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Archive for April 1st, 2008

According to a March 24 article in The Lawyer.com, the Civil Justice Council (CJC), a statutorily-created advisory organization to the British government, is considering proposing changes to the UK justice system that could, among other things, provide for an opt-out procedure similar to that applicable in FRCP 23(b)(3) actions, as opposed to the opt-in procedure for collective actions currently available in many EU jurisdictions.  http://www.thelawyer.com/cgi-bin/item.cgi?id=131831&d=415&h=417&f=416.  As the article discusses, the CJC is considering reforms that would be a hybrid of existing UK and US procedures. 

A copy of a comprehensive February 2008 report by the CJC discussing “collective redress” reforms can be found at its website:

 http://www.civiljusticecouncil.gov.uk/files/collective_redress.pdf

As noted on page 168 of that report, “Other opt-out regimes have recently been introduced in Europe (Spain, Denmark, Norway, the Netherlands), each of which has different features and pre-conditions for use.”  The CJC’s January 2008 report includes an interesting comparison in participation rates in cases that utilized an opt-out process versus those that used an opt-in process.

Meanwhile, in Italy, a new law passed late last year that goes into effect this year 2008  provides for class action-style collective lawsuits to be filed by limited categories of associations.  The Mass Tort Litigation Blog has reprinted in English the relevant collective action provisions of the new law, which allows certain consumer associations to bring actions on behalf of collective interests:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/01/italys-new-clas.html

For more about the CJC, see http://www.civiljusticecouncil.gov.uk/about/about.htm

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The United States Supreme Court today issued a shocking sua sponte decision that has left the class action world scratching its collective head and searching for a backup plan.  The 9-0 per curiam decision, titled, In re Fed. R. Civ. P. 23, 2008 S. Ct. 412008, is just two lines long: “In the interest of all that is decent, right, and good, this honourable Court holds Rule 23, Federal Rules of Procedure, unconstitutional in violation of the Twelfth and Twenty-Ninth Amendments to the United States Constitution.  Until Congress finds a way to temper the sue-happy culture in which we now find ourselves, this Court is left no alternative than to abolish the abusive litigation tactics inherent in all cases filed under Rule 23.” 

The decision can be downloaded at www.supremecourtrule23isunconstitutionalsostopbeingsosuehappy.gov, although efforts to access the site earlier in the day proved unsuccessful.  According to AP radio reports, the site crashed when thousands of class action lawyers rushed to download a copy of the decision moments after its issuance.

Commentators immediately condemned the decision as rash, partisan, and illogical.   However, I believe that it is important to keep one thing in mind before we rush to judgment.  It is April Fools Day!

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