Here are some blog entries from the week that was that might be of interest to class action practitioners:
Class Action Art?
In one of the more original class action-related blog postings ever featured in the CABWR, Artist Izhar Cohen has created a graphic description of an Israeli court’s recent class action ruling in a case filed against a milk container manufacturer in his blog My Window (see CAB entry discussing the decision here):
http://izharcohen.wordpress.com/2008/10/20/297/
Class Action Decisions
The Complex Litigator and Wage Law break the news on the California Supreme Court’s decision to grant a petition for review in the wage and hour class action case, Brinker v. Superior Court:
http://www.thecomplexlitigator.com/2008/10/breaking-news-p.html
http://wagelaw.typepad.com/wage_law/2008/10/supreme-court-to-review-brinker.html
Also see The Complex Litigator for this commentary on a California Court of Appeal decision reversing de-certification of a class action brought under the California Unfair Competition Law (UCL) based on the ascertainability of class members:
http://www.thecomplexlitigator.com/2008/10/court-reverses.html
The UCL Practitioner summarizes a California Court of Appeal decision addressing the distribution of funds set aside to pay class action settlement awards in a claims-made settlement (See CAB entry discussing claims-made settlements here), when the parties have not agreed to a specific method for dealing with those funds…
http://www.uclpractitioner.com/2008/10/new-class-action-settlement-decision-cundiff-v-verizon-california-inc.html
…and a Ninth Circuit Court of Appeals decision discussing choice of law issues in a case involving the enforceability of a class arbitration waiver clause:
http://www.uclpractitioner.com/2008/10/ninth-circuit-opinion-on-no-class-action-arbitration-clauses-hoffman-v-citibank-south-dakota-na.html
ContractsProf Blog reports on a New York appellate court decision upholding the denial of a motion to dismiss in a would-be class action filed against a credit card company over alleged improper disclosure of gift card fees:
http://lawprofessors.typepad.com/contractsprof_blog/2008/10/gift-card-class.html
Phoenix New Times blog Valley Fever discusses a federal court’s ruling in favor of a class of inmates challenging the constitutionality of their treatment and the conditions at the Maricopa County, Arizona jail:
http://blogs.phoenixnewtimes.com/valleyfever/2008/10/breaking_fed_judge_rules_again.php
The Overtime Blog discusses a wage and hour class certification decision discussing the information that the defendant was required to produce in order to assist the plaintiff to update address information for class members:
http://overtimelaw.blogspot.com/2008/10/northern-district-of-illinois-court.html
CAFA Law Blog has an uncharacteristically serious analysis of a case highlighting the importance of a putative class definition in determining whether jurisdiction exists under the Class Action Fairness Act (CAFA):
http://www.cafalawblog.com/-case-summaries-class-definition-can-be-the-determinative-factor-in-deciding-cafa-diversity-jurisdiction.html
Class Action Defense Blog offers a synopsis of a Fifth Circuit Court of Appeals decision reversing class certification in a case under the Telephone Consumer Protection Act (TCPA), holding that the plaintiff could not prove lack of consent to receive fax advertisements on a class-wide basis:
http://classactiondefense.jmbm.com/2008/10/class_action_defense_casesgene.html
International Class Action Law
China Business Law Blog and China Law Blog both comment on a New York Times article discussing the challenges facing efforts to seek redress in China’s courts from injuries allegedly caused by the recent tainted milk scandal. (See previous CAB entry here):
http://chinabusinesslawblog.com/?p=60
http://www.chinalawblog.com/2008/10/chinas_courts_and_tainted_milk.html
Class Action (and Related) Commentary
Point of Law offers analysis of a challenge to the constitutionality of the FISA Amendments Act of 2008, which permitted the U.S. Attorney General to seek dismissal of pending class actions against telecommunications companies for their roles in cooperating with a federal surveillance program:
http://www.pointoflaw.com/archives/2008/10/back-in-court-f.php
FP Legal Post expresses disgust over a battle between Canadian class action firms over the right to represent the plaintiff class in a settlement with a life insurance company:
http://network.nationalpost.com/np/blogs/legalpost/archive/2008/10/16/battle-over-class-action-clients-disgusting.aspx
Mass Tort Litigation Blog comments on and makes a request for input on the phenomenon of Internet forums dedicated to communication between mass tort claimants and their attorneys:
http://lawprofessors.typepad.com/mass_tort_litigation/2008/10/query-on-messag.html
North Carolina Business Litigation Report explains some of the nuances of a shareholder class action filed in the North Carolina Business Court seeking to enjoin a bank merger:
http://www.ncbusinesslitigationreport.com/2008/10/articles/class-actions/shareholder-class-action-filed-in-north-carolina-business-court-to-enjoin-wachoviawells-fargo-merger/
Class Action News
Classified summarizes recent class action-related news:
http://www.carltonfields.com/classactionblog/blog.aspx?entry=242
The Am Law Daily and the NLJ Legal Pad/LA report on the filing of a class action lawsuit under the federal WARN Act and various state wage laws by several former employees against the recently dissolved international law firm Heller Ehrman:
http://amlawdaily.typepad.com/amlawdaily/2008/10/heller-faces-cl.html
http://www.lalegalpad.com/2008/10/three-laid-off-heller-ehrman-employees-file-class-action-complaint-against-the-firm.html
Love Note Press reports on a plea from a Singapore politician for investors not to file securities class action suits against failing banks:
http://lovenotepress.com/2008/10/22/low-thia-khiang-urges-affected-investors-not-to-file-class-action-suits-against-banks/
… and more on the story and related news from The Online Citizen:
http://theonlinecitizen.com/2008/10/wp-concerned-about-class-action-suitby-investors/
Overlawyered comments on an Australian newspaper’s report on a class action against the International Olympic Committee, asserting that the organization failed to act quickly enough in taking action against a website that was using its trademarks to scam ticket purchasers:
http://overlawyered.com/2008/10/bogus-olympic-ticket-scam/
Class Action Trends
The D&O Diary provides an update on the latest in litigation filed in the wake of the global financial crisis and government bailout:
http://www.dandodiary.com/2008/10/articles/subprime-litigation/global-bailouts-us-lawsuits/
E-Tips discusses trends in decisions on the enforceability of class arbitration waivers in various jurisdictions in the U.S. and Canada:
http://www.dww.com/?p=1353
Gabe’s Guide to the e-Discovery Universe describes a harrowing escape from a hurricane and throws in some tidbits on e-discovery and subprime litigation trends:
http://gabesguide.com/?p=1064
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Second Circuit Unwilling to Reject “Foreign Cubed” Class Actions Categorically
Posted in Class Action Trends, Commentary, Federal Court Decisions, International Class Action Law, tagged 10b-5, conduct test, effects test, foreign cubed, International Class Action Law, morrison v. national australia bank, transnational class action on October 28, 2008| 10 Comments »
For those interested in the internationalization of class action law, be sure to read the Second Circuit’s decision in Morrison v. National Australia Bank Ltd., 2008 WL 4660742 (2d Cir. Oct. 23, 2008). (Thanks to The 10b-5 Daily and Point of Law for tipping me off to the decision).
I have previously commented on the trend in efforts to expand securities class actions filed in U.S. Courts against foreign defendants to include foreign nationals who bought stock on foreign exchanges. (See entries dated July 31 and Sept. 6). Courts and commentators have begun to refer to these cases as “foreign cubed” class actions. These earlier entries summarized United States district court opinions addressing whether foreign investors who bought stock on a foreign exchange should be included as members of a class or subclass in a securities class action in a U.S. court. This analysis has focused on the court’s prediction of whether courts in the foreign jurisdiction would recognize the a judgment in a U.S. class action as preclusive as to absent class members.
The Morrison decision addresses the circumstances in which a U.S. court has subject matter jurisdiction to resolve a dispute between foreign investors and a foreign company at all. The court rejected the argument that there should be a bright-line rule prohibiting jurisdiction by U.S. courts in all “foreign cubed” class actions. Instead, the court reiterated an analytical framework that it had previously adopted in other cases involving securities claims against foreign defendants. Here are the highlights of that analytical framework:
Technically, much of the opinion is dicta because in the end the court affirmed the lower court’s dismissal for lack of subject matter jurisdiction, holding that not enough of the conduct giving rise to the securities fraud claims occurred in the United States. The plaintiffs had argued that the “conduct test” could be satisfied because allegedly falsified numbers that had been communicated to investors in Australia had been prepared in Florida by a U.S. subsidiary. Weighing a variety of factors, the court concluded that the portion of the conduct that took place in Florida was not significant enough to justify the exercise of jurisdiction. Among other factors, the court noted that the subsidiary’s corporate obligations were exclusively to its parent and that the actual communication of the allegedly false statements was carried out in Australia by the publicly traded parent. Another important consideration was the impact of the U.S. Supreme Court recent decision in Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008), holding that an act of deception without public disclosure is, at best, too remote in the chain of causation to support proof of reliance in a securities fraud case.
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