One of my law partners, Todd Lebowitz, resident in BakerHostetler’s Cleveland office, has put together a fantastic new legal blog focusing on the hot topic of employee misclassification. The blog, launched this week, already has some fantastic content to help employers and practitioners navigate the tricky landscape of who is an employee and who is an independent contractor. Make sure to check it out!
I recently authored a practice tip for the ABA Consumer Litigation Committee website entitled Consumer Class Action Defense: A Checklist for the First 10 Days, highlighting some key things that class action defense counsel should do or consider within the first 10 days after a class action is filed. Audra Petrolle of The Rose Law Group in Phoenix authored a complementary practice tip for plaintiffs’ attorneys. Click the links below to see both practice tips.
I attended the National Institute on Class Actions in Las Vegas last week, and it was probably the best one yet, considering the powerhouse lineup of speakers and excellent topics. This year’s event also marked the 20th anniversary of the Institute, and the 50th anniversary of the introduction of the modern class action rule in 1966. I’ve tried to include a short summary of some of the highlights of each of the presentations below. For more on what you missed, click here for the full program brochure.
Class Actions 101, 201, and 301
As has become a tradition in recent years, the conference kicked off with Yoga, along with a series of class action training sessions for attorneys and judges new to the practice area. As in past years, the training portion of the program was led by class action expert Drew McGuinness and Program Chair Dan Karon, with help this year from Lauren Guth Barnes and E. Colin Thompson. In addition to the basic Class Actions 101 course and the advanced Class Actions 201 course, new this year was Class Actions 301, taught by Karon, which covered legal writing tips for class action lawyers.
“Viva Review!” The Past Year in Class-Action Action.
Instructors: Professor John C. Coffee, Jr., Professor Alexandra D. Lahav
The main program kicked off with what has become an annual tradition at the Institute. Class action scholars John Coffee and Alexandra Lahav gave their annual rundown on the key developments in the courts on class action issues over the past year and their predictions for where class actions are headed in the coming year. One highlight for me was Lahav’s summary of divergent rulings on the question of ascertainability, which continues to be an area of uncertainty and controversy in the lower courts.
“From Mirage to Immense.” The Genesis, Creation, and Evolution of Rule 23.
Host: Daniel R. Karon
Guest: Professor Arthur R. Miller
What better way to celebrate the 50th anniversary of the modern formulation of Rule 23 than to hear the story of the 1966 amendment by someone who actually helped draft it. Titan of American civil procedure, Professor Arthur Miller, gave a colorful history of the development of Rule 23, including entertaining stories about how a small group of now-well-known attorneys and academics, including Miller, Ben Kaplan, Archibald Cox, and Charles Alan Wright, came together in the mid-1960s to develop the innovations that gave us the class action rule we know today. A highlight was the story of how Miller used a manual typewriter to memorialize what ultimately became 23(b)(3) while in the back seat of Kaplan’s car on a ferry ride to the Kaplans’ summer home in Martha’s Vineyard. A neighboring car mistook the sound of the typewriter as a sign that the boat was sinking.
“Winning Big or Crapping Out.” Class-Action Ethics from a Real-Life Perspective.
Host: Melissa H. Maxman
Guests: Honorable Gene E.K. Pratter, Professor Joshua P. Davis, Thomas G. Wilkinson, Jr.
This panel examined a series of hypotheticals raising ethics issues, specifically how the courts sometimes treat ethics issues differently when they arise in the class action context. Among the colorful examples was the situation in which a plaintiffs’ class action attorney has a consensual sexual relationship with a woman who he later discovers is an absent class member.
“A Winning Hand or a Flop?” After 50 Years, Are Class Actions Still Legit?
Host: E. Michelle Drake
Guests: Michelle K. Fischer, Professor Richard D. Freer, Patrick J. Ivie, Jocelyn Larkin
In this presentation, a diverse group of plaintiffs’ and defense attorneys, a public interest attorney, settlement administrator, and an academic discussed common criticisms of modern class actions and insights into future trends. I was particularly interested to hear the panelists views on the viability of claims-made settlements and the benefits and criticisms of using electronic and other non-traditional notice in settlement adminstration.
“Behind the Curtain.” Examining Class Actions from the In-House Perspective.
Host: Sabrina H. Strong
Guests: Jennifer Bechet, Karin F.R. Moore, Ken K. Patel, Robert E. Bailey
This presentation offered insights from a panel of in-house attorneys whose companies face class action lawsuits. I thought one of the key points, reinforced in different ways by several panelists and consistent with my own experience, is that the threat of class actions doesn’t ordinarily have a deterrent effect on corporate business practices because most companies aren’t looking to intentionally harm their customers.
“Pit Boss Powwow.” Exactly What Is the MDL Judge College and How Does It Work?
Host: Vincent J. Esades
Guests: Honorable Barbara J. Rothstein, Honorable Jack Zouhary, Honorable J. Frederick Motz Sure
A behind-the-scenes treat, this panel of federal judges offered insights into how judges are selected and trained to preside over multi-district litigation proceedings. I thought it was notable that in recent years, practitioners have been brought in to speak at the annual training program to offer a practitioner’s perspective about what works and what doesn’t in complex MDL proceedings.
“Hitting the Jackpot!” A One-on-One Class-Action Conversation with Judge Richard Posner.
Host: Daniel R. Karon
Guest: Honorable Richard A. Posner
In one of the highlights of the Institute this year (along with Professor Miller’s presentation), Judge Richard Posner sat down via teleconference for an interview with Dan Karon. Judge Posner’s remarks were filled with unique insights and a few zingers including his comment that class action settlements are “an invitation to shenanigans” where, in his view, the class is at the mercy of the plaintiffs’ attorneys, and the Defendants interested in getting off as lightly as they can, so the judiciary has an important role in scrutinizing the terms. He also talked about his process for reaching a decision in a case. He considers the case as a problem to be solved in general terms, comes up with a practical solution to that problem that makes sense, and then evaluates whether there is anything in the law that “blocks” that solution. At one point he quipped, “I don’t get a lot out of Rule 23,” preferring instead to consider the Rules of Civil Procedure in general terms and reaching a holistic judgment.
“Small Wagers, Big Results.” How the Supreme Court’s Tyson Foods Decision Could Affect Your Practice.
Host: Andrew J. McGuinness
Guests: Honorable Terrence G. Berg, Eric Grannon, James Langenfeld, Ph.D., Paul Novak, Joseph M. Sellers
This panel presentation on expert witnesses and statistical sampling was highlighted by a mock oral argument of a class certification proceeding in which the plaintiff sought to introduce statistical sampling evidence in an antitrust case. The argument offered a practical way of evaluating how issues presented by the Supreme Court’s decision in Tyson Foods might play out in a context other than wage and hour employment litigation.
“Into the Stratosphere or Simply a Circus Circus?” After Fifty Years, What’s Class Actions’ Future?
Host: Fred B. Burnside
Guests: Professor Brian T. Fitzpatrick, Professor Robert H. Klonoff, Arthur H. Bryant, William Donovan, Jr.
A fitting end to an outstanding program, this panel of top class action scholars and practitioners offered insights into the current state of class actions and what might be in store in the near future. Here are some highlights on the predictions offered by the panelists: 1) class actions are not going away; 2) the continued growth of mass commerce will continue to spawn class action litigation; 3) Justice Scalia’s death will have a significant impact on class action jurisprudence going forward and the judiciary is likely to get less friendly to defendants in the short-term; 4) technology will make a big difference for the better in managing class action litigation; 5) defendants will continue to come up with creative, far-reaching ways of limiting class actions; 6) plaintiffs’ attorneys will continue to bring class actions when a) they think they can make money and/or b) they think they will advance the public good; 7) there will be some good class actions and some horrible ones; 8) look out for states to pass new consumer protection laws similar to the New Jersey New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA); 9) the TCPA and all-natural litigation booms will continue in the near future; 10) The CFPB will broadly define consumer finance services; 11) more class actions will go to trial; 12) what happens with the enforceability of arbitration clauses will have a big impact on the viability of many categories of class actions in the future; 13) look for more class actions in the federal courts in New York state.
Posted in Class Action Trends, CLE Programs, legal ethics, rule 23 | Tagged 1966 amendments to rule 23, ABA, arbitration, cfpb, class action, class action ethics, class action jurisprudence, class action law, Class Action Trends, coffee, ethical, ethics, expert witness, in-house, institute, jpml, lahav, mdl, mdl judge college, miller, posner, rule 23, scalia, statistical sampling, tccwna, tyson foods, wright & miller | Leave a Comment »
Robinson & Cole Partner Wystan Ackerman, fellow class action blogger and friend of ClassActionBlawg.com, recently sent me a note about an exciting upcoming class action conference sponsored by DRI. The conference will be held in Washington D.C. on July 21-22, 2016 and features a top notch slate of speakers and two days worth of cutting-edge class action related content tailored to the defense bar. Click the link below for a program description and additional links to the registration site.
Price Waterhouse Coopers recently published an interesting study entitled Daubert challenges to financial experts, a yearly study of trends and outcomes, 2000–2015 (click the link to download a copy).
The study includes citations to recent opinions on the subject, along with practical insights from attorneys, including yours truly. It concludes with a variety of useful statistics on the outcomes of Daubert challenges to financial experts, including the types of cases in which the change is made, the types of experts excluded, the jurisdictions in which exclusion rates are higher or lower, and the reasons for exclusion, among other things. The study includes information on Daubert challenges in the class certification context that will no doubt prove useful in dealing with other types of experts as well as financial experts. Be sure to check it out!
Posted in Articles, Daubert-Experts, Securities Class Actions | Tagged class action, class action expert, class certification, daubert, expert testimony, price waterhouse coopers, pwc, statistics, study, white paper | Leave a Comment »
The United States Supreme Court issued its highly-anticipated decision this morning in Spokeo, Inc. v. Robins, No. 13-1339, a case that many commentators have been following as a potential barometer for the Court’s treatment of consumer and class action issues following the death of Justice Antonin Scalia. As it turns out, Justice Scalia’s absence did not impact the outcome of the case, which was decided by a 6-2 majority (though there is of course no way of knowing how Justice Scalia’s participation might have impacted the rationale).
The Petition for Certiorari had originally been granted to answer the question “whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.” http://www.supremecourt.gov/qp/13-01339qp.pdf (Emphasis added).
The majority opinion, authored by Justice Alito, answered this question in the negative, holding that a plaintiff must establish “concrete” harm in order to have standing to pursue a statutory cause of action in federal court. However, the interesting part of the opinion is the Court’s analysis of what may suffice as “concrete” harm. In particular, the Court held, Congress may identify “intangible” harms and elevate those harms to the status of concrete injuries supporting Article III standing. Examples of these intangible harms cited in the opinion include reputational harms suffered for common law torts, like libel and slander, that are difficult to measure, as well as other intangible public harms, such as voters’ inability to access public information.
After reiterating that a plaintiff seeking relief for a statutory violation must prove a harm that is both particularized and concrete and my not simply rely on a procedural violation of the statute, the Court did not go on to evaluate whether Robins himself had demonstrated a concrete injury flowing from the Fair Credit Reporting Act violations alleged in the case before the Court. Instead, the Court remanded the case to the Ninth Circuit Court of Appeals to perform that analysis, making clear that “[w]e take no position as to whether the NinthCircuit’s ultimate conclusion—that Robins adequately alleged an injury in fact—was correct.”
My own early take on the decision is that while the opinion does not set definitive rules on the types of intangible injuries that are sufficiently concrete to support Article III standing, the opinion goes a long way towards solidifying and clarifying the analytical framework under which statutory standing issues, and Article III standing issues more generally, should be evaluated. For the time being, it will be up to the lower courts to apply this analytical framework to specific cases.
Posted in Supreme Court Decisions | Tagged alito, article III, article III standing, class action, concrete, edelson, fair credit reporting act, fcra, intangible, particularized, robins, scalia, spokeo, standing | Leave a Comment »
I’m pleased to announce that I will be chairing the ABA’s Western Regional CLE Program on Class Actions and Mass Torts, now in its third year, on May 27. This year’s program will be held at the Bar Association of San Francisco’s offices at 301 Battery St San Francisco, CA 94111-3236. The program starts at noon with lunch and concludes with a cocktail hour. The event is co-sponsored by the BASF and presented by the Class Actions and Derivative Suits, Mass Torts, Insurance Coverage Litigation, and Securities Litigation Committees of the ABA Section of Litigation. This year’s topics include:
- Refuse to Defend at Your Own Risk? An Insurer’s Refusal to Defend and Settlement in Class Actions; When is Settlement Collusive?
- Class Action Settlements: Trends, Lessons Learned, and Creative New Approaches
- Takeaways on Forum Non Conveniens and Related Issues in Multi-District Litigation After Air France 447.
- No Big Law? No Problem? How Small Firm Plaintiff and Defense Lawyers are Managing Some of the Largest Class Action Litigation Matters.
To register and to view the program agenda, click the link below. Hope to see you there!
Posted in CLE Programs | Tagged ABA, air disaster, aviation, basf, big law, cads, class action, class action insurance, class action settlement, class actions and derivative suits, insurance, mass torts, san francisco, securities, small firm | Leave a Comment »