’ firm in 2009:

http://overlawyered.com/2008/12/a-prediction-for-2009/

Law and More has hopes for “juicy corporate class action litigation” in 2009:

http://lawandmore.typepad.com/law_and_more/2009/01/needed-juicy-corporate-classaction-litigation.html

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If my recent post about the upcoming January 20, 2009 Class Action Law Monitor/Strafford Publications CLE on Rule 23(f) appeals didn’t convince you to sign up, perhaps this preview of the speakers and topics will:

I.                   Key features of Rule 23(f) (Barry Sullivan, Partner, Jenner & Block, Chicago)

A.    No automatic right to appeal 

B.     No automatic stay of district court proceedings

C.     Appeal must be filed within 10 days of class certification order

 

II.                Case law addressing Rule 23(f) (Cindy D. Hanson, Partner, Kilpatrick Stockton, Atlanta)

A.    “Death knell” cases and “reverse death knell” cases

B.     Appeal raises fundamental and unsettled legal issue

C.     Clear error in district court ruling

D.    “Sliding scale” standard

 

III.             Strategies for pursuing appellate review of class certification decision (Paul G. Karlsgodt, Partner, Baker Hostetler, Denver).

 

IV.             Strategies for challenging motion for appellate review of class certification (Steve W. Berman, Managing Partner, Hagens Berman Sobol Shapiro, Seattle)

 

My handout materials are available here: rule-23f-presentation-final

For the other speakers’ handouts, see this link (and while you’re at it, why not sign up?)

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Every once in a while I actually open one of those seemingly hundreds of spam emails that I get from legal publishers each week.  Today, I had the even rarer occasion to come across one that was advertising a resource I might actually use. 

The resource in question is a website called The Robing Room, operated by North Law Publishers, Inc.  With the tagline, “where judges are judged,” The Robing Roomis a forum for lawyers, litigants, and members of the public to provide anonymous feedback and commentary on various aspects of a judge’s performance, including the judge’s temperament, competence, intellectual ability, and even-handedness.  Judges are rated on an overall scale from 1 to 10.  Viewers can also see specific comments provided by other users.  Users who comment are identified by whether they are a lawyer, litigant, or other, and if a lawyer, by type of practice.  Ratings are available for many federal district court judges and magistrates, as well as state court judges in selected states.

Of course, like any other online forum, the ratings and comments have to be taken with a huge grain of salt.  The rating methodology is not–as far I can tell–scientific.  The anonymous nature of the site means that any nut job with an axe to grind can give a judge an unfair review.  Conversely, any judge who wants to boost his or her ratings can no doubt find ways to improve them with the help of a few friends.  However, with those caveats, the site could provide helpful information that, used in connection with other resources, can be of some strategic benefit for a lawyer or litigant faced with an unfamiliar judge.

Colorado practitioners will be familiar with the Commissions on Judicial Performance, which also uses feedback from lawyers, litigants, and members of the public to review the performance of judges, for the purpose of recommending whether or not they be retained in retention elections.  The Robing Room appears to have added Colorado state judges only fairly recently, so there isn’t enough data yet to analyze whether its ratings are at all similar with the feedback provided by the Commissions.  Lawyers or parties facing litigation in Colorado would be well-served to consult both sources in researching a judge.

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In a sign that plaintiffs’ class action lawyers are becoming more powerful than ever, the following quote appeared in an article in today’s issue of The Economic Times:

Class actions are very strong in the US and are pretty serious in terms of penalties and imprisonment.

In fairness, something in the quote may have been lost in translation, but just to set the record straight, imprisonment is generally not an available remedy in a U.S. class action.  The article was quoting an Indian lawyer describing the U.S. system for an Indian audience.  It looks like what he was trying to convey is that class actions often come as a result of revelations of corporate fraud that may also lead to regulatory and criminal action, which is where penalties and imprisonment might come into play.

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If you’re looking for a fun-filled way to spend a Tuesday lunch hour and need CLE credits, check out Strafford Publications’ upcoming CLE Teleconference Rule 23(f) Class Certification Appeals: Strategies for Pursuing or Opposing Appellate Review in the Absence of Clear Standards.  The fun will begin on January 20, 2009 at 1PM Eastern.  For more information and to register, follow this link.

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