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Archive for October 8th, 2008

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

Class Action-Related Post of the Week

Rebecca Tushnet’s 43(B)log provides a nice overview of a Massachusetts federal court’s decision to certify two multi-state subclasses of consumers in a case against pharmaceutical companies for allegedly inflating the Average Wholesale Prices (AWPs), used in establishing reimbursement schedules under Medicare and insurance plans, in order to increase their market share.  The case is intriguing from a procedural perspective because in analyzing the elements of class certification for the purpose of certifying a multi-state consumer class, the court relied on the results of a bellwether trial held to address the claims of two classes of Massachussets consumers, which resulted in a verdict on the merits for the plaintiffs.  Based on the merits determination made in that trial, the court concluded that a multi-state class action could be certified despite differences in different state laws relating to consumer protection, fraud, damages, and statutes of limitation:

http://tushnet.blogspot.com/2008/10/grouping-prevails-in-multistate.html 

Class Action Decisions

The UCL Practitioner reports on a California Court of Appeal decision holding that a court’s gag order prohibiting a newspaper from reporting on a class action filed against it by employees was an unlawful prior restraint:

http://www.uclpractitioner.com/2008/10/class-action-ag.html

Health Plan Law comments on a decision by the U.S. District Court for the Northern District of California holding that a plaintiffs’ complaint in a putative class action seeking health benefits for a putative class of policyholders state an ERISA claim under the pleading standards set forth in Bell Atlantic Corp. v. Twombley, where the complaint did not expressly allege that the defendant was the plan administrator:

http://healthplanlaw.com/?p=765

Class Action Defense Blog provides a synopsis of a West Virginia federal court’s decision denying a motion for class certification in a putative medical monitoring class action due to a finding that individual issues would predominate:

http://classactiondefense.jmbm.com/2008/10/class_action_defense_casesrhod.html

FDA Law Blog summarizes a Ninth Circuit Court of Appeals ruling reversing the dismissal of a class action brought on behalf of a putative class of federally funded medical clinics to enforce, as third party beneficiaries, alleged contractual restrictions on drug prices in agreements between the federal government and drug manufacturers:

http://www.fdalawblog.net/fda_law_blog_hyman_phelps/2008/10/ninth-circuit-d.html

The Southeast Texas Record reports on an order granting summary judgment in favor of various defendants in a toxic tort class action brought against oil companies alleging that emissions from oil refineries had polluted the surrounding neighborhoods, causing property damage and personal injuries:

http://www.setexasrecord.com/news/contentview.asp?c=215213

Securities Docket provides a synopsis of an Eleventh Circuit Court of Appeals decision upholding a lower court’s dismissal of a securities class action on the grounds that the plaintiff had failed to adequately plead wrongful intent:

http://www.securitiesdocket.com/2008/10/08/eleventh-circuit-affirms-dismisal-of-securities-class-action-against-home-depot-and-executives/

Class Action Trends

Mark Aufflick discusses a novel new method that has been proposed for delivering notice of a class action:

http://mark.aufflick.com/blog/2008/10/09/using-windows-update-to-find-class-action-plaintiffs

Art Market Monitor comments on a case filed by a dissatisfied art collector against an art dealer and museum for selling limited edition prints without a number:

http://www.artmarketmonitor.com/2008/10/06/class-action-reaction/

Class Action Resources

Many thanks to Werner R. Kranenburg of the European securities litigation blog With Vigour and Zeal for including ClassActionBlawg in a listing of helpful online class action-related resources:

http://kranenburgesq.com/blog/2008/10/more-class-action-resources/

Federal Civil Practice Bulletin summarizes the articles included in a recent University of Pennsylvania Law Review Symposium issue on developments relating to the Class Action Fairness Act (CAFA):

http://federalcivilpracticebulletin.blogspot.com/2008/10/u-penn-law-review-publishes-articles.html

Legal Research Plus discusses a new resource from BloombergLaw Reports for keeping up with trends in class action law:

http://legalresearchplus.com/2008/10/03/new-resources-for-keeping-up-with-class-action-litigation-and-global-class-action-developments/

Class Action Commentary

Tort Deform cites a New York Times article in which three law professors assert that corporations are less likely to use mandatory arbitration clauses in non-consumer agreements as in consumer agreements and argues that this trend is indicative of the unfairness of using mandatory arbitration clauses in consumer agreements…

http://www.tortdeform.com/archives/2008/10/if_arbitration_is_so_wonderful.html

… and Canadian law blog eLegal hails a recent Washington Supreme Court decision invalidating a class arbitration waiver in a consumer contract as a “big win for consumers”:

http://canton.elegal.ca/2008/10/06/us-court-decision-big-win-for-consumers/

Home Equity Theft Reporter offers commentary on a recent Seventh Circuit Court of Appeals decision holding that homeowners could not pursue a claim for rescission of a subprimehome loan under the Truth in Lending Act (TILA) on a class basis:

http://homeequitytheft.blogspot.com/2008/10/more-on-federal-court-ruling.html

f/k/a comments on the dismissal of an anti-feminist’s class action seeking a ruling that private clubs’ ladies’ night discounts are unconstitutional and offers a more extensive analysis of ladies’ night cases (of which there are surprisingly many):

http://blogs.law.harvard.edu/ethicalesq/2008/10/04/lady-judge-says-ladies-nights-are-not-unconstitutional/

Class Action News

Wage Law provides an update on an appeal to the California Supreme Court of the much-publicized wage and hour class action decision involving alleged unpaid wages for work during meal and rest breaks, Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal. App. 4th 25:

http://wagelaw.typepad.com/wage_law/2008/10/brinker-petition-for-review-status.html

Class Action-Related Scholarship

Mass Tort Litigation Blog contributor Elizabeth ChambleeBurch provides an abstract to her article discussing problems with nonclass aggregation of mass tort claims.

http://lawprofessors.typepad.com/mass_tort_litigation/2008/10/procedural-just.html

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