If you really have been waiting in anticipation for this post, you really should consider therapy.  However, when I began my extended hiatus in June, I did promise to resume blogging this fall, and I am a man of my word.  That, and my life has recently returned to some semblance of normalcy after I had two nationwide class actions go away in a two-week period.

So, the time has come to start blogging about the exciting world of class action litigation once again.  I’m in the process of dusting off the cobwebs, and you should expect to see some real content over the next few days.  I have even managed to attract a guest contributor.  So, if you weren’t on the edge of your seat before, you should be now.  Stay tuned…

Yours truly,

Paul Karlsgodt

• 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!

Class Action-Related Post of the Week

This entry from Wage Law about a conversation overheard between two judges in a coffee shop discussing a ”sweetheart deal” that had been proposed in a class action pending before one of them says volumes both about the need for discretion by judges and lawyers alike in discussing their cases in public places and also the need for class action lawyers on both sides to do their homework before submitting a proposed settlement for court approval:

http://wagelaw.typepad.com/wage_law/2008/09/hearsay.html

Class Action Decisions

The Indiana Blog, How Appealing, and Corporate Legal Times, are among the many legal blogs that commented on the Seventh Circuit Court of Appeals’ decision disallowing a class action claim for rescission of a mortgage under the Truth in Lending Act (TILA) (See CAB entry here):

http://indianalawblog.com/archives/2008/09/ind_decisions_m_286.html

http://howappealing.law.com/093008.html#030528

http://www.cltmag.com/mortgage-lenders-fight-off-rescission-class-action-in-7th-circuit.html

The Complex Litigator and The UCL Practitioner review a California Court of Appeal decision addressing what constitutes an impermissible merits determination in ruling on a motion for class certification:

http://www.thecomplexlitigator.com/2008/09/hewlett-packard.html

http://www.uclpractitioner.com/2008/10/new-class-certi.html

Class Action Defense Blog provides a synopsis of a California Court of Appeal reversing a denial of class certification on the ground that a lower court’s orders precluding certain discovery, including discovery of contact information for other putative class members, prevented the plaintiffs from meeting their burden of demonstrating commonality and typicality:

http://classactiondefense.jmbm.com/2008/09/class_action_defense_caseslee_1.html

Classified provides summaries of several recent decisions by federal district courts in Florida on a variety of class action-related issues including proof of amount in controversy for CAFA removal, the res judicata effect of a summary judgment order in a prior class action, and reliance as an element of a claim under the Florida Deceptive and Unfair Trade Practices Act:

http://www.carltonfields.com/classactionblog/ (see entries dated September 28)

Business Spectator reports on the dismissal of a class action filed by Iraqi citizens in a New York federal court against an Australian company for its alleged acts of bribery and other unlawful conduct in connection with a UN food-for-oil program:

http://www.businessspectator.com.au/bs.nsf/Article/Third-class-action-against-AWB-in-US-dismissed-JZAV9?opendocument&src=rss

EDTexWeblog.com provides a summary of a decision by the U.S. District Court for the Eastern District of Texas dismissing a class action brought under the Drivers’ Privacy Protection Act (DPPA):

http://mcsmith.blogs.com/eastern_district_of_texas/2008/09/drivers-privacy-protection-act-dppa-class-action-dismissed.html

planadvisor discusses an Illinois federal court’s order granting class certification in an ERISA class action involving allegations of excessive fees and other breaches of fiduciary duty in administering a 401(k) plan:

http://www.planadviser.com/article.php/2933

Green Buckeye RN discusses a West Virginia federal court’s decision not to certify a class in a mass tort case filed on behalf of a would-be class of residents of a city whose water was allegedly contaminated by the defendant’s pollution:

http://greenbuckeyern.wordpress.com/2008/10/02/the-charleston-gazette-judge-rejects-c8-class-action-case-against-dupont/

Overlawyered reports on the dismissal of a New York lawsuit brought on behalf of a would-have-been class of men seeking to hold “Ladies Night” discounts unconstitutional:

http://overlawyered.com/2008/09/ladies-nights-a-win-for-nyc-clubs/

Class Action Scandals

Dallas Blog reports on the guilty plea of the last defendant to face charges in connection with the Milberg Weiss kickback scandal:

http://www.dallasblog.com/200809301003674/john-browning-s-legally-speaking/a-class-action-act.html

 Class Action Settlements

Good Morning Silicon Valley discusses a cy pres award from an class action settlement involving alleged unpaid overtime against a video game manufacturer that went to pay for scholarships for students studying video game design:

http://blogs.siliconvalley.com/gmsv/2008/09/class-action-helps-fund-class-action.html

Enough links to an entry from The Real Battle in Seattle discussing a movement by protesters arrested during the 1999 WTO meetings in Seattle to donate proceeds from a class action verdict to fund global justice projects:

http://www.enoughenough.org/blog/59/returning-class-action-funds-to-the-global-justice-movement/

http://www.realbattleinseattle.org/node/71

Class Action (and Related) News

Slashdot is one of many non-law blogs to comment on a class action filed against a video game manufacturer for allegedly including undisclosed invasive copy protection software in its video games that could not be uninstalled:

http://games.slashdot.org/article.pl?sid=08/09/24/1939256&from=rss

SCOTUS Blog previews an upcoming oral argument in a case brought by public-sector union members on behalf of a proposed class seeking to hold unconstitutional certain public-sector union service fees earmarked for litigation on behalf of affiliated collective bargaining units:

http://www.scotusblog.com/wp/scotuswiki-preview-locke-v-karass/#more-7970

Class Action Trends

The D&O Diary considers whether a recent New York federal court’s order dismissing a pre-subprime crisis case involving alleged failure to disclose risky investments may portend an end to subprime-related securities litigation:

http://www.dandodiary.com/2008/09/articles/securities-litigation/does-dismissal-foreshadow-subprime-litigation-culmination/

Canadian attorney Daniel A. Lublin discusses the potential benefits of bringing a group of individual wrongful dismissal claims rather than pursuing a class action:

http://blog.toronto-employmentlawyer.com/toronto_employment_lawyer/2008/09/class-action-la.html

The Consumerist showcases the latest website dedicated to providing information about class action settlements:

http://consumerist.com/5054244/find-class-action-settlements-at-topclassactionscom#c7958619

Class Action Commentary

Drug and Device Law Blog and Point of Law summarize a recent National Law Journal article by Michigan Law Professor Adam Pritchard discussing a possible mechanism for companies to unilaterally insulate themselves from certain securities class actions:

http://druganddevicelaw.blogspot.com/2008/10/end-of-securities-fraud-class-actions.html

http://www.pointoflaw.com/archives/2008/10/basic-inc-v-lev.php

This student post from The Race to the Bottom summarizes developments in the last of the securities fraud cases pending in the U.S. District Court for the Southern District of New York involving Italian dairy company Parmalat:

http://www.theracetothebottom.org/home/parmalat-claims-dismissed-against-banks-auditors-and-attorne.html

CAFA Law Blog answers reader mail with commentary on the applicability of the diversity jurisdiction provisions of Class Action Fairness Act (CAFA) to both removal and original jurisdiction:

http://www.cafalawblog.com/-resources-cafa-law-blog-mail-bag-an-inquiry-from-one-of-our-readers.html

The Deal Sleuth offers a defense of securities class action lawsuits:

http://thedealsleuth.wordpress.com/2008/09/24/in-defense-of-shareholder-class-actions/

Robert Galoppini’s Commercial Open Source Software makes an apt quote to Shakespeare in reporting on the position taken by several consumer associations in an amicus brief filed in a case involving alleged copyright infringement by the maker of a technology capable of both infringing and noninfringing technologies (referred to as “multi-use technologies”):

http://robertogaloppini.net/2008/09/29/peer-to-peer-demonization-a-class-action-in-favor-of-multi-use-technologies/

The Lighter Side of Class Actions

Internet Monk announces a “class action” against the publisher of a new study Bible for mental anguish in causing great anticipation for its publication…

http://www.internetmonk.com/archive/van-til-announces-class-action-lawsuit-against-justin-taylor-for-cruelty-and-abuse-of-bibliophiles

… and draws a response from the “defendant”

http://theologica.blogspot.com/2008/09/class-action-lawsuit-against-your.html

Class Action Decisions

For a “brief” commentary on a case addressing the removability under the Class Action Fairness Act (CAFA) of a class action counterclaim by a plaintiff/counterclaim defendant, see this guest commentary from Dallas attorney Jonathan Bridges on CAFA Law Blog:

http://www.cafalawblog.com/-case-summaries-guest-commentary-fourth-circuit-to-decide-whether-to-let-att-pull-up-its-shorts-class-action-to-federal-court.html

Class Action Defense Blog summarizes a Fifth Circuit Court of Appeals decision holding that a state’s parens patriae action brought on behalf of its citizens was removable under CAFA:

http://classactiondefense.jmbm.com/2008/09/cafa_class_action_defense_case_19.html

Mass Tort Defense summarizes a Kentucky federal court decision denying class certification in a toxic tort lawsuit in part based on plaintiffs’ ability to articulate an appropriate class definition:

http://www.masstortdefense.com/2008/09/articles/federal-court-rejects-toxic-tort-class-action/

Consumer Law & Policy Blog summarizes a September 8, 2008 decision of the Eighth Circuit Court of Appeals applying Missouri law in upholding a class arbitration ban in a consumer class action involving prepaid gift cards:

http://pubcit.typepad.com/clpblog/2008/09/eighth-circuit.html 

Class Action Commentary

Training Marketer discusses potential impacts from a class action settlement involving claims under the Americans with Disabilities Act (ADA) seeking access to a retail store’s website for persons with disabilities…

http://trainingtime.wordpress.com/2008/09/15/target-settles-class-action-ada-lawsuit-is-your-site-compliant/

… more on providing online access to visually impaired users from That Credit Union Blog…

http://thatcreditunionblog.wordpress.com/2008/09/16/providing-online-accommodations-for-the-visually-impaired/

… and The Industry Standard:

http://www.thestandard.com/news/2008/09/15/target-pact-wont-lead-web-access-standards

The Defense Base Act Blog discusses possible impacts that the Defense Base Act could have on pending class action litigation involving claims that a company’s acts of not training its employees properly for work in Iraq has led to injuries to other employees:

http://defensebaseactblog.com/2008/09/12/will-the-defense-base-act-foil-the-recent-class-action-law-suit-against-kbr/

Class Action Scandals

Health Care Renewal comments on the University of Minnesota’s recruitment of a health insurance company executive who resigned in the wake of a stock option backdating scandal:

http://hcrenewal.blogspot.com/2008/09/university-of-minnesota-courts-mcguire.html

Class Action Reform

Watchdog Blog endorses proposed legislation that would prohibit class arbitration waivers in credit card agreements:

http://citizen.typepad.com/watchdog_blog/2008/09/arbitration-wil.html

Class Action Settlements

Overlawyered updates earlier commentary on a $688 million attorneys fee awarded in an Enron class action settlement:

http://overlawyered.com/2008/09/coughlin-stoia-amlaw-daily-and-prof-john-coffee-contd/

The Consumerist reports on frustrations in trying to participate in a class action settlement after receiving notice:

http://consumerist.com/5048989/join-the-verizon-etf-class-action-if-they-would-only-let-you

Class Action (and Related) Scholarship

California Punitive Damages provides a synopsis and brief commentary on a recent scholarly work entitled “Punitive Damages and Class Actions” written by Professors Fransesco Parisi (Minnesota) and Marta Cenini (Milan)…

http://calpunitives.blogspot.com/2008/09/law-review-article-punitive-damages-and.html

… and more on the same article from Mass Tort Litigation Blog:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/09/parisi-and-ceni.html

Point of Law reviews a paper entitled “The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?” authored by Cardozo Law Professor Lester Brickman:

http://www.pointoflaw.com/archives/2008/09/brickman-of-1-m.php#more

Wage Law recommends the paper “Class Certification in the Age of Aggregate Proof” by Vanderbilt Professor Richard A. Nagreda:

http://wagelaw.typepad.com/wage_law/2008/09/class-certification-in-the-age-of-aggregate-proof.html

Class Action News

Fitz & Jen, Luke Ford.net, paidContent.org, and Portfolio.com discuss an ERISA class action filed by editors, writers, and other employees of a major newspaper recently acquired through the alleged misuse of an Employee Stock Ownership Plan (ESOP): 

http://www.fitzandjen.com/2008/09/jen-if-you-thin.html

http://lukeford.net/blog/?p=5006

http://www.paidcontent.org/entry/419-jack-nelson-among-current-ex-tribune-co-staffers-trying-class-action-su/

http://www.portfolio.com/views/blogs/mixed-media/2008/09/16/la-times-refugees-sue-for-control-of-paper

Class Action Trends

The D&O Diary discusses the latest in options backdating settlements:

http://www.dandodiary.com/2008/09/articles/options-backdating/options-backdating-settlement-news-apple-and-unitedhealth/

Real Lawyers Have Blogs discusses a well-known plaintiffs’ class action firm’s use of social networking website Twitter to find prospective class representatives:

http://kevin.lexblog.com/2008/09/articles/social-networking-1/law-firm-using-twitter-to-find-plainitiffs-for-class-action-law-suit/

Rhondak discusses the use of small claims court as a “poor man’s class action” to vindicate consumer’s rights:

http://rhondak.livejournal.com/1036526.html

Class Action Decisions

The UCL Practitioner provides a summary of recent decisions in several U.S. Circuit Courts of Appeals involving the standards for approving class action settlements and fee awards.  http://www.uclpractitioner.com/2008/08/recent-class-ac.html

Class Action Defense Blog comments on a California federal court decision addressing class certification in a wage and hour class action for alleged unpaid wages for meal and rest breaks in light of the California Court of Appeal’s recent decision in Brinker Restaurant Corp. v. Superior Court (2008 WL 2806613)…

http://classactiondefense.jmbm.com/2008/09/class_action_defense_caseskimo.html

… and  more from the same decision on National Law Journal’s Legal Pad, LA…

http://www.lalegalpad.com/2008/09/federal-judge-r.html

… and commentary from Wage Law on the possible unintended consequences of Brinker.

http://wagelaw.typepad.com/wage_law/2008/08/the-law-of-unintended-consequences.html

CAFA Law Blog provides another entertaining musical revue of a CAFA remand case, this time to the tune of a Steve Miller Band favorite:

http://www.cafalawblog.com/-case-summaries-plaintiff-gets-on-that-707-with-plans-of-rridin-high-but-that-big-ol-jet-airliner-wont-carry-her-too-far-away.html

Classified offers a synopsis of a Florida federal court decision analyzing whether the superiority element of class certification was met in a fair debt collection case despite the fact that the alleged damages of individual class members were de minimus:

http://www.carltonfields.com/classactionblog/blog.aspx?entry=235

The Insurance Reinsurance Blog summarizes and provides a link to an Eighth Circuit Court of Appeals decision upholding a lower court’s decision dismissing an insurance class action on the ground that permitting a federal lawsuit to go forward would impair Missouri’s right to regulate insurance and would violate the McCarran-Ferguson Act.

http://www.insurereinsure.com/BlogHome.aspx?entry=929

North Carolina Appellate Blog summarizes a North Carolina Court of Appeals decision holding that Rule 23(c) did not require notice to absent class members in the event of a court-ordered dismissal as opposed to a voluntary dismissal.

http://womblencappellate.blogspot.com/2008/09/coa-holds-that-no-class-notice-required.html

Several blogs, including the Consumerist, Tech News, and LawMemo commented on the Washington Supreme Court’s decision last week holding a class arbitration waiver unconscionable.

http://consumerist.com/5043570/washington-upholds-att-customers-right-to-class-action#c7514731

http://www.newsvine.in/2008/09/02/once-again-court-says-telco-cant-force-arbitration-over-a-lawsuit/

http://www.lawmemo.com/arbitrationblog/2008/09/unconscionabili.html

Practice Tips

Drug and Device Law Blog offers an excellent summary of the Multidistrict Litigation (MDL) coordination process:

http://druganddevicelaw.blogspot.com/2008/09/multidistrict-litigation-process.html

The Complex Litigator has been providing on-location updates from the Consumer Attorneys Association of LA (CAALA) annual convention, including this summary of practice pointers on the prosecution of class actions in California by attorney Jerome Ringler:

http://www.thecomplexlitigator.com/2008/08/liveblogging–2.html

Class Action Trends

DigitalDay Break comments on what a recent class action lawsuit and settlement regarding online accessibility for the disabled might mean to online marketers.

http://digitaldaybreak.wordpress.com/2008/09/02/what-the-target-accessibility-lawsuit-ruling-means-to-online-marketers/

The D&O Diary discusses reasons why D&O insurance premiums have not skyrocketed despite the recent wave of subprime litigation.

http://www.dandodiary.com/2008/08/articles/d-o-insurance/subprime-lawsuits-mount-so-what-about-do-pricing/

Class Action (and related) Commentary

Federal Civil Practice Bulletin summarizes an article from Vanderbilt Professor Richard A. Nagreda entitled “Class Certification in the Age of Aggregate Proof”:

http://federalcivilpracticebulletin.blogspot.com/2008/09/prof-nagareda-posts-article-on-class.html

Overlawyered reports on a modest proposal from ESPN Columnist Rick Reilly that a class action be filed against minor league baseball players who “sat stewing in the minors while big leaguers were allowed to cheat.” 

http://overlawyered.com/2008/08/espn-columnist-minor-league-players-should-sue-over-steroids/

North Carolina Business Litigation Report discusses a North Carolina Court of Appeals decision allowing a plaintiff to proceed in a usury and deceptive trade practices action challenging the practice of litigation funding, or an agreement providing for an advance of litigation costs by a law firm in exchange for a premium return in the event that the case was successful.  Coincidently, the decision comes as the practice of litigation funding is becoming more common overseas.

http://www.ncbusinesslitigationreport.com/2008/09/articles/class-actions/the-practice-of-litigation-funding-gets-a-chilly-reception-from-the-north-carolina-court-of-appeals/#more

and more commentary on the acceptance of litigation funding in loser pays jurisdictions like Australia, from Point of Law:

http://www.pointoflaw.com/archives/2008/09/shareholder-cla.php

Mass Tort Litigation Blog addresses recent changes to British law permitting investment in law firms:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/08/uk-changes-allo.html

The Race to the Bottom provides a critical, multi-part response to a July report issued by the U.S. Chamber of Commerce Institute for Litigation Reform, which proposed various reforms in securities class actions.

http://www.theracetothebottom.org/home/the-chamber-of-commerce-and-excessive-litigation-be-careful-3.html

“Urban-based accidental journalist” curb girl laments life as an absent class member in a class action settlement involving health insurance in a way that she does not find entirely clear:

http://sidewalkeater.blogspot.com/2008/09/class-action.html

Class Action Politics?

Christina Walldren criticizes Barack Obama’s support for the Class Action Fairness Act (CAFA), arguing that CAFA has the effect of “shutting off avenues of redress” for “working class people”…

http://christinawalldren.com/2008/09/02/we-shall-overcome/

… and more commentary sharing the same general sentiment from the designers.

http://jevdet.blogspot.com/2008/09/corporate-state-lackey-obama.html

As an aside, for all of you disenfranchised members of the radical left, In case it helps you feel better, I can tell you from experience that discrimination, employment, and consumer fraud class actions are still going strong and state courts are still seeing their fair share of class actions despite the “thinly veiled ‘special interest extravaganza’” that led to CAFA’s passage–and PLEASE remember that a vote for Ralph Nader (or Dr. John Hagelin or Lyndon LaRouche) is a vote for Bush.

But lest you think that the far left is the only group not solidly on the Obamamania bandwagon, here’s an entry from the Delaware Curmudgeon quoting with approval this analysis from legal scholar “jmflynny,” who responds to an Obama campaign charge that John McCain and Sarah Palin are against equal pay for equal work with the statement that “the Democrat Party hates businesses, given that they want to give any employee the right to file, without proof, class-action lawsuits for something that may or may not have happened decades ago.”

http://delawarecurmudgeon.blogspot.com/2008/09/on-equal-pay-for-equal-work-issue.html

Another friendly reminder–a vote for Bush is also a vote for Bush.  A vote for Bob Barr on the other hand…

…Nope.  Still a vote for Bush.

Finally, here is arguably the most balanced blog commentary from this past week on the relative positions of the presidential candidates on class action and tort reform issues, written by, I hate to admit this, a trial lawyer…

http://www.nctriallawblog.com/north_carolina_trial_law_/2008/08/mccain-v-obama.html

Class Action Decisions

The Complex Litigator and The UCL Practitioner offer analysis of a recent California class certification decision addressing a variety of issues, including ascertainability of the class, evaluation of the merits in ruling on class certification, commonality and predominance:

http://www.thecomplexlitigator.com/2008/08/certification-d.html

http://www.uclpractitioner.com/2008/08/new-class-cer-1.html

Class Action Defense Blog provides a synopsis of a Second Circuit Court of Appeals decision upholding the district court’s order reducing a negotiated fee award from 8.5% to 3% in a securities class action settlement:

http://classactiondefense.jmbm.com/2008/08/class_action_defense_casesin_r_115.html

CAFA Law Blog summarizes a Massachusetts state court decision that looked to provisions of the federal Class Action Fairness Act (CAFA) in rejecting a coupon settlement, recognizing that while CAFA did not apply expressly in the state court proceeding, its provisions reflected “mainstream” concerns with coupon settlements:

http://www.cafalawblog.com/-case-summaries-judge-says-chew-on-this-in-disapproving-settlement-in-smokeless-tobacco-class-action.html

Mass Tort Defense reviews a recent decision by the United States District Court for the Eastern District of Missouri denying certification of a class of rice farmers claiming damages resulting from genetically modified rice contamination (synopsis also provided by Class Action Defense Blog, cited in last week’s CABWR):

http://www.masstortdefense.com/2008/08/articles/mdl-court-rejects-class-action-in-genetically-modified-rice-litigation/

Consumer Advertising Law Blog discusses a Fifth Circuit decision reversing class certification in a case involving allegations of unsolicited faxes in violation of the Telephone Consumer Protection Act (TCPA):

http://www.consumeradvertisinglawblog.com/2008/08/the-fax-of-the-matter-court-holds-that-consumer-protection-case-not-proper-for-class-certification.html

Florida Appellate Blog discusses a recent Florida state court decision addressing the practice of “picking off” a class representative by offering to settle for the full amount of his or her claim in an effort to moot the class action:

http://www.floridaappellateblog.com/2008/08/ucc-notice-requirements-and-picking-off-a-class-representative-is-not-condoned.html

Dispatch Monthly Magazine reports on a federal court’s decision to grant class certification to a class of police dispatchers in a case challenging department regulations for returning to work after sick or injury leave:

http://www.911dispatch.com/db/index.php?option=com_content&task=view&id=1996

HousingBath.com discusses the denial of class certification in a lawsuit filed against a condominium developer by purchasers seeking to void their contracts due to alleged defects in the building:

http://housingbath.com/2008/08/daily-soak-august-25.html

TortsProf Blog comments on an article from the Legal Intelligencer (reprinted at www.Law.com) discussing a ruling by the Third Circuit Court of Appeals reversing the dismissal, on preemption grounds, of a consumer class action against a manufacturer for alleged failure to warn about the dangers of mercury in tuna:

http://lawprofessors.typepad.com/tortsprof/2008/08/mercury-in-tuna.html

Class Action News

More from American Thinker, Death by 1000 Paper Cuts, National Review Online’s The Corner, Libertyville, Under the Dome, Spencer Blog, and LukeFord.net on Warren Buffett’s recent suggestion that contributors file a class action against John Edwards for concealing his extramarital affair (See ClassActionBlawg.com entry here)…

http://www.americanthinker.com/blog/2008/08/buffett_suggests_edwards_suppo.html

http://deathby1000papercuts.blogspot.com/2008/08/john-edwards-campaign-refunds-more.html

http://libertyville.wordpress.com/2008/08/25/buffet-calls-for-class-action-on-edwards/

http://corner.nationalreview.com/post/?q=YTIyMDI3ZGUzZmNkZGI0ZWE2ZWUzOGNlMDc4ZmMzNzg=

http://projects.newsobserver.com/under_the_dome/buffett_says_donors_should_sue_edwards

http://www3.allaroundphilly.com/blogs/delcotimes/gils/2008/08/buffett-on-edwards-sue-em.html

http://lukeford.net/blog/?p=3966

… with follow up from NewsBusters.org and Perfunction regarding efforts by Edwards to refund contributions to just one of his “Two Americas” (Spoiler: it’s the one with the class action lawyers in it, not the one with Buffett’s proposed class action plaintiffs):

http://www.newsbusters.org/blogs/p-j-gladnick/2008/08/25/web-scoops-msm-edwards-refunds-contributions-one-his-americas

http://perfunction.typepad.com/perfunction/2008/08/coda-john-edwar.html

Class Action Commentary

Legal Theory Blog summarizes an article by Vanderbilt Law Professor Richard A. Nagareda with the fairly self-explanatory title, “Class Certification in the Age of Aggregate Proof”:

http://lsolum.typepad.com/legaltheory/2008/08/nagareda-on-cla.html

Mass Tort Litigation Blog provides an abstract and link to an article by Michigan law student Patrick Luff criticizing the weighing of the costs and benefits that could result from certifying a class in making a class certification decision:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/08/new-scholarship.html

Overlawyered comments on a curious case of forum shopping where plaintiffs’ counsel was successful in pursuing a nationwide class action filed in Oklahoma seeking to apply Texas law after a Texas court had previously rejected the same claims, holding that Texas law did not permit the type of nationwide class that the plaintiffs sought to pursue:

http://overlawyered.com/2008/08/the-inverted-federalism-of-grider-v-compaq/

Nonlawyer Commentary

See this www.eHow.com article for a non-lawyer’s perspective on the practical aspects of starting a personal injury class action lawsuit:

http://www.ehow.com/how_4491550_personal-injury-class-action-lawsuit.html

And if you are looking for one consumer’s viewpoints on participating in a class action settlement, see this entry from Queercents:

http://www.queercents.com/2008/08/22/are-class-action-lawsuits-worth-your-time-and-money/

Legal Ethics

Wage Law has posted a request from the California State Bar for public comment on a proposed ethics rule regarding “Offers of Settlement Conditioned on Client’s Waiver of Statutory Right to Seek Attorney’s Fees”:

http://wagelaw.typepad.com/wage_law/2008/08/public-comment-sought-on-proposed-ethics-rule.html

Class Action Trends

Apparently www.SueEasy.com is still alive and going strong, according to these entries from WebWare and MakeUseOf.com:

http://news.cnet.com/8301-17939_109-10020627-2.html?part=rss&subj=Webware

http://www.makeuseof.com/dir/sueeasy-file-complaint-class-action-lawsuit/

Class Action News

Sagwatch Blog reports on the setting of a trial date in a class action filed by former NFL players against the NFL Players Association seeking payments under a group licensing agreement:

http://blog.sagwatch.net/2008/08/25/sept-22-trial-date-set-in-players-inc-lawsuit/

International Class Action Law

Point of Law comments on a unique feature of British law that allows investors to purchase an ownership interest in litigation and examines the challenges of allowing a similar mechanism in the United States:

http://www.pointoflaw.com/archives/2008/08/beyond-continge.php

The D&O Diary comments on what NERA has called “the largest settlement in a class action securities case in Canadian history,” the relationship between the Canadian case and the U.S. subprime crisis, and its potential impact on trends in subprime litigation in the U.S.:

http://www.dandodiary.com/2008/08/articles/subprime-litigation/subprime-litigation-a-glimpse-of-the-end-game/

Class Action Decisions

Class Action Defense Blog reviews a recent decision by the U.S. District Court for the Eastern District of Missouri denying class certification in consolidated cases filed by U.S. rice growers against the manufacturer of genetically modified rice seed for allegedly contaminating the U.S. rice supply.  The court denied certification on predominance grounds despite an argument by the plaintiffs that because of bans on the genetically-modified traits outside the U.S., the contamination had the effect of reducing the overall market price of U.S. rice prices, finding that the actual price of rice for any given grower depended on a variety of other factors:

http://classactiondefense.jmbm.com/2008/08/class_action_defense_casesin_r_112.html

Delaware Corporate and Commercial Litigation Blog comments on a class action with an intriguing procedural history: a class action settlement was disapproved, an objector became the class representative, and then a later settlement was approved over objections that the class representative was inadequate for failing to monitor class counsel:

http://www.delawarelitigation.com/2008/08/articles/chancery-court-updates/chancery-rules-on-selection-of-class-representative-for-class-action/

Class Action Articles

CAFA Law Blog summarizes a case note analyzing the Class Action Fairness Act (CAFA)’s jurisdictional burden of proof and a law review article authored by Tulane Law Professor Edward F. Sherman exploring CAFA’s various provisions:

http://www.cafalawblog.com/legal-publications-and-articles-interested-in-jurisdictional-burden-of-proof-still-then-weve-got-a-law-review-article-for-you.html

http://www.cafalawblog.com/ (See entry entitled “Rekindled: Sherman’s March Through The Class Action Fairness Act Continues . . . .”)

Drug and Device Law Blog summarizes various articles in a symposium issue of the Tulane Law Review addressing issues relating to Multidistrict Litigation (MDL), including the use of MDL as alternative when a class action is not appropriate and the use of bellwether trials in MDL:

http://druganddevicelaw.blogspot.com/2008/08/tulane-law-review-mdl-symposium-issue.html

Class Action Commentary

Point of Law offers an analysis of the application of the cy pres doctrine in class action awards.  (See previous ClassActionBlog.com entry here):

http://www.pointoflaw.com/archives/2008/08/more-on-our-cla.php

The Oklahoma Opinion has some criticisms of class action settlements:

http://oklahomaopinion.blogspot.com/2008/08/class-action-lawsuit-laws-money-saving.html

Beanstalk Talk recounts frustrations with not being able to participate in a class action settlement due to the inability to present service receipts as proof of his claim:

http://beanstalktalk.com/beanblog/lets-get-a-grip-on-those-mailing-lists/

Goddess Rising reports on a class action lawsuit filed by a self-described anti-feminist claiming that Columbia University’s women’s studies program is discriminatory because its curriculum has instilled in women a hatred towards men and a belief that men are the root of all evil…

http://goddessesrising.blogspot.com/2008/08/class-action-suit-from-classy-guy.html

… more from Kay Steiger on the same case …

http://kaysteiger.blogspot.com/2008/08/misogyny-of-day.html

… more from Cogitamus on the same case and on earlier actions by the same plaintiff, including one seeking damages from New York nightclubs for charging him more than women on “Ladies Night”… 

http://www.cogitamusblog.com/2008/08/shorter-roy-den.html

… (and no, this “guy’s rights advocate” is apparently not a character from Ally McBeal)

Class Action Trends

The Complex Litigator addresses developments in California law regarding a proposed class representative’s right to discovery of information concerning other would-be class members:

http://www.thecomplexlitigator.com/2008/08/class-discovery.html

The D&O Diary surveys the latest in subprime-related class action filings:

http://www.dandodiary.com/2008/08/articles/subprime-litigation/subprime-litigation-something-old-something-new/

SEC Actions reports on trends in securities class actions:

http://www.secactions.com/?p=438

The Bizop News discusses trends in remedies in misleading advertizing class actions:

http://www.bizop.ca/blog2/recovery-of-losses/remedies-for-misleading-advert.html

Class Action Scandals

Point of Law links to a series of Examiner newspaper articles on convicted trial lawyer William Lerach…

http://www.pointoflaw.com/archives/2008/08/around-the-web-62.php

…and more comments from ShopFloor on the William Lerach scandal:

http://www.shopfloor.org/2008/08/18/class-action-lawsuits-and-bill-lerach-a-debriefing/

International Class Action Law
 
Overlawyered provides a link to an article about an unsuccessful toxic tort class action in Saudi Arabia:

http://overlawyered.com/2008/08/august-19-roundup/

Homodox comments on the case of the Knights Templar vs. the Pope (see ClassActionBlawg.com entry here):

http://mhollick.typepad.com/homodox_a_blog/2008/08/a-class-action-seven-hundred-years-in-the-making.html

Practice Tips

The UCL Practitioner comments on a recent California Court of Appeal decision upholding an order granting a defendant’s motion to strike class allegation before the filing of a class certification motion and offers possible arguments that plaintiffs’ counsel might make when facing a similar preemptive motion:

http://www.uclpractitioner.com/2008/08/recent-class-ce.html

Class Action Reform

Green Country Values quotes a recent article on LegalNewsline.com, which discusses proposed reforms aimed at preventing state attorneys general from profiting from the legal actions they bring, and comments on the impact that those reforms might have on the desirability of the office:

Class Action News
 
Check out these entries in Honolulu Adviser and Ticket News about a Hawaii court’s decision to grant class certification to a class of Aerosmith fans after a canceled Maui concert (I have resisted the urge to make one of several possible puns using the title of an Aerosmith song. You’ll have to wait for the CAFA Law Blog post for that):

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080813/BREAKING03/80813065/-1/RSS01

http://www.ticketnews.com/Lawsuit-over-canceled-Hawaiian-Aerosmith-concert-moves-to-class-action-status88141231

Mass Tort Litigation Blog comments on a news report about an Iraqi contractor who has filed a would-be class action against a government contractor for alleged inadequate training of its employees before sending them to work in Iraq:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/08/iraq-injuries-s.html

NARF News reports on a hearing on several pretrial motions in a putative class action filed by several American Indian tribes against the United States Department of the Interior seeking an accounting of lands held in trust for 260 tribes:

http://narfnews.blogspot.com/2008/08/court-to-decide-jurisdiction-over.html

Ink Slinger reports on the success of various age discrimination class actions brought by over-40 Hollywood TV writers:

http://cekinla.blogspot.com/2008/08/hollywoods-love-for-older-writernot.html

Business Opinions offers a modest proposal for resolving a class action lawsuit filed against the Quebec gaming commission by a would-be class of gambling addicts:

http://businessopinions.blogspot.com/2008/08/problem-gamblers-sue-gaming-commission.html

The Wall Street Journal Health Blog reports on FTC statements made regarding the lack of evidence of any health benefits associated with a product marketed by a dietary supplement company to fight colds, and the company’s response, which included the quip, “We’re just one of many major consumer brands across America that are under assault by class-action lawyers”…

http://blogs.wsj.com/health/2008/08/15/feds-no-credible-evidence-that-airborne-fights-colds/

… and more on the same story from Wallstrip:

http://www.wallstrip.com/2008/08/15/airborne-catches-some-germs/

Cryptozoology News

Finally, I’m very saddened to report that my hopes of confirmation that Bigfoot exists were dashed today with news that the discovery of a Bigfoot corpse turned out to be a hoax!  I still believe…

Class Action Decisions

The folks at CAFA Law Blog decided to post a great new entry on a recent Class Action Fairness Act decision seemingly every few minutes during the past week, so rather than summarize them here, I’ll just direct you to the main page:

http://www.cafalawblog.com/  

The same goes for the numerous summaries of class action decisions available at Class Action Defense Blog:

http://classactiondefense.jmbm.com/  

North Carolina Business Litigation Report reviews a decision by the Business Court of that state establishing rules to be followed in the event of a pre-certification dismissal of a class action:

http://www.ncbusinesslitigationreport.com/2008/08/articles/class-actions/new-business-court-rules-of-the-road-for-precertification-dismissals-of-class-actions/

NJ Personal Injury and Civil Cases summarizes a recent New Jersey state court decision addressing the proper forum for adjudicating whether the filing of an individual action in New Jersey constituted a valid opt out from a nationwide class action settlement in Tennessee:

http://njlawspersonalinjury.blogspot.com/2008/08/simmermon-v-dryvit-systems-inc.html

Kotaku.com summarizes the trial court’s denial of class certification in a proposed class action settlement of claims against a video game company for including offensive scenes in its video game…

http://kotaku.com/5033459/hot-coffee-class-action-suit-squashed-by-the-court  

… more from GamePolitics.com on the same decision…

http://www.gamepolitics.com/2008/07/31/judge-pops-cap-hot-coffee-class-action-settlement  

… and Overlawyered contributor Ted Frank, who had appeared as an objector in the case, provides some commentary on the decision:

http://overlawyered.com/2008/07/grand-theft-auto-class-action-the-denouement/#more-7351  

The UCL Practitioner comments on a recent New Mexico Supreme Court decision invalidating class arbitration waivers in certain consumer contracts and discusses other recent developments regarding the enforcement of class arbitration waivers:

http://www.uclpractitioner.com/2008/08/new-mexico-supr.html  

For reviews of recent California federal district court and Ninth Circuit Court of Appeals’ decisions in wage and hour claims in the wake of the California Court of Appeal’s recent decision in Brinker (see link to summary here), see this entry from The Complex Litigator (citing entries from The UCL Practitioner and Alaska Employment Law)…

http://www.thecomplexlitigator.com/2008/08/the-ninth-circu.html

… and for more news related to the fallout from Brinker, see various other posts from The Complex Litigator:

http://www.thecomplexlitigator.com

Class Action News

The Am Law Daily provides summaries of various news items involving class actions, including a summary of the recent National Law Journal article discussing cy pres awards, a judgment in favor of Indian tribes in class action against the U.S. Government involving lands held in trust, and trends in securities class actions:

http://amlawdaily.typepad.com/amlawdaily/2008/08/the-am-law-li-6.html

Northern Law Blog reports on a settlement in a class action filed on behalf of Division 1 football and men’s basketball players against the NCAA involving claims for underpayment of financial aid:

http://www.northernlawblog.com/2008/08/ncaa-class-action-settlement.html

Wage Law Blog reports on a class action filed against the California Department of Labor on behalf of employers who are the subject administrative action by that agency for lost wages sought by illegal aliens:

http://wagelaw.typepad.com/wage_law/2008/08/sushi-bar-sues-california-labor-commissioner-in-class-action.html

Class Action Commentary

Jere Beasley Report comments on the potential impact of a forthcoming decision by the Seventh Circuit Court of Appeals in a putative class action brought by homeowners for mortgage fraud under the TILA:

http://www.jlbreport.com/2008/08/12/door-could-open-to-mortgage-class-actions/

Personal Injury Law Firm discusses the benefits and disadvantages of pursuing an asbestos case individually or as a class action:

http://www.personalinjurycourt.com/news/?p=112

NCPA Idea House comments on a recent report issued by the U.S. Chamber of Commerce Institute for Legal Reform (ILR) addressing trends in securities class actions and providing proposals for reforms. (See previous ClassActionBlawg.com entry here)

http://www.ncpa.org/sub/dpd/index.php?page=article&Article_ID=16885

… more on the report from Law Librarian Blog …

http://lawprofessors.typepad.com/law_librarian_blog/2008/08/securities-clas.html

… and from the U.S. Chamber’s own blog, Chamber Post:

http://www.chamberpost.com/2008/07/another-threat.html

Makeup Blog offers some criticisms of consumer class action settlements:

http://www.makeupblog.cn/real-estate/class-action-lawsuits.html

Mass Tort Litigation Blog provides a link to Scadden’s July 2008 Issue of Class Action Chronicle, which in turn has some great commentary on class action issues including communications with class members, defending class action trials, and trends in consumer class actions:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/07/july-2008-issue.html

Re: the Auditors has criticisms of practices by companies and their auditors in disclosures of legal contingencies posed by pending class actions:

http://www.retheauditors.com/2008/08/improving-contingency-disclosure-just.html

Point of Law reviews a recent Wall Street Journal op-ed arguing that cy pres remedies in class actions are unconstitutional (See ClassActionBlawg.com entry here):

http://www.pointoflaw.com/archives/2008/08/cy-pres-a-const.php

Class Action Trends

Another law blog with too much great content over the past two weeks to summarize here is The D&O Diary, which summarizes trends in securities litigation and analyzes developments in several specific securities class actions:

http://www.dandodiary.com/

Drug and Device Law Blog collects cases that address cross jurisdictional class action tolling in this entry:

http://druganddevicelaw.blogspot.com/2008/08/cross-jurisdictional-class-action.html

Crain’s New York Business reports on a sharp increase in the number of class action securities lawsuits in New York City, spawned by the subprime mortgage crisis…

http://www.crainsnewyork.com/apps/pbcs.dll/article?AID=/20080731/FREE/676212586/-1/rss01&rssfeed=rss01

…while DC Dicta provides an overview of an ABA Journal article discussing statistics on subprime-related securities class action lawsuits from Cornerstone Research and Stanford Law School’s Securities Class Action Clearinghouse:

http://lawyersusadcdicta.wordpress.com/2008/07/30/subprime-fiasco-keeping-class-action-lawyers-busy/

NJ HELOC Heaven predicts that class actions lawsuits will follow from lenders’ decisions to reduce existing customers’ Home Equity Lines of Credit (HELOCs):

http://njhelocheaven.blogspot.com/2008/08/class-lawsuits-are-starting.html

Point of Law discusses the latest in FACTA cases, which it describes as the “‘Gotcha’ statute on credit slip privacy.”

http://www.pointoflaw.com/archives/2008/08/facta-hits-bato.php

International Class Action Law

Hannah Buxbaum provides a guest post on IntLawGrrls summarizing her article, Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, Columbia Journal of Transnational Law, Vol. 46, Issue 1, which addresses “foreign-cubed” securities class actions, or class actions brought in U.S. courts by foreign investors against foreign companies and brought on foreign exchanges:

http://intlawgrrls.blogspot.com/2008/07/foreign-cubed-class-action-us-courts.html

The UCL Practitioner provides a link to a website with great content on class action laws around the globe. (Also see this ClassActionBlawg.com entry discussing similar content offered by Stanford Law School):

http://www.uclpractitioner.com/2008/08/other-countries.html

Practice Tips

In its Bulletproof Blog, Levick Communications provides advice to defendants on proactive alternatives to blanket denials in waging the PR battle in high stakes litigation:

http://www.bulletproofblog.com/2008/07/28/conflict-diamonds-and-the-jiu-jitsu-strategy/

Mass Private I reviews a consumer website called www.RipoffReport.com, which it says is used by various law enforcement agencies and law firms to perform background checks on businesses:

http://massprivatei.blogspot.com/2008/07/ripoff-report-is-useful-tool-for-fraud.html

Class Action Decisions

Summaries and commentary of class action case decisions highlighted this past week’s class action blog postings:

The Complex Litigator provides an analysis of a recent California Court of Appeal decision upholding a defendants’ motion to strike class allegations in a would-be class action prior to the plaintiffs filing a motion for class certification, including clarification of the procedural basis for the defendant’s request to “strike” the class allegations:

http://www.thecomplexlitigator.com/2008/06/court-of-appeal.html

Drug and Device Law Blog offers a “short rant” critical of a recent Arkansas Supreme Court decision holding that a “rigorous analysis inquiry” of class certification requirements is not required under Arkansas procedure:

http://druganddevicelaw.blogspot.com/2008/07/arkansan-atrocity-general-motors-v.html

CAFA Law Blog is back with a CAFA removal case summary that hearkens us back to childhood and those “Choose Your Own Adventure” books (which I used to love even though I always seemed to end up with the bad ending).

http://www.cafalawblog.com/-case-summaries-defendant-tries-to-choose-its-own-adventure-and-remove-under-cafa-but-is-sent-back-down-to-state-court-anyway.html

Consumer Law & Policy Blog comments on a New Mexico Supreme Court decision prohibiting class action waivers in consumer agreements…

http://pubcit.typepad.com/clpblog/2008/06/new-mexico-supr.html

…more from Alabama Consumer Law Blog on the same decision...

http://www.alabamaconsumerlawblog.com/2008/06/another_court_strikes_down_cla.html

… and LegalNewsline.com provides commentary from the New Mexico Attorney General on the impact of the decision:

http://www.legalnewsline.com/news/213917-ag–says-court-decision-opens-the-door-for-class-action-against-dell

North Carolina Appellate Blog summarizes a recent Fourth Circuit Court of Appeals decision clarifying the burden of proving federal jurisdiction and other standards for removal under CAFA.

http://womblencappellate.blogspot.com/2008/06/fourth-circuit-clarifies-cafa-removal.html

Daily Kos summarizes the court’s ruling following a bench trial in a lawsuit filed by veterans’ groups against the Veteran’s Administration seeking reforms in health care and claims procedures for veterans (see my earlier commentary on characterizations of this case as a “class action” here and here):

http://www.dailykos.com/storyonly/2008/6/26/132220/509

Wisblawg comments on the class certification decision in a lawsuit challenging the constitutionality of Wisconson’s “diploma privilege” which allows in-state graduates to be admitted to the bar without taking the bar exam (see previous entries discussing this decision here and here):

http://www.law.wisc.edu/blogs/wisblawg/2008/06/wisconsin_diploma_privilege_su.html

Corporate Legal Times discusses a Third Circuit Court of Appeals’ opinion in a class action claiming that a hospital’s practice of charging uninsured patients more than insured patients violated consumer protection laws.

http://www.cltmag.com/3rd-circuit-class-action-no-cure-for-uninsured-patients-bill.html

Subprime Mortgage Lawsuits

Busted: Bankers and the Digital Economy comments on a recent California federal court decision in a class action lawsuit filed under the Truth in Lending Act…

http://digitaleconomy.wordpress.com/2008/06/30/good-news-for-cheated-homeowners/

…commentary on the same case from LoanWorkout.org.

http://loanworkout.org/2008/07/mortgage-ruling-could-shock-us-banking-industry/

Class Action Trends

This seemed like a good week to highlight some excellent recurring features provided by other class action-related blogs.

The D&O Diary provides periodic updates of trends in securities lawsuit filings and related statistics:

http://www.dandodiary.com/2008/06/articles/securities-litigation/midyear-2008-securities-lawsuit-filings-remain-up/ 

Class Action Defense Blog provides a weekly summary of the trends in class action filings in the California courts:

http://classactiondefense.jmbm.com/2008/06/business_as_usual_labor_law_cl.html

Classified provides periodic summaries of class action news:

http://www.carltonfields.com/classactionblog/blog.aspx?entry=229

Class Action Scandals

One class action lawyer is sentenced…

The blogosphere was quick to react to the 5-year prison sentence of class action lawyer Dickie Scruggs for conspiracy to commit bribery

From Marianne M. Jennings:

http://www.mariannejennings.com/?p=47

From the NY Times Dealbook Blog:

http://dealbook.blogs.nytimes.com/2008/06/27/class-action-lawyer-gets-5-years-in-bribery-case/

…while another is acquitted…

Letter of Apology reports that Melbourne Mills Jr., one of the three defendants in the Kentucky fen-phen wire fraud trial has been acquitted, while the jury continues deliberations over charges brought against two co-defendants:

http://letterofapology.com/2008/07/01/mills-acquitted-in-kentucky-fen-phen-case-jury-still-out-on-other-two-defendants/

Class Action Settlements

Overlawyered contributor Ted Frank recounts his appearance as an objector in the fairness hearing of a settlement involving the Grand Theft Auto video game…

http://overlawyered.com/2008/06/grand-theft-auto-class-action-the-argument/

…for more commentary from the settlement and a link to a New York Times article discussing the case, see this entry on Gamepolitics.com…

http://www.gamepolitics.com/2008/06/25/ny-times-probes-legal-fees-hot-coffee-class-action-settlement

Class Action Legislation and Reform

Law and More provides commentary and an interview with attorney Joseph K. Hetrick comparing the mechanical and philosophical differences between the U.S. legal system and those in European countries, including predictions about European class action reforms.

http://lawandmore.typepad.com/law_and_more/2008/06/legal-systems-of-eu-uk-far-east-give-competitive-advantages-asserts-attorney-joseph-k-hetrick-of-dechert.html

The American Gathering of Jewish Holocaust Survivors and their Descendants has posted a bill being considered by the U.S. House of Representatives that would provide a federal cause of action for claims for benefits under Holocaust-era insurance policies.  The bill has a provision dealing with opt-out rights of claimants in pending or new class actions seeking benefits under Holocaust-era insurance policies.

http://www.americangathering.com/2008/06/29/3315/revised-hr-1746-as-marked-up-by-the-congressional-committee-on-finance-and-banking/ 

Class Action Cinema

Finally, films about class actions are highlighted in recent film review blog entries.  The Sweet Hereafter gets a 4-Star rating from Daily Film Dose…

http://www.dailyfilmdose.com/2008/07/sweet-hereafter.html

…but North Country gets a mixed review from I Think Therefore I Review: 

http://ithinkthereforeireview.blogspot.com/2008/07/north-country.html