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…

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:

• ABA Class Action & Derivative Suits Committee’s CADS Report- Quarterly periodical with articles on various class action topics, available to members of the ABA’s CADS Committee of the Section of Litigation.
• BNA’s Class Action Litigation Report – Semi-monthly law reporter with news, trends, case summaries, analysis and perspective.
• Strafford Publishing’s Class Action Law Monitor – Twice-monthly law reporter with docket and case updates, opinion summaries, news, and articles.
• Thomson West’s Class Action Reports – case summaries, analysis, and commentary.
• Finally, Bloomberg Law Reports entered the class action law reporter fray briefly last fall, but I can’t seem to find a current link at present.  Here’s a link to the September issue, available on the Dechert website:  http://www.dechert.com/library/Wajert.pdf

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

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/

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

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 breaks.  See 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)

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

Class Action-Related Post of the Week

Kudos to the folks at Drug and Device Law Blog on their excellent review, with the help of O’Melveny’s John Beisner, of the most recent draft of ALI’s Principles of Aggregate Litigation:

http://druganddevicelaw.blogspot.com/2008/12/umm-what-he-said.html

Class Action Decisions

Securities Docket summarizes and links to the latest decision from the U.S. District Court for the Southern District of New York discussing federal jurisdiction in a “foreign cubed” securities class action:

http://www.securitiesdocket.com/2008/12/01/sdny-dismisses-vodafone-securities-class-action-for-lack-of-subject-matter-jurisdiction/

Class Action Defense Blog discusses a pair of Federal district court decisions in class actions involving claims under the Fair Debt Collection Practices Act (FDCPA):

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

http://classactiondefense.jmbm.com/2008/12/fdcpa_class_action_defense_cas_11.html

North Carolina Business Litigation Report discusses a North Carolina federal court’s decision denying a motion for a preliminary injunction and discusses other developments in a class action seeking to enjoin a high profile bank merger:

http://www.ncbusinesslitigationreport.com/2008/12/articles/class-actions/nc-business-court-denies-motion-for-preliminary-injunction-in-wachoviawells-fargo-merger-case/

The Complex Litigator offers a synopsis of a California Supreme Court decision addressing the availability of punitive damages in wage and hour class actions:

http://www.thecomplexlitigator.com/2008/12/for-the-moment-california-law-is-clear-no-punitive-damages-for-violations-of-labor-code-provisions-r.html

The UCL Practitioner provides a link to the latest in California Court of Appeal decisions addressing the injury-in-fact requirement for standing under the Unfair Competition Law (UCL) after Proposition 64:

http://www.uclpractitioner.com/2008/12/new-ucl-standing-decision-troyk-v-farmers-group-inc.html

Wage Law offers a synopsis of a California decision discussing the impact of practical difficulties in ascertaining class membership on the viability of class certification in a wage and hour case:

http://www.californiawagelaw.com/wage_law/2008/12/harper-v-24-hour-fitness.html

Class Action News

Spam Notes discusses and provides a link to the complaint in a putative class action seeking liability against an Internet company for allegedly violating the Washington State gift card law by removing credits from customers’ “stored value accounts” due to inactivity:

http://spamnotes.com/2008/12/08/class-action-filed-against-skype-for-wa-gift-card-violations.aspx

WDSU.com reports on a class action against the City of New Orleans challenging the constitutionality of using automated cameras to catch drivers who run red lights:

http://www.wdsu.com/news/18215832/detail.html?rss=no&psp=news

Mercury News discusses an order by a California federal judge certifying a class in a case against a collection firm for alleged unlawful threats in bad check notices to debtors:

http://www.mercurynews.com/localnewsheadlines/ci_11139841?source=rss

The Wall Street Journal Law Blog provides details on an unsealed indictment of defendants accused of participating a conspiracy to collect class action settlement proceeds using forged documents and fake companies.  (See previous ClassActionBlawg commentary on the story here):

http://blogs.wsj.com/law/2008/12/03/class-action-fraud-alive-and-well-philly-prosecutors-say/

Class Action Scholarship

Mass Tort Litigation offers links variety of interesting scholarly articles on class action-related issues, including this abstract of an article by Tanya Monestier of Queen’s University entitled Personal Jurisdiction Over Non-Resident Plaintiffs in Multi-Jurisdictional Class Actions: Have We Gone Down the Wrong Road?

http://lawprofessors.typepad.com/mass_tort_litigation/

Class Action Trends

The D&O Diary discusses the “new wave” in subprime credit crisis litigation:

http://www.dandodiary.com/2008/12/articles/subprime-litigation/the-evolving-credit-crisis-litigation-wave/

Class Action Commentary

Point of Law responds to a commentary on the Cato Institute’s Cato-at-Liberty blog arguing that the Class Action Fairness Act (CAFA) is contrary to the originalist interpretation of the United States Constitution.  (See ClassActionBlawg reaction to the same commentary here):

http://www.pointoflaw.com/archives/2008/12/moller-constitu.php

Overlawyered discusses the reasons for the race to the courthouse shortly after a tragic event like the Black Friday shopper trampling:

http://overlawyered.com/2008/12/5-minute-after-suits-and-the-wal-mart-trampling/

A climate change skeptic responds to a researcher’s claims that he can calculate the difference between damage caused by a storm and the damage that would have been caused but for global warming, on The Air Vent:

http://noconsensus.wordpress.com/2008/12/10/class-action-suits-to-stop-global-warming/

International Class Action Law

Jurist reports on the rejection of a collective action brought in China by alleged victims of the recent tainted baby formula scandal.  (See previous ClassActionBlawg entry here):

http://jurist.law.pitt.edu/paperchase/2008/12/china-court-rejects-tainted-milk-class.php

Canadian Tax Resource discusses a bulletin issued by the Canadian Revenue Agency describing the department’s views on the tax implications of a Canadian securities class action settlement:

http://blog.taxresource.ca/cra-provides-direction-on-the-nortel-class-action-settlement/

Financial Post discusses the possibility of cross-border class action litigation by U.S. plaintiffs’ firms following the expected failure of a leveraged buyout of a Canadian company:

http://www.financialpost.com/story.html?id=1057781

The Court briefs a recent decision by the Supreme Court of Canada upholding the imposition of strict liability against a cement company in a public nuisance class action.  (See earlier ClassActionBlawg commentary on the case here):

http://www.thecourt.ca/2008/12/10/recognizing-no-fault-civil-liability-in-respect-of-neighbourhood-disturbances-in-quebec-civil-law/

Oh, and by the way, the title of this week’s CABWR is not a typo.  I just thought I’d make a belated pitch for that open Illinois Senate Seat.

I’m very disappointed to have to report that last week’s “Lay Down the Gauntlet” Challenge of the Week did not generate a single vote or comment.  This means that I must arbitrarily assign a label for class actions filed against institutional investors for failing to make a claim in another class action settlement.  I have delegated the selection to my dog, Monty, whose vote was to be recorded based on whether he wagged his tail in response to my uttering each of the three candidates.  For anyone who questions the fairness of this process, you should have thought about that when you decided not to vote.  Plus, you should know that Monty got third place one year in the NCAA basketball tournament office pool.  In truth, Monty wasn’t enthralled by any of the choices.  But he did raise an eyebrow and sniff in response to one, while simply maintaining a blank stare in response to the other two.  So, class actions seeking liability for failing to participate in other class action shall forever be called…

“Malkovich”

Congrats to Professor Peter J. Henning of White Collar Crime Prof Blog on his victory.  I’m sure he’ll be thrilled by his victory if he ever discovers that he even entered (in an entry from 2005).

Without further ado (and a few days later than usual), here are some blog entries from the week that was that might be of interest to class action practitioners…

Class Action Decisions

Feminist Law Professors discusses a California state court’s decision to grant class certification in a sexual orientation discrimination case filed against an online dating site for refusing to match gay and lesbian patrons:

http://feministlawprofs.law.sc.edu/?p=4364

Class Action Defense Blog reviews a Third Circuit Court of Appeals opinion reversing, on predominance and superiority grounds, a class certification order in a case filed by automobile dealers against a manufacturer:

http://classactiondefense.jmbm.com/2008/11/class_action_defense_casesdanv_1.html

Classified provides a synopsis of a decision by a Florida federal court addressing proof necessary to establish jurisdiction under the $5 million amount in controversy requirement in a case removed under the Class Action Fairness Act (CAFA) when the plaintiffs’ class definition was imprecise:

http://www.carltonfields.com/classactionblog/blog.aspx?entry=243

Drug and Device Law comments on a Tennessee Supreme Court decision from earlier this year holding that claims under the state’s consumer protection law could not be brought as class actions:

http://druganddevicelaw.blogspot.com/2008/11/tennessee-rejects-consumer-fraud-class.html

Class Action Trends

Point of Law comments on a well-known personal injury firm switching its emphasis from asbestos cases to ERISA class actions involving fees charged in connection with 401K plans:

http://www.pointoflaw.com/archives/2008/11/asbestos-today.php

The WSJ Law Blog discusses a request for attorneys fees in a class action settlement for work done by temporary lawyers:

http://blogs.wsj.com/law/2008/11/24/in-xerox-class-action-fees-for-temp-lawyers-take-center-stage/

Class Action News

North Carolina Business Litigation Report offers the latest developments relating to a class action brought to enjoin a high profile bank merger:

http://www.ncbusinesslitigationreport.com/2008/11/articles/class-actions/north-carolinas-attorney-general-and-state-treasurer-duke-it-out/

Securities Docket discusses the resolution of a battle between several large institutional investors for appointment as “lead plaintiff” in a securities class action against a mortgage lender:

http://www.securitiesdocket.com/2008/11/26/political-shoving-match-in-north-carolina-rebuts-lead-plaintiff-presumption-in-freddie-mac-case/

The Tampa Bay Tribune reports on a putative class action filed in Florida on behalf of voters challenging Florida’s decision to move up its primaries despite objections from both major parties:

http://www2.tbo.com/content/2008/nov/26/class-action-status-sought-suit-over-florida-prima/news-politics/

The UCL Practitioner summarizes the issues accepted for review by the California Supreme Court in a case implicating whether payment of alleged overcharges can constitute injury sufficient to support an action under the Unfair Competition Law (UCL) when those overcharges are passed on to third parties:

http://www.uclpractitioner.com/2008/11/statement-of-issues-on-review-in-clayworth-v-pfizer-inc.html

AMLAC & Fraud links to a CNN article reporting on the indictment of six people charged in connection with an alleged conspiracy to make fraudulent claims in class action settlements (see ClassActionBlawg entry about the story here):

http://amlac1.blogspot.com/2008/11/federal-government-charges-6-in-40.html

Class Action Commentary

Sergie Lemberg of LemonJustice.com offers a guest commentary on The Complex Litigator addressing the loser pays rule common in jurisdictions outside the Europe and opining that the rule hurts consumers:

http://www.thecomplexlitigator.com/2008/11/guest-blogger-sergei-lemberg-from-lemonjusticecom-on-the-loser-pays-system-and-why-it-hurts-consumer.html

The Race to the Bottom comments on trends in “foreign cubed” securities fraud class actions.  (See recent ClassActionBlawg commentary on the subject here):

http://www.theracetothebottom.org/home/no-bright-line-test-for-foreign-cubed-securities-fraud-actio.html

Class Action Reports

Tom Willging of the Federal Judicial Center (FJC) comments on Consumer Law & Protection Blog regarding the FJC’s recent report on trends in class action filings following the Class Action Fairness Act (CAFA):

http://pubcit.typepad.com/clpblog/2008/11/new-federal-judicial-center-study-on-the-class-action-fairness-action-one-of-the-authors-speaks.html

International Class Action Law

Shareholders Foundation discusses proposed European collective action procedures and how they might compare to the U.S. class action model:

http://shareholdersfoundation.com/?p=4647

Jurist reports on the Sixth Circuit’s decision affirming an order granting in part and denying in part a motion for summary judgment in a class action against the Vatican arising out of alleged clergy abuse by the Catholic Church:

http://jurist.law.pitt.edu/paperchase/2008/11/sixth-circuit-allows-class-action.php

With Vigour and Zeal offers notes on a variety of issues touching on international and transnational class and collective action litigation:

http://kranenburgesq.com/blog/2008/11/wrapping-it-up-26-november-2008/

In Monday’s ClassActionBlawg entry, I commented about the possibility of “nested” class actions, or class actions seeking damages for breach of fiduciary duty for failing to make a claim in another securities class action.  Bruce Carton of Securities Docket was quick to point out in response that not only was I not the first comment about the possibility of the phenomenon, but that it had actually already happened, and that he came up with a name for it three years ago: “litigation about litigation.”

I might argue that “nested class actions” are really just a more specific subcategory of “litigation about litigation” but that wouldn’t be any fun.  Instead, the challenge this week is for you, the reader, to decide which term is going to be the VHS of class action scholarship and which is going to be Betamax (for those of you under 30, think HD-DVD versus Blu-Ray).  Of course, this probably means that you’ll pick something different altogether.  Maybe just: Malkovich, Malkovich, Malkovich, Malkovich…  Please feel free to post other suggestions in the comments below.

With that out of the way, 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 summarizes the latest in federal removal decisions discussing the $5 million amount-in-controversy standard under the Class Action Fairness Act (CAFA):

http://www.cafalawblog.com/-case-summaries-plaintiff-sues-whirlpool-over-washing-machines-whirlpool-gives-cafa-removal-a-spin-court-says-plaintiffs-motion-to-remand-is-all-washed-up.html

Class Action Defense Blog offers a summary of a decision addressing whether an offer of judgment to the named plaintiff under Rule 68, Federal Rules of Civil Procedure, can moot claims brought on behalf of a putative class:

http://classactiondefense.jmbm.com/2008/11/class_action_defense_casesstew.html

The VLW Blog reports on a Virginia court’s decision not to certify a would-be class of purchasers of Virginia lottery scratch tickets who allegedly had no chance of winning the grand prize:

http://www.valawyersweekly.com/vlwblog/2008/11/18/class-denied-for-lottery-lawsuit/

Class Action News

The UCL Practitioner offers a scoop on a forthcoming California Supreme Court decision in case involving the efforts that a plaintiff must take to settle a case short of litigation before being entitled to attorneys’ fees under a state fee-shifting provision.

http://www.uclpractitioner.com/2008/11/breaking-news-supreme-court-to-hand-down-vasquez-attorneys-fees-decision-tomorrow.html

According to these reports from the AmLaw Daily and Corporate Legal Times, class action defense firm Sonnenschein Nath & Rosenthal scored a pro bono victory on the plaintiffs’ side, representing a class of developmentally disabled residents of state-owned assisted living facilities against the state of Illinois.

http://amlawdaily.typepad.com/amlawdaily/2008/11/sonnenschein-se.html

http://www.cltmag.com/sonnenschein-secures-pro-bono-class-action-victory-for-disabled-clients.html

NewsBusters follows up on a story covered by countless blogs last week (see last week’s CABWR) about a class action filed against a well-known lingerer retailer alleging that its bras contained formaldehyde, causing skin rashes:

http://newsbusters.org/blogs/jeff-poor/2008/11/17/good-morning-america-attacks-victorias-secret-faulty-bra-lawsuit

PartTimePoker discusses a class action filed by a group of poker players challenging the constitutionality of a law prohibiting online gambling:

http://news.parttimepoker.com/2008/11/14/uigea-update-legal-challeneges-class-action-suits-and-interesting-interreptations/

North Carolina Business Litigation Report provides an update on a class action seeking to enjoin a high-profile bank merger:

http://www.ncbusinesslitigationreport.com/2008/11/articles/class-actions/wachovia-shoots-back-says-its-board-of-directors-fulfilled-its-fiduciary-duties-in-negotiating-merger-with-wells-fargo/

Class Action Trends

The D&O Diary discusses trends in securities class actions involving claims of “credential inflation” by corporate executives:

http://www.dandodiary.com/2008/11/articles/securities-litigation/credential-inflation-portrayals-proceedings-and-prose/

Tech Law Prof Blog and The Consumerist discuss a case reflecting a possible trend in class actions involving marketing practices of social networking Internet sites:

http://lawprofessors.typepad.com/tech_law_prof/2008/11/classmatecom-ma.html

http://consumerist.com/5085516/classmatescom-sued-because-classmates-werent-really-looking-for-him

Law and More examines the possibility of a class action suit on behalf of overparented children for causing shrunken nervous systems:

http://lawandmore.typepad.com/law_and_more/2008/11/you-shrunk-our-nervous-systems—class-action-suit-by-overparented-children.html

Gabe’s Guide to the e-Discovery Universe summarizes imminent trends in e-Discovery in class actions and other complex litigation to be spawned from the financial crisis.

http://gabesguide.com/?p=1437

Spam Notes covers class action trends in spam, social media, text messaging, and other technology, including this entry:

http://spamnotes.com/2008/11/12/text-message-price-fixing-class-action-filed-against-tmobile-sprint-verizon-att-and-vodafone.aspx

International Class Action Law

With Vigour and Zeal comments on trends relating to the res judicata effect of U.S. class action judgments in European countries (see related ClassActionBlawg entry here):

http://kranenburgesq.com/blog/2008/11/res-judicata-of-us-class-action-judgments/

Point of Law comments on an article discussing how entrepreneurial mass litigation might fare in Europe:

http://www.pointoflaw.com/archives/2008/11/will-aggregate.php

Tan Kin Lian’s Blog comments on a Financial Times article discussing a report on the lack of participation in U.S. securities class action settlements by Asian institutional investors (see ClassActionBlawg commentary here):

http://tankinlian.blogspot.com/2008/11/asians-fail-to-join-class-action-claims.html

Deadly Prose reports on a collective action being pursued on behalf of alleged victims sickened by tainted milk against a Chinese government-owned manufacturer (see ClassActionBlawg entry here):

http://www.deadlyprose.com/jurist-news-stories/2008/11/14/chinese-officials-fail-to-halt-class-action-law-suit.html

Mass Tort Litigation Blogdiscusses a decision by a Brazilian appellate court vacating an award in favor of a consumer “association” (reportedly formed by a doctor and three attorneys two weeks before the lawsuit was filed) against cigarette manufacturers for “indemnification,” finding that the defendants’ due process rights had been violated when they were not allowed to present certain evidence in their defense:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/11/brazil-vacates.html

Top Notch Class Action Lawyers

Finally, I noticed that H. Scott Leviant of The Complex Litigator is looking for new employment opportunities.  You’d do well to consider Scott if you have an opening for a top-notch class action lawyer.

http://www.thecomplexlitigator.com/2008/11/the-complex-litigator-will-consider-all-offers-of-gainful-employment-or-similar-associations.html