Archive for November, 2008

CABWR Challenge of the Week Recap

I’m very disappointed to have to report that last week’s “Lay Down the Gauntlet” Challenge of the Week did not generate a single vote or comment.  This means that I must arbitrarily assign a label for class actions filed against institutional investors for failing to make a claim in another class action settlement.  I have delegated the selection to my dog, Monty, whose vote was to be recorded based on whether he wagged his tail in response to my uttering each of the three candidates.  For anyone who questions the fairness of this process, you should have thought about that when you decided not to vote.  Plus, you should know that Monty got third place one year in the NCAA basketball tournament office pool.  In truth, Monty wasn’t enthralled by any of the choices.  But he did raise an eyebrow and sniff in response to one, while simply maintaining a blank stare in response to the other two.  So, class actions seeking liability for failing to participate in other class action shall forever be called…


Congrats to Professor Peter J. Henning of White Collar Crime Prof Blog on his victory.  I’m sure he’ll be thrilled by his victory if he ever discovers that he even entered (in an entry from 2005).

Without further ado (and a few days later than usual), here are some blog entries from the week that was that might be of interest to class action practitioners…

Class Action Decisions

Feminist Law Professors discusses a California state court’s decision to grant class certification in a sexual orientation discrimination case filed against an online dating site for refusing to match gay and lesbian patrons:


Class Action Defense Blog reviews a Third Circuit Court of Appeals opinion reversing, on predominance and superiority grounds, a class certification order in a case filed by automobile dealers against a manufacturer:


Classified provides a synopsis of a decision by a Florida federal court addressing proof necessary to establish jurisdiction under the $5 million amount in controversy requirement in a case removed under the Class Action Fairness Act (CAFA) when the plaintiffs’ class definition was imprecise:


Drug and Device Law comments on a Tennessee Supreme Court decision from earlier this year holding that claims under the state’s consumer protection law could not be brought as class actions:


Class Action Trends

Point of Law comments on a well-known personal injury firm switching its emphasis from asbestos cases to ERISA class actions involving fees charged in connection with 401K plans:


The WSJ Law Blog discusses a request for attorneys fees in a class action settlement for work done by temporary lawyers:


Class Action News

North Carolina Business Litigation Report offers the latest developments relating to a class action brought to enjoin a high profile bank merger:


Securities Docket discusses the resolution of a battle between several large institutional investors for appointment as “lead plaintiff” in a securities class action against a mortgage lender:


The Tampa Bay Tribune reports on a putative class action filed in Florida on behalf of voters challenging Florida’s decision to move up its primaries despite objections from both major parties:


The UCL Practitioner summarizes the issues accepted for review by the California Supreme Court in a case implicating whether payment of alleged overcharges can constitute injury sufficient to support an action under the Unfair Competition Law (UCL) when those overcharges are passed on to third parties:


AMLAC & Fraud links to a CNN article reporting on the indictment of six people charged in connection with an alleged conspiracy to make fraudulent claims in class action settlements (see ClassActionBlawg entry about the story here):


Class Action Commentary

Sergie Lemberg of LemonJustice.com offers a guest commentary on The Complex Litigator addressing the loser pays rule common in jurisdictions outside the Europe and opining that the rule hurts consumers:


The Race to the Bottom comments on trends in “foreign cubed” securities fraud class actions.  (See recent ClassActionBlawg commentary on the subject here):


Class Action Reports

Tom Willging of the Federal Judicial Center (FJC) comments on Consumer Law & Protection Blog regarding the FJC’s recent report on trends in class action filings following the Class Action Fairness Act (CAFA):


International Class Action Law

Shareholders Foundation discusses proposed European collective action procedures and how they might compare to the U.S. class action model:


Jurist reports on the Sixth Circuit’s decision affirming an order granting in part and denying in part a motion for summary judgment in a class action against the Vatican arising out of alleged clergy abuse by the Catholic Church:


With Vigour and Zeal offers notes on a variety of issues touching on international and transnational class and collective action litigation:


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Lloyd’s, in cooperation with RAND Europe and the RAND Institute of Civil Justice (ICJ), has issued an intriguing report on trends in transnational class action litigation and related topics entitled Litigation and Business: Transatlantic Trends.  The report covers three hot topics that will be of interest to anyone following developments in transnational and global class, group, and other representative action litigation:

  • Third party litigation funding
  • Transnational class actions
  • International forum shopping

The report offers insights into developments in these areas and tips for businesses in dealing with the prospect of international litigation.  The report does not provide an exhaustive analysis of these topics, but it serves as a good primer into the types of issues with which business should be familiar relating to international class actions and similar litigation.

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Class action settlements are often criticized because claim verification requirements can seem onerous and seemingly intended to create a disincentive for class members to participate.  However, here is a story that may illustrate the legitimate rationale for including strict claims verification requirements.

According to a report published today on Alibaba.com, six individuals have been charged in federal indictments for an alleged scheme to file false claims in class action settlements totaling more than $40 million.  The defendants are charged with for a variety of crimes ranging from wire fraud to money laundering and tax evasion.  According to the report, the defendants are accused of creating fake corporations and falsifying documents in order to claim money from three class action settlements administered between 2001 and 2007.

It is unclear from the news report what verification requirements were used in connection with the three settlements and whether any additional requirements could have prevented the alleged fraud.  However, the story provides at least anecdotal support for the argument that a class action settlement must balance procedures intended to make it as easy as possible for class members to participate with with reasonable procedures intended to combat fraud by undeserving participants.

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“Public nuisance” environmental class actions have not fared well in the U.S. recently, but apparently not so in Canada.  Close on the heels of the Rhode Island Supreme Court’s decision in Rhode Island v. Lead Industries Association, the Supreme Court of Canada has affirmed a Quebec Superior Court’s finding of liability based on the theory that a company’s emissions constituted “excessive annoyance” to surrounding residents even though the company had complied with all applicable environmental laws and regulations and was otherwise without fault. 

I have not seen the opinion, but according to news reports, the court limited the availability of class action remedy to landowners, excluding tenants and family members.  This suggests that court was persuaded that claims for damage to property value could be treated on a class-wide basis, but not personal injury claims.  Whatever the limitation on the availability of damages, however, there can be little doubt that this decision will have a big impact on the course of environmental litigation in Canada, if not in the U.S. too.

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The October 2008 issue of the Federalist Society’s Class Action Watch is now available for free download at the organization’s website (see link to the March 2008 issue here).  This installment includes articles on punitive damage limits, medical monitoring, the selection of lead counsel in securities class actions, product-based public nuisance cases, the impact of conflicts of state law on class certification, and more…

Thanks to Ted Frank at Overlawyered for the tip.

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Class Action Blawgosphere Review “Lay Down the Gauntlet” Challenge of the Week

In Monday’s ClassActionBlawg entry, I commented about the possibility of “nested” class actions, or class actions seeking damages for breach of fiduciary duty for failing to make a claim in another securities class action.  Bruce Carton of Securities Docket was quick to point out in response that not only was I not the first comment about the possibility of the phenomenon, but that it had actually already happened, and that he came up with a name for it three years ago: “litigation about litigation.”

I might argue that “nested class actions” are really just a more specific subcategory of “litigation about litigation” but that wouldn’t be any fun.  Instead, the challenge this week is for you, the reader, to decide which term is going to be the VHS of class action scholarship and which is going to be Betamax (for those of you under 30, think HD-DVD versus Blu-Ray).  Of course, this probably means that you’ll pick something different altogether.  Maybe just: Malkovich, Malkovich, Malkovich, Malkovich…  Please feel free to post other suggestions in the comments below.

With that out of the way, here are some blog posts from the week that was that might be of interest to class action practitioners:

Class Action Decisions

CAFA Law Blog summarizes the latest in federal removal decisions discussing the $5 million amount-in-controversy standard under the Class Action Fairness Act (CAFA):


Class Action Defense Blog offers a summary of a decision addressing whether an offer of judgment to the named plaintiff under Rule 68, Federal Rules of Civil Procedure, can moot claims brought on behalf of a putative class:


The VLW Blog reports on a Virginia court’s decision not to certify a would-be class of purchasers of Virginia lottery scratch tickets who allegedly had no chance of winning the grand prize:


Class Action News

The UCL Practitioner offers a scoop on a forthcoming California Supreme Court decision in case involving the efforts that a plaintiff must take to settle a case short of litigation before being entitled to attorneys’ fees under a state fee-shifting provision.


According to these reports from the AmLaw Daily and Corporate Legal Times, class action defense firm Sonnenschein Nath & Rosenthal scored a pro bono victory on the plaintiffs’ side, representing a class of developmentally disabled residents of state-owned assisted living facilities against the state of Illinois.



NewsBusters follows up on a story covered by countless blogs last week (see last week’s CABWR) about a class action filed against a well-known lingerer retailer alleging that its bras contained formaldehyde, causing skin rashes:


PartTimePoker discusses a class action filed by a group of poker players challenging the constitutionality of a law prohibiting online gambling:


North Carolina Business Litigation Report provides an update on a class action seeking to enjoin a high-profile bank merger:


Class Action Trends

The D&O Diary discusses trends in securities class actions involving claims of “credential inflation” by corporate executives:


Tech Law Prof Blog and The Consumerist discuss a case reflecting a possible trend in class actions involving marketing practices of social networking Internet sites:



Law and More examines the possibility of a class action suit on behalf of overparented children for causing shrunken nervous systems:


Gabe’s Guide to the e-Discovery Universe summarizes imminent trends in e-Discovery in class actions and other complex litigation to be spawned from the financial crisis.


Spam Notes covers class action trends in spam, social media, text messaging, and other technology, including this entry:


International Class Action Law

With Vigour and Zeal comments on trends relating to the res judicata effect of U.S. class action judgments in European countries (see related ClassActionBlawg entry here):


Point of Law comments on an article discussing how entrepreneurial mass litigation might fare in Europe:


Tan Kin Lian’s Blog comments on a Financial Times article discussing a report on the lack of participation in U.S. securities class action settlements by Asian institutional investors (see ClassActionBlawg commentary here):


Deadly Prose reports on a collective action being pursued on behalf of alleged victims sickened by tainted milk against a Chinese government-owned manufacturer (see ClassActionBlawg entry here):


Mass Tort Litigation Blogdiscusses a decision by a Brazilian appellate court vacating an award in favor of a consumer “association” (reportedly formed by a doctor and three attorneys two weeks before the lawsuit was filed) against cigarette manufacturers for “indemnification,” finding that the defendants’ due process rights had been violated when they were not allowed to present certain evidence in their defense:


Top Notch Class Action Lawyers

Finally, I noticed that H. Scott Leviant of The Complex Litigator is looking for new employment opportunities.  You’d do well to consider Scott if you have an opening for a top-notch class action lawyer.


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I don’t have time for a full entry this evening because I’m off to the Sixth Annual Judicial Excellence in Colorado Dinner this evening, where my friend and role model, Denver County Court Judge Alfred C. Harrell, is among the honorees.

However, the ABA Journal sent the following request to blawgers signed up on its Blawg Directory today, so I thought I’d pass it along:

Dear Blogger,

The ABA Journal is surveying lawyers about the job market and the current state of the economy. We’d appreciate it if you could let readers know about our survey with a mention on your blog. Here is the link:


Survey results will be published in the January ABA Journal. If you post a note about our survey on your blog and send us the link, we’ll be sure you’re among the first to know when we’re ready to post the results. Answers will be kept confidential and used only in combination with all other responses received. If you have any questions or suggestions, please feel free to contact me.

Thanks for your help.


Stephanie Francis Ward
Legal Affairs Writer
ABA Journal

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According to Sundeep Tucker of the Financial Times, a recent study by the Goal Group, a UK-based “class action services specialist,” found that Asian institutional investors were not taking advantage of settlement funds available in U.S. securities class action settlements.  The article points to a cultural aversion to “corporate confrontation” and perceptions about the complexity of the claims process as reasons why Asian investors have chosen not to participate.

Tucker quotes Steven Everard, managing director of Goal, as saying that an institutional investor has a “clear duty” to seek class action proceeds on behalf of its clients, suggesting that the failure to make a claim in a U.S. securities class action settlement could expose an Asian institutional investor to liability itself.

Especially with class action procedures expanding overseas, the prospect of fiduciary liability for an institutional investor raises the possibility, at least conceptually, of “nested” class actions, where a party is sued in a class action for breach of fiduciary duty for failing to make a claim for benefits in another class action.  (“Nested” class actions is not a term of art as far as I know.  In fact, I just made it up, but I expect credit if it catches on!).  I have not heard of such a thing happening, but it’s probably only a matter of time…

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Chinese lawyers have decided to pursue a collective action against the government-owned manufacturer of milk that sickened tens of thousands of people earlier this fall.  As discussed in this October 1, 2008 ClassActionBlawg entry, victims and their lawyers were slow to turn to the courts for redress due at least in part to pressure from government officials that pursue redress through a promised government compensation program for victims rather than seeking a private remedy in the courts.  However, according to an AP article published today, lawyers representing a group of 100 families of alleged victims of the contamination have filed a lawsuit seeking damages for medical expenses, “trauma,” and compensation for the loss of family members who died.

According the AP article,

Chinese civil law says a collective lawsuit may be filed when there are at least two plaintiffs with a common complaint against the same defendant. Such lawsuits differ from U.S. class-action suits in that Chinese courts require the express consent of each plaintiff.

Therefore, to call the case a “class action” would be a bit of a misnomer.  The Chinese procedure appears to be more similar to a “mass action,” similar to many asbestos, pharmaceutical, and toxic tort cases filed in the U.S.

The article raises doubts whether the court will allow the plaintiffs to proceed as a group, noting that courts often decline to allow group actions and instead require that the cases be decided individually in order “to look more productive and avoid running afoul of Communist Party officials, who ultimately control the judiciary.”

Thanks to JURIST’s Paper Chase news service for tipping me off to the article.

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Baker Hostetler’s Employment and Labor Group issued an Executive Alert today on the Ninth Circuit Court of Appeals’ wage and hour decision in Sullivan et al. v. Oracle Corporation, (case no. 06-56649), where the court found that California state overtime rules apply to non-residents who perform work in California.  The group has this to say about the potential impacts of the decision on employers:

  • If an employee performs work in California, the overtime provisions of the California Labor Code apply to that employee, regardless of the employee’s state of domicile.
  • In light of this holding, it is likely that a non-resident employee who works in California is also subject to the California Labor Code regarding meal periods, rest periods, leave, termination, vacation pay and all other employment matters.

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