Archive for July, 2008

As reported this morning on NPR’s Morning Edition, the New York Times, and the Wall Street Journal’s Deal Book blog, among other news sources, the firm of Coughlin Stoia Geller Rudman & Robbins, recently named as lead counsel in a securities class action against French bank Société Générale, has sent a group of lawyers across the pond to build publicity, recruit plaintiffs, and collect potential evidence in France.  The lawsuit arises out of the highly publicized trading scandal earlier this year involving unauthorized trades totaling billions of Euros by one of its traders, Jérôme Kerviel.  Coughlin Stoia is no stranger to scandal itself.  Formerly Lerach Coughlin Stoia, it is the former firm of the recently convicted William Lerach.

The PR campaign in France is part of a growing trend to increase the pool of potential plaintiffs in U.S. securities class actions against multinational companies.  As the WSJ article aptly describes the dynamic:

Lawyers have an incentive to maximize the number of plaintiffs because it increases their fee payments. And non-American plaintiffs are attracted by the potential of enormous damage payments in the United States and a common provision protecting them from paying legal fees even if they lose.

The incentives underlying this trend are not hard to understand.  These attempts to create transnational plaintiff classes, however, raise complex issues of due process, choice of law, preclusion or res judicata, and full faith and credit.  Last year, a federal judge in New York entered an order allowing investors in France, England, and the Netherlands to be included in a securities class action against French conglomerate Vivendi.  A copy of that order is available on the Milberg website.  In deciding whether to allow foreign investors to be included, Judge Richard J. Holwell analyzed whether courts in each country would recognize a final judgment in the U.S. lawsuit as preclusive and binding on its citizens.  The court, relying on expert testimony and scholarly works discussing the law of the recognition of foreign judgments and res judicata of the various countries, determined that the plaintiffs had shown that it was more likely than not that courts in those three countries would recognize a U.S. class action judgment as preclusive as to absent class members.  With respect to England, the court admitted that the applicable law was unclear, but stated (on page 54):

While the issue is hardly free from doubt, based on the affidavits before it, the Court concludes that English courts, when ultimately presented with the issue, are more likely than not to find that U.S. courts are competent to adjudicate with finality the claims of absent class members and, therefore, would recognize a judgment or settlement in this

The court went on to find that the plaintiffs had not shown by a preponderance standard that courts in Germany and Austria would not recognize a U.S. class action judgment as preclusive as to absent class members.  Therefore, the court allowed investors in England, France, and the Netherlands to be included in the class, but rejected certification as to investors in Germany and Austria.  The 68-page opinion addresses a whole host of related issues and is worth a careful read.

According to the New York Times and WSJ articles, the court in the Société Générale case is expected to address in 2009 the issue of whether absent French investors should be included in a shareholder class.

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For those of you interested in class action reform issues abroad, Jocelyn Kellam and Stuart Clark of the Australian firm Clayton Utz have a new article out today entitled Australia: Be Alarmed Be Very Alarmed: Class Action Reforms Mooted, available at www.Mondaq.com (free registration may be required).  The article is critical of several pro-plaintiff reforms being considered by the State of Victoria that the authors say would “make even more plaintiff-friendly than the United States.”

Some of the proposed reforms described in the article may raise a few eybrows even for the most jaded class action defense lawyers here in the U.S.  They include a measure to give judges discretion to award cy pres remedies (for example, an award requiring a defendant pay money to charity when absent class members cannot be located), the addition of a legal assistance fund that would, among other things, help defray adverse cost awards, giving absent class members the right to be included in the class only if they consent (it is not clear to me whether this is an opt-in provision or something different), and a provision allowing for the joinder of plaintiffs who have claims against different defendants, as long as each plaintiff has a claim against one defendant.

The article notes that the reforms have been criticized as “read[ing] like a wish list for plaintiff lawyers” and “would make Victoria a veritable nirvana for plaintiff lawyers.”

The Clayton Utz website has various articles, papers, and brochures discussing Australian class action issues.  Here is a link.

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


Class Action Decisions


The UCL Practitioner comments on a California Court of Appeal decision discussing, in dicta, the viability of defendant classes in California…




… and as The Complex Litigator notes with regard to the same decision, the court “penned a brief gem of a comment that will be of interest to class action practitioners (and nobody else on the planet),” which makes it perfect for the CABWR!




CAFA Law Blog offers the latest in a series of CAFA musical revues, summarizing a recent South Carolina federal court decision on CAFA removal to the tune of a Rolling Stones medley:




Class Action Defense Blog provides a synopsis of a recent decision by the Judicial Panel for Multidistrict Litigation (MDL) addressing the appropriate venue for consolidation of 37 antitrust class actions pending in federal courts in 8 different federal courts where the parties, including different groups of plaintiffs, could not agree on a venue:




Legal Pad summarizes a recent Ninth Circuit Court of Appeals decision addressing the interplay between the removal bar imposed on state securities law claims imposed by section 22(a) of the Securities Act of 1933 and the removal provisions of the Class Action Fairness Act:




Pension Risk Matters discusses and provides links to a July 17 decision by the U.S. District Court for the Northern District of Illinois certifying a class for the purpose of adjudicating an ERISA claim for breach of fiduciary duty against fiduciaries of a 401(K) plan.  The entry also discusses new Department of Labor standards for disclosures of fees and expenses by fiduciaries of participant-directed individual account plans:




California Blog of Appeal comments on the outcome of the “first ever habeas class-action in California”:




Drug and Device Law Blog highlights the case of a class action defendant down on its luck in a nationwide products liability class action in Oklahoma:




Classified highlights a recent Eleventh Circuit Court of Appeals decision criticizing various aspects of a district court’s attorneys fee award in a successful class action brought under 28 U.S.C. 1983 on behalf of foster children in Georgia:


If you think Canadian class certification standards are lax (see below), check out this entry from Mass Tort Litigation Blog noting a recent Ninth Circuit Court of Appeals decision overturning a sua sponte class certification by the district court (the Ninth Circuit ordered a reassignment to a new judge on remand):




Class Action Commentary


In his blog, Michael’s Insight, Insight Communications CEO Michael Wilner provides  a public response to comments made by a reader, Robb Topolski (see his blog here), who serves as plaintiff in putative class action litigation against a competitor regarding ISP network management practices:




Michael Alan Miller provides a brief commentary on which side is the lesser of evils in the rash of class action lawsuits he predicts will follow recent reports about a link between cell phones and brain cancer risk:




Class Action News


HeadwatersNews reports on a class certification motion filed by the Nez Perce Tribe and 11 other named plaintiffs seeking certification of a class of tribes for the purpose of pursuing claims for a complete and historical accounting by the United States Department of Interior of lands held in trust for the tribes:




… and here is a more detailed commentary on the same case from Indianz.com:




Wage Law Blog offers news on actions by the California Division of Labor Standards Enforcement in response to the recent California Court of Appeal decision in Brinker Restaurant Corp. v. Superior Court.  (See ClassActionBlog entry here):




Class Action Trends


The D&O Diary provides a summary and links to a NERA Economic Consulting report entitled “2008 Trends: Subprime and Auction Rate Cases Continue to Drive Filings, and Large Settlements Keep Averages High”:




Infectious Greed remarks on statistics from the Stanford Securities Clearinghouse showing a 400% increase in subprime-related class action filings:




Class Action Reform

The Am Law Daily reports on a conference on securities class action reform co-sponsored by the Manhattan Institute for Public Policy and the U.S. Chamber Institute for Litigation Reform (ILR) to discuss an ILR report on securities class action trends and proposed reforms.  (See related ClassActionBlog.com entry here):




International Class Action Law


Point of Law offers a review of an article entitled “Canadian Class Action Law: A Flawed Model for European Class Actions” by John Beisner, Allison Orr Larsen, and Karl Thompson, available at The Federalist Society Website.  The article argues that liberal class certification standards applicable in various Canadian provinces lead to unintended consequences and create a potential for abuse that should give European policymakers pause in looking to Canadian class action standards as a model for their own reforms…




Point of Law observes that the loser pays rule may temper the possibility of abuse…




… but Canadian blog The Bizop News points to a recent Ontario Court of Appeal decision in arguing that the threshold for  class certification is only getting lower:




Pom Talk addresses issues relating to whether non-U.S. investors may serve as lead plaintiffs or participate as class members in U.S. securities class actions:



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Two news sources reported today on a forum sponsored by the Manhattan Institute to discuss a research paper releaseed by the U.S. Chamber of Commerce Institute of Legal Reform (ILR).  See the Wall Street Journal’s Market Watch section and an American Lawyer article by Brian Baxter posted on Law.com.  The report and press release is available for viewing at the IRL website: www.InstituteforLegalReform.com

Among numerous other statistics provided in the report, the report states that securities class action filings increased by 58% in 2007 over 2006 and that $51.8 billion was paid out in securities class action settlements over the last decade.  The report also states that the average dollar amount per settlement increased by 43%, not taking into account “billion dollar plus settlements,” and contends that “[b]etween 1995 and 2005, securities class action litigation caused the destruction of nearly $25 billion of shareholder wealth.”  The report offers various proposals for securities class action reform, including the adoption of the “Securities Litigation Attorney Accountability and Transparency Act,” (S.3033, H.R. 5463), or SLAATA, a bill being championed by Texas Senator John Cornyn.  (See this previous ClassActionBlawg.com entry).

The ILR has an unapologetically pro-business slant, but whether you agree or disagree with the organization’s views, the statistics provided and issues raised in the report are important ones to consider in the ongoing debate over securities and other class action reform.

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I recently came across Stanford Law School’s Global Class Actions Exchange, a fantastic resource for anyone interested in trends in class, group, mass and other collective actions outside the U.S.  The site offers a collection of papers presented by legal scholars from various countries on group action issues at a symposium held at Oxford University last December.  It also provides a collection of links to related class action statutes, proposed legislation and rules from various countries in South America, Europe, and Asia.  I have added a permanent link to this great online resource to the Lawyers’ Resources section on ClassActionBlawg.com.

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Yesterday, the California Court of Appeal issued an important class certification opinion in a wage and hour case, Brinker Restaurant Corp. v. Superior Court (2008 WL 2806613).  This decision was highlighted in an entry yesterday on The Complex Litigator (see yesterday’s CABWR).

The Baker Hostetler Employment and Labor Practice Team has issued an Executive Alert summarizing the decision and its possible implications for employers.  Here is an excerpt:

Employers should pay particular attention to their existing company policy on meal and rest periods and whether there is a policy discouraging off-the-clock work and time-shaving procedures. Employers also should be aware that this decision may be appealed to the California Supreme Court.

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


Class Action Decisions


The Complex Litigator has breaking news on a significant decision issued today by the California Court of Appeal reversing, on predominance grounds, a class certification order in a wage and hour class action involving claims for unpaid wages for hours worked during meal breaks.




CAFA Law Blog finds comparisons to Jeff Spicoli and Mr. Hand from Fast Times at Ridgemont High in a California federal court decision allowing discovery prior to a ruling on a motion to remand a class action removed under CAFA.




For a review of several recent federal decisions addressing CAFA issues, see this entry from The UCL Practitioner:




Class Action Defense Blog provides a thorough review of a recent Fifth Circuit Court of Appeals Decision discussing the applicability of the excusable neglect standard in assessing a class member’s request to opt out of a class action settlement after the opt-out deadline.




North Carolina Appellate Blog reviews a recent North Carolina Court of Appeals decision addressing the full faith and credit to be given the class certification decision of another state’s court (See last week’s CABWR for more on this decision from North Carolina Business Litigation Report).




Mass Tort Litigation Blog discusses Pennsylvania Supreme Court’s decision to grant review of class certification issues and due process issues relating to class certification of a breach of express warranty claim in a case filed against an automobile manufacturer for allegedly defective brakes…




…and more on the same decision from Point of Law




Overlawyered summarizes an opinion highlighted in a New York Law Journal article published last week in which United States District Judge Jed Rakoff refused to appoint one of two named plaintiffs as a class representative on inadequacy grounds, stating that the would-be representative was merely a “pawn of counsel” and that he would “not be party to a sham.”  (But note that Judge Rakoff did grant certification as to the other class representative).





Class Action Trends


D&O Diary discusses the impact of the economic downturn as a cause of increased securities class action filings…




… and recent developments in issues relating to federal jurisdiction, removal, and remand of certain securities class actions.




IP Finance comments on a recent Law.com article discussing potential trends in shareholder class actions spawned by patent disputes (see my commentary on this case here).






Class Reactions comments on a New York Times article discussing a class action filed on behalf of cruise ship passengers who purchased art at onboard auctions:




Wage Law offers commentary on another New York Times article about reports from the Government Accountability Office critical of the Department of Labor’s Wage and Hour Division’s performance and suggests that this poor performance in ensuring compliance has led workers to look to private attorneys for redress for wage and hour violations.




Central La. Politics responds to criticisms from a local radio personality on class actions against drug manufacturers:




Class Action Scandals


Point of Law provides an update on continuing fallout from the Dickie Scruggs bribery scandal:




Class Action Legislation and Reform


The Weekly Standard Blog addresses the highly publicized scandal involving Milberg Weiss attorney William Lerach and securities class action reform legislation proposed by Texas Senator John Cornyn entitled the Securities Litigation Attorney Accountability and Transparency Act (SLAATA).  (See my earlier commentary on the proposed bill here)



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Law.com has an interesting article today by Zusha Elinson of California legal journal The Recorder entitled “Patents: The New Class Action Frontier?”  The article discusses a recent settlement in a securities fraud case against Magma Design Automation.  The fraud case arose out of a declaration signed by its chief scientist in connection with an earlier patent dispute that he had developed the patents while still employed by a competitor, Synopsis, Inc.  The plaintiffs in the securities fraud case alleged that the company concealed the facts regarding the orgins of the patents, causing them injury when the stock price dropped.  According to the article, the dip in stock price did not occur Magma’s settlement of the patent case, but rather in response to an earlier, highly publicized analyst’s report of the inculpatory declaration.

Although the title of the Law.com article suggests a possible trend in securities fraud cases flowing from patent disputes, the securities fraud case brought against Magma was in large part a result of its unusual facts.  As the article notes, that the fact that patents are secured by public filings makes it very difficult in most cases for shareholders to argue that facts relating to the validity of patents were concealed.  On the other hand, the Magma case involved the alleged concealment of disputed facts that would not be reflected in the public patent filings.  So, a trend in class actions based on alleged failures to disclose “risks” relating to the validity of a companies patents is not out of the question simply because patents involve public records.  For a company facing litigation over the validity of a patent, the possibility of a securities fraud class action relating to the alleged facts underlying the patent dispute will at least have to be considered as a possibility.

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It is well-established that a properly tailored class action settlement release can preclude future actions by absent class members, even those who don’t respond to or otherwise participate in the settlement.  (As an example, see this recent Eleventh Circuit Court of Appeals opinion).  So, in agreeing to a class action settlement, the defendant assumes that it is buying peace from civil liability from all future actions arising out of the same alleged conduct.  There are a few notable exceptions, including the threat of opt out litigation (see this earlier ClassActionBlawg.com entry) and the possibility of collateral attack if the settlement does not meet due process standards (see this article by Gerson H. Smoger summarizing possible arguments supporting collateral attack).  For the most part, defendants’ counsel can minimize the risk of these residual exposures in crafting the terms of the settlement in the first place.  (See this article on claims-made settlements).

Possible residual exposures due to the threat of governmental action, however, are more difficult to avoid.  A settlement in a class action will generally buy the defendant protection from private civil exposure, but it may not prevent potential regulatory penalties or possible criminal liability.  It may also not protect the defendant from actions by state Attorneys General, the Federal Trade Commission, or other regulators for injunctive relief.  While it may not be possible to completely shield a client from these exposures, a lawyer can at least advise a client of their possibility and advise about other possible steps to mitigate them, such as voluntary changes in policy.  For an excellent discussion of the interplay between private class actions and the concurrent powers to enforce consumer’s rights by state attorneys general and the FTC in antitrust matters see this presentation by Patricia A. Conners of the Florida Attorney General’s office, from the FTC’s website. 

Even beyond these more obvious state and federal law enforcement and regulatory powers, there has been a growing trend in recent years for attorneys general and other governmental agencies to use the doctrine of parens patriae to also pursue the monetary claims of private individuals.  For a general discussion of the origins and recent trends in the use of this doctrine in aggregating private tort claims, see this uncredited Columbia Law Article entitled Constituting Parens Patriae.  Under the parens patriae doctrine, a governmental entity pursues claims for monetary relief for the benefit of its citizens by essentially standing in their shoes and pursuing the citizens’ claims in a representative capacity. 

Because of the representative nature of parens patriae actions, a propertly tailored release on behalf of class members in a civil case–at least theoretically–should foreclose the possibility of a governmental entity bringing an action for the same monetary relief.  But try telling that to the government.  A defendant that reached a settlement for 50% of the potential compensatory damages might find itself facing a suit by the government for the other 50%.  Similarly, a defendant that reached a claims-made settlement where not all potential claimants responded might face a parens patriae action filed on behalf of those who didn’t participate.  Or maybe the state or federal agency takes the position that it isn’t bound by the fact that amounts were paid at all.  The client can end up facing the possibility of defending against exactly the same monetary exposure for civil damages that it faced in the civil lawsuit.

Thankfully, most state officials have better things to do than file copycat lawsuits to try to squeeze more money out of a corporation that entered into a reasonable settlement of civil claims.  As a state official that I spoke to recently noted, AG’s consumer protection efforts are more commonly focused on exercising their law enforcement powers to prevent ongoing or future harm than on trying to ensure civil compensation for alleged victims of past civil wrongs.  On the other hand, the same official commented that one area of focus in reviewing the notices now required to be sent under the Class Action Fairness Act (see previous entry here and here), is to look for settlement agreements that are attempting to release potential parens patriae claims by the state or otherwise seek to interfere with the state’s sovereign power.

As a practical matter, because government officals typically do leave civil damages enforcement up to private civil enforcement in the courts, post-settlement government action is not likely to become an issue except in those cases where a governmental agency was already investigating or pursuing action relating to the subject matter of the civil dispute even before the settlement.  In those situations, it is a good idea to try ensure some resolution with the government before finalizing the settlement in the civil case.  Patricia A. Conners’ commentary cited above provides some examples of cases in which this type of global resolution has occurred in the antitrust context.

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


Class Action Decisions


Here is a great new entry from North Carolina Business Litigation Report summarizing a recent NC supreme court decision that addresses several interesting Rule 23 issues, including pre-certification dismissal without court approval and full faith and credit issues surrounding foreign states’ class certification decisions and settlement approvals.




The UCL Practitioner is back after a brief hiatus with an excellent summary of a recent California decision addressing pre-certification rights of putative class representatives.




CAFA Law Blog provides a rendition of Led Zeppelin’s “When the Levee Breaks,” re-mixed with a bit of CAFA removal local controversy exception law.




Wage Law has a thorough review of a recent California Court of Appeal decision upholding the validity of a municipal “living wage” ordinance in a class action seeking payment of the wages due under the ordinance.




Illinois Construction Blog comments on a recent decision addressing third party claims against a contractor who installed a credit car system payment at the premises of the vendor being sued in a would-be class action for violations of the Fair and Accurate Credit Transactions Act (FACTA).




Shaw Valenza LLP’s Blawg addresses a recent California decision granting a pre-certification motion to strike a plaintiff’s class allegations, a case addressed by other blogs in recent weeks (see July 1, 2008 CABWR).




Mass Tort Litigation Blog provides a summary and link to a slip opinion by the New Mexico Supreme Court upholding certification of a multistate insurance class action.




Several blogs, including Wallet Pop, Overlawyered, and Class Reactions commented on the decision of an Indiana trial court to grant class certification in a fraud case brought against the Hoosier Lottery.  (see my entry here).






Consumer Law and Policy Blog comments on the recent Seventh Circuit Court of Appeals decision holding that “less” means “less” for the purpose of interpreting the provision of CAFA permitting appeals of decisions to remand in cases removed under the Act…




…and more on the same decision from Class Action Defense Blog:




300-Page Class Certification Discussion Drafts


This post from Drug and Device Law Blog provides a quite-a-bit-more-concise summary of a 291-page “discussion draft” of a federal court’s class certification decision in a RICO case involving claims by third-party payors against a drug company.




Class Action Trends


The D&O Diary reports on trends in options backdating class action lawsuits:






The Modern Woman’s Divorce Guide offers a commentary critical of the filing and settlement of a class action against an auctioneer for sending unsolicited faxes.




Ellen Brown provides a commentary on her website webofdebt.com discussing the subprime mortgage crisis and the potential for “[m]assive class action suits by defrauded borrowers” under the Truth in Lending Act (TILA).




Electronic Discovery


The Complex Litigator has been following closely an e-discovery dispute and related public relations issues arising out of a lawsuit between Viacom and Google involving alleged copyright violations by users of the popular website YouTube.  Although the case is not a class action, the e-discovery issues in this case are similar to those that often arise in the class action context.






International Class Action Law


Canadian law blog, The Court, comments on a recent class action decision by the Supreme Court of Canada addressing the use of private tort law to redress individual harms allegedly caused by the government acting outside the scope of its authority.




Class Action Scandals


Horse racing blog Paulick Report provides an update on story about the link between a decorated racehorse and two Kentucky lawyers whose trial for wire fraud arising out of a fen-phen class action settlement ended with a deadlocked jury last week.




Here’s a link to the latest update in the trial from the WSJ Law Blog (through Mass Tort Litigation Blog)





Class Action Legislation and Reform


Point of Law provides continuing commentary on the FISA Amendments Act, passed by Congress and signed into law last week, which provides immunity to telecommunications companies from pending civil class action lawsuits:



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