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Posts Tagged ‘Class Action Decisions’

The ABA’s 13th Annual National Institute on Class Actions, the gold standard in class action CLE conferences, is coming up this fall.  This year’s format is a little different.  They will be holding two sessions, one on each coast.  The dates and locations are:

Friday, October 30, 2009
San Francisco, CA
8:00 AM – 5:00 PM PT

Friday, November 20, 2009
Washington, DC
8:00 AM – 5:00 PM ET   
       
According to program founder and chair, John Isbister:

Each session will begin with the popular presentation by Professor John C. Coffee on new developments in class action litigation.  Also, on the agenda are programs that examine issues concerning arbitration and class action waivers, recent developments in the standards for certifying a class, and advice for both plaintiffs and defense counsel on settling class actions.  The session in San Francisco will include a program on the class action landscape in California courts, while the Washington, DC session will feature a roundtable discussion on current issues in class actions with three federal judges moderated by Professor Arthur R. Miller.

It sounds like you can’t go wrong with either option, so start making your reservations now.  A full description of the programs and the speakers is in the program brochure, which is also available on the web registration site:  http://www.abanet.org/cle/programs/n09cac1.html

I’ll have some comments on each of the topics and sessions over the coming weeks.  Stay tuned…

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I finally found a few moments the other day to organize the teetering stack of professional journals, magazines, and flyers that had been piling up in my inbox.  I was pleasantly surprised to find that the most recent issue of the ABA Commercial & Business Litigation section’s Winter newsletter is a collection of articles focusing on class action issues.  The compelling list of titles include “What to Tell a Panicked Client about Class Actions,” “CAFA and its Impact on Class Action Litigation,” “The ‘Holistic’ Approach to Scienter under Tellabs,” “Alternative Privilege Log Techniques in an E-discovery World,” and Recent Rulings Limit Plaintiffs’ Choice of Forum Tactics.”

http://www.abanet.org/litigation/committees/commercial/newsletter.html

Speaking of class-action related materials, here are some good print publications focusing on class actions:

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As a class action defense lawyer in an Am Law 100 law firm, I usually don’t make it a practice to highlight the class action publications of competing U.S. firms, but Gibson Dunn & Crutcher‘s year-end class action report is such a great resource that I had to make an exception.  The report, published earlier this month, highlights statistical trends, key decisions, and key issues in class actions in both state and federal courts in 2008.  The report also analyzes the impacts of the Class Action Fairness Act (“CAFA”) on class actions in state  and makes predictions on trends and issues in 2009.   A copy of the report is available for public viewing at the firm’s website:

http://www.gibsondunn.com/Publications/Pages/Year-EndUpdateOnClassActions.aspx

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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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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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As the new year approaches, everyone seems to be doing a “top ten” list for 2008, so of course, ClassActionBlawg has to have one too.  However, this “top ten” list has two improvements.  First, the rankings will be decided by reader vote.  Second, and even better, it goes to 11!

So, here are some key class action decisions and trends from the year that was, in no particular order.  See the poll below to vote for the one you like best.  Feel free to submit comments with other suggestions, and maybe together we can make a top ten list so good that it will go higher than 11.  Best wishes to all in 2009.

  • RICO fraud class actions show promise after Supreme Court’s decision in Bridge v. Phoenix Bond & Indemnity Co., 553 U.S.. —. , 128 S.Ct. 2131 (U.S. June 9, 2008) (holding that a plaintiff need not show first-party reliance in order to assert a claim under the federal RICO statute).
  • “Foreign Cubed” class actions show promise, then sputter a bit.  See Morrison v. National Australia Bank Ltd., 2008 WL 4660742 (2d Cir. Oct. 23, 2008) (discussing federal jurisdiction over “foreign cubed” securities class actions).
  • Fraud on the market theories are tested in consumer fraud cases.  See McLaughlin v. Philip Morris USA, Inc., 522 F.3d 215 (2d Cir. 2008) (rejecting class certification on various consumer fraud theories, including the “fraud on the market theory”).
  • Courts reject certification of FACTA Class Actions on superiority grounds based on reasoning that class exposure would be grossly disproportionate to the alleged harm to consumers.  See, e.g., this recent California federal court decision summarized at Class Action Defense Blog.
  • California courts address certification of wage and hour class actions involving unpaid wages for time worked during meal and rest breaksSee Brinker Restaurant Corp. v. Superior Court (2008), 165 Cal. App. 4th 25, review granted (Oct. 22, 2008).
  • Truth in Lending Act (TILA) actions seeking rescission of mortgages due to alleged predatory lending deemed unsuitable for class treatment.  See Andrews v. Chevy Chase Bank, No. 07-1327 (7th Cir., Sept. 24, 2008)
  • Class actions for damages caused by pollution where defendant has complied with applicable regulations see mixed results in the U.S. and Canada.
  • The Second Circuit Court of Appeals holds that a preponderance of the evidence standard of proof applies in determining whether the elements of class certification have been satisfied in Teamsters Local 445 Freight Division Pension Fund v. Bombardier, Inc., Case No. 06-3794-cv (2d Cir. Oct. 14, 2008).
  • Italy’s new class action law takes effect, while other European countries consider class action reforms.
  • Class action scandals involving illegal kickback and bribery schemes result in prison sentences for class action lawyers Melvin Weiss, William Lerach, Dickie Scruggs and others.
  • The Supreme Court rejects “scheme liability” in securities fraud cases in Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008)

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

Top Stories that Are Hopefully Not Indicative of Class Action Trends

Overlawyered reports on a courtroom fistfight between two lawyers pursuing rival class action suits against the same defendant:

http://overlawyered.com/2008/12/new-orleans-brawl-between-class-action-lawyers/

Class Action Decisions

How Appealing summarizes and links to an opinion by the Fourth Circuit Court of Appeals decision holding that a class action counterclaim defendant could not remove to federal court under the Class Action Fairness Act (CAFA) (as an aside, yours truly was on the losing end of the Ninth Circuit decision relied upon by the majority.  Sorry Mayer Brown et al. for helping to create bad precedent):

http://howappealing.law.com/121708.html#031686

Securities Docket offers a synopsis of a Fourth Circuit Court of Appeals decision upholding the dismissal of a securities fraud class action under the “strong inference” of wrongful intent standard required by the Supreme Court’s decision in Tellabs:

http://www.securitiesdocket.com/2008/12/15/fourth-circuit-affirms-dismissal-of-securities-class-action-against-inspire-pharmaceuticals/

Online Dating Newsletter reports on a federal court’s decision denying a motion for summary judgment filed by an online dating service defending claims that it continued to charge fees after members had canceled their service:

http://www.onlinedatingnewsletter.com/datingnews/truecomclassactionlawsuit/

Corporate Legal Times has a story about an an Iowa federal court’s class certification decision, with the self-explanatory headline “Class Action Status Doesn’t Stick to Teflon Lawsuits” …

http://www.cltmag.com/class-action-status-doesnt-stick-to-teflon-lawsuits.html

… and more on the same case from InjuryBoard.com and South Florida Lawyers:

http://www.injuryboard.com/national-news/teflon-lawsuits-won39t-become-class-action.aspx?googleid=253196

http://southfloridalawyers.blogspot.com/2008/12/teflon-class-action-up-in-flames.html

Wage Law reviews a recent California appellate decision addressing the standards for what evidence a trial court must consider in evaluating the fairness of a class action settlement: 

http://www.californiawagelaw.com/wage_law/2008/12/kullar-v-foot-locker—reversal-of-class-action-settlement-approval.html

The Race to the Bottom analyzes a New York court’s grant of summary judgment in a shareholder class action alleging that a forced bank merger constituted a breach of fiduciary duty:

http://www.theracetothebottom.org/home/bear-stearns-the-shotgun-merger-and-fiduciary-duties.html

Class Action Trends

As always, for the latest developments in subprime crisis litigation, see the D&O Diary

http://www.dandodiary.com/2008/12/articles/subprime-litigation/subprime-securities-suit-against-bank-dismissed-without-prejudice/

… and for more commentary and analysis on trends in subprime mortgage litigation, see this December 3 entry from Mortgage Meltdown:

http://mortgagemeltdown.typepad.com/my_weblog/2008/12/securities-fraud-lawsuit-against-countrywide.html

Class Action News

The Complex Litigatorreports on upcoming administrative changes in the Los Angeles County Complex Litigation Court (Btw, congrats to Scott Leviant on his new position with Initiative Legal Group LLP):

http://www.thecomplexlitigator.com/2008/12/management-changes-coming-to-complex-litigation-court-in-los-angeles-county.html

The Memphis Daily Newsreports on developments in a potential class action lawsuit being considered by the City of Memphis and Shelby County, Tennessee against lenders for alleged predatory lending practices leading to mass foreclosures in connection with subprime mortgages:

http://memphisdailynews.com/editorial/Article.aspx?id=39942

Spam Notes has an update on procedings on appeal to the Ninth Circuit Court of Appeals in a class action involving federal preemption of claims brought under the California anti-spam statute and other state laws:

http://spamnotes.com/2008/12/16/kleffman-v-vonage–no-oral-argument.aspx

Drug and Device Law provides an update on amendments to Financial Accounting Standards Advisory Counsel guidelines on what a company must disclose about securities class action and other litigation:

http://druganddevicelaw.blogspot.com/2008/12/amending-fas-5-update.html

Class Action Conferences

Class Action Defense Blog and CAFA Law Blog comment on an upcoming conference sponsored by the American Finance Institute on consumer finance class actions and litigation to be held in New York in late January:

http://classactiondefense.jmbm.com/2008/12/mark_your_calendars_class_acti_6.html

http://www.cafalawblog.com/-events-making-your-list-checking-it-twice-if-so-make-sure-this-outstanding-seminar-is-on-it.html

Class Action Commentary

www.InvestmentFraudPRO argues that FINRA securities fraud arbitration can often be a better approach for victims of investment fraud to recoup their losses than class action lawsuits:

http://investmentfraudpro.blogspot.com/2008/12/finra-securities-arbitration-or-class.html

FP Legal Post predicts that class actions against cell phone companies based on concealment of studies linking cell technology to brain cancer may be the next wave of litigation in Canada:

http://network.nationalpost.com/np/blogs/legalpost/archive/2008/12/15/cellphones-newest-bonanza-for-class-action-bar.aspx

Mass Tort Litigation Blog discusses a recent BNA Reports commentary on CAFA’s Local Class Action Exception:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/12/cafas-local-cla.html

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