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 and The UCL Practitioner offer analysis of a recent California class certification decision addressing a variety of issues, including ascertainability of the class, evaluation of the merits in ruling on class certification, commonality and predominance:
http://www.thecomplexlitigator.com/2008/08/certification-d.html
http://www.uclpractitioner.com/2008/08/new-class-cer-1.html
Class Action Defense Blog provides a synopsis of a Second Circuit Court of Appeals decision upholding the district court’s order reducing a negotiated fee award from 8.5% to 3% in a securities class action settlement:
http://classactiondefense.jmbm.com/2008/08/class_action_defense_casesin_r_115.html
CAFA Law Blog summarizes a Massachusetts state court decision that looked to provisions of the federal Class Action Fairness Act (CAFA) in rejecting a coupon settlement, recognizing that while CAFA did not apply expressly in the state court proceeding, its provisions reflected “mainstream” concerns with coupon settlements:
http://www.cafalawblog.com/-case-summaries-judge-says-chew-on-this-in-disapproving-settlement-in-smokeless-tobacco-class-action.html
Mass Tort Defense reviews a recent decision by the United States District Court for the Eastern District of Missouri denying certification of a class of rice farmers claiming damages resulting from genetically modified rice contamination (synopsis also provided by Class Action Defense Blog, cited in last week’s CABWR):
http://www.masstortdefense.com/2008/08/articles/mdl-court-rejects-class-action-in-genetically-modified-rice-litigation/
Consumer Advertising Law Blog discusses a Fifth Circuit decision reversing class certification in a case involving allegations of unsolicited faxes in violation of the Telephone Consumer Protection Act (TCPA):
http://www.consumeradvertisinglawblog.com/2008/08/the-fax-of-the-matter-court-holds-that-consumer-protection-case-not-proper-for-class-certification.html
Florida Appellate Blog discusses a recent Florida state court decision addressing the practice of “picking off” a class representative by offering to settle for the full amount of his or her claim in an effort to moot the class action:
http://www.floridaappellateblog.com/2008/08/ucc-notice-requirements-and-picking-off-a-class-representative-is-not-condoned.html
Dispatch Monthly Magazine reports on a federal court’s decision to grant class certification to a class of police dispatchers in a case challenging department regulations for returning to work after sick or injury leave:
http://www.911dispatch.com/db/index.php?option=com_content&task=view&id=1996
HousingBath.com discusses the denial of class certification in a lawsuit filed against a condominium developer by purchasers seeking to void their contracts due to alleged defects in the building:
http://housingbath.com/2008/08/daily-soak-august-25.html
TortsProf Blog comments on an article from the Legal Intelligencer (reprinted at www.Law.com) discussing a ruling by the Third Circuit Court of Appeals reversing the dismissal, on preemption grounds, of a consumer class action against a manufacturer for alleged failure to warn about the dangers of mercury in tuna:
http://lawprofessors.typepad.com/tortsprof/2008/08/mercury-in-tuna.html
Class Action News
More from American Thinker, Death by 1000 Paper Cuts, National Review Online’s The Corner, Libertyville, Under the Dome, Spencer Blog, and LukeFord.net on Warren Buffett’s recent suggestion that contributors file a class action against John Edwards for concealing his extramarital affair (See ClassActionBlawg.com entry here)…
http://www.americanthinker.com/blog/2008/08/buffett_suggests_edwards_suppo.html
http://deathby1000papercuts.blogspot.com/2008/08/john-edwards-campaign-refunds-more.html
http://libertyville.wordpress.com/2008/08/25/buffet-calls-for-class-action-on-edwards/
http://corner.nationalreview.com/post/?q=YTIyMDI3ZGUzZmNkZGI0ZWE2ZWUzOGNlMDc4ZmMzNzg=
http://projects.newsobserver.com/under_the_dome/buffett_says_donors_should_sue_edwards
http://www3.allaroundphilly.com/blogs/delcotimes/gils/2008/08/buffett-on-edwards-sue-em.html
http://lukeford.net/blog/?p=3966
… with follow up from NewsBusters.org and Perfunction regarding efforts by Edwards to refund contributions to just one of his “Two Americas” (Spoiler: it’s the one with the class action lawyers in it, not the one with Buffett’s proposed class action plaintiffs):
http://www.newsbusters.org/blogs/p-j-gladnick/2008/08/25/web-scoops-msm-edwards-refunds-contributions-one-his-americas
http://perfunction.typepad.com/perfunction/2008/08/coda-john-edwar.html
Class Action Commentary
Legal Theory Blog summarizes an article by Vanderbilt Law Professor Richard A. Nagareda with the fairly self-explanatory title, “Class Certification in the Age of Aggregate Proof”:
http://lsolum.typepad.com/legaltheory/2008/08/nagareda-on-cla.html
Mass Tort Litigation Blog provides an abstract and link to an article by Michigan law student Patrick Luff criticizing the weighing of the costs and benefits that could result from certifying a class in making a class certification decision:
http://lawprofessors.typepad.com/mass_tort_litigation/2008/08/new-scholarship.html
Overlawyered comments on a curious case of forum shopping where plaintiffs’ counsel was successful in pursuing a nationwide class action filed in Oklahoma seeking to apply Texas law after a Texas court had previously rejected the same claims, holding that Texas law did not permit the type of nationwide class that the plaintiffs sought to pursue:
http://overlawyered.com/2008/08/the-inverted-federalism-of-grider-v-compaq/
Nonlawyer Commentary
See this www.eHow.com article for a non-lawyer’s perspective on the practical aspects of starting a personal injury class action lawsuit:
http://www.ehow.com/how_4491550_personal-injury-class-action-lawsuit.html
And if you are looking for one consumer’s viewpoints on participating in a class action settlement, see this entry from Queercents:
http://www.queercents.com/2008/08/22/are-class-action-lawsuits-worth-your-time-and-money/
Legal Ethics
Wage Law has posted a request from the California State Bar for public comment on a proposed ethics rule regarding “Offers of Settlement Conditioned on Client’s Waiver of Statutory Right to Seek Attorney’s Fees”:
http://wagelaw.typepad.com/wage_law/2008/08/public-comment-sought-on-proposed-ethics-rule.html
Class Action Trends
Apparently www.SueEasy.com is still alive and going strong, according to these entries from WebWare and MakeUseOf.com:
http://news.cnet.com/8301-17939_109-10020627-2.html?part=rss&subj=Webware
http://www.makeuseof.com/dir/sueeasy-file-complaint-class-action-lawsuit/
Class Action News
Sagwatch Blog reports on the setting of a trial date in a class action filed by former NFL players against the NFL Players Association seeking payments under a group licensing agreement:
http://blog.sagwatch.net/2008/08/25/sept-22-trial-date-set-in-players-inc-lawsuit/
International Class Action Law
Point of Law comments on a unique feature of British law that allows investors to purchase an ownership interest in litigation and examines the challenges of allowing a similar mechanism in the United States:
http://www.pointoflaw.com/archives/2008/08/beyond-continge.php
The D&O Diary comments on what NERA has called “the largest settlement in a class action securities case in Canadian history,” the relationship between the Canadian case and the U.S. subprime crisis, and its potential impact on trends in subprime litigation in the U.S.:
http://www.dandodiary.com/2008/08/articles/subprime-litigation/subprime-litigation-a-glimpse-of-the-end-game/
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Prospecting for Class Action Gold in Canada
Posted in Class Action Trends, Commentary, International Class Action Law, tagged canadian class action law, Class Action Trends, class counsel, employment class action, entrepreneurial litigation, International Class Action Law, lead counsel, private ordering on August 27, 2008| Leave a Comment »
Canadian attorney Howard Levitt has an interesting article published today on FinancialPost.com about trends in Canadian employment class action law. The article offers some practical preventative tips for employers, but also makes a few keen observations about the dynamics surrounding a recent increase in employment class actions in Canada, including this gem:
Levitt’s description conjures images of Canada as the wild frontier of employment class action law. Certainly, there are many examples of young lawyers who have hit it big in class action lawsuits in the U.S. But the inexperienced class action lawyers roaming the country in search of class actions like 49ers speculating for gold have long since settled down to cultivate the fertile class action ground south of the border.
The roving bands have settled into established firms and consortiums of trial lawyers with the expertise, resources, and influence to edge out even the most enterprising of young lawyers. This often occurs behind the scenes through a process called “private ordering,” politely described in the Federal Judicial Center’s class action Pocket Guide for judges as when counsel competing for the role of lead counsel in a case agree amongst themselves to divide up responsibilities and fees. Sometimes, however, the struggle becomes more public, as it did when several different groups of firms competed for the role of lead counsel in this recent case. “Auctioning,” or competitive bidding for the role of class counsel, has also been used in some cases.
So, if you’re a young enterprising class action lawyer in the U.S., you may have to pay your dues a bit before you earn your first private jet. And for those would-be prospectors thinking about heading north to stake your claims, in addition to a quality gold pan and a sturdy mule, you’ll need to submit an application to the National Committee on Accreditation.
For some online articles discussing the phenomenon of “entrepreneurial litigation” try these links:
http://www.austlii.edu.au/au/journals/MULR/2006/14.html#Heading131
http://www.rand.org/pubs/monograph_reports/MR969/MR969.ch10.pdf
http://www.law.harvard.edu/programs/olin_center/corporate_governance/papers/04.Halfteck.class-action.pdf
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