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Archive for December, 2008

If you’re looking for a refreshing story about a class action settlement that isn’t all about money, the LA Times has a story for you.  This article by Teresa Watanabe recounts the history of a series of class actions brought against the U.S. government to obtain amnesty for a classes of immigrants who came to the U.S. legally but later lost their legal immigrant status during the 1980s.  For one Turkish immigrant who stands to regain his legal status as a result of the latest settlement, the news was reason for elation over the possibility of fulfilling a dream of serving his adopted country.

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Thomas R. Bender, who blogs on Nuisance Law, recently posted an article entitled Pollution vs. Lawful Product: Nuisance vs. Non-Nuisance, which clarifies some nuances and distingushing characteristics between the Rhode Island Supreme Court’s decision in Rhode Island v. Lead Industries Association and the Supreme Court of Canada’s recent decision in St. Lawrence Cement Inc. v. Barrette.  A November 22 ClassActionBlawg entry shortly after the St. Lawrence Cement decision had been announced offered a somewhat superficial observation about the parallels between the two cases.  Anyone looking for a more in-depth analysis of the similarities and differences and a more thorough discussion of the claims and issues in the two cases should read Bender’s excellent article.

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

Class Action-Related Post of the Week

Kudos to the folks at Drug and Device Law Blog on their excellent review, with the help of O’Melveny’s John Beisner, of the most recent draft of ALI’s Principles of Aggregate Litigation:

http://druganddevicelaw.blogspot.com/2008/12/umm-what-he-said.html

Class Action Decisions

Securities Docket summarizes and links to the latest decision from the U.S. District Court for the Southern District of New York discussing federal jurisdiction in a “foreign cubed” securities class action:

http://www.securitiesdocket.com/2008/12/01/sdny-dismisses-vodafone-securities-class-action-for-lack-of-subject-matter-jurisdiction/

Class Action Defense Blog discusses a pair of Federal district court decisions in class actions involving claims under the Fair Debt Collection Practices Act (FDCPA):

http://classactiondefense.jmbm.com/2008/12/class_action_defense_cases_ste.html

http://classactiondefense.jmbm.com/2008/12/fdcpa_class_action_defense_cas_11.html

North Carolina Business Litigation Report discusses a North Carolina federal court’s decision denying a motion for a preliminary injunction and discusses other developments in a class action seeking to enjoin a high profile bank merger:

http://www.ncbusinesslitigationreport.com/2008/12/articles/class-actions/nc-business-court-denies-motion-for-preliminary-injunction-in-wachoviawells-fargo-merger-case/

The Complex Litigator offers a synopsis of a California Supreme Court decision addressing the availability of punitive damages in wage and hour class actions:

http://www.thecomplexlitigator.com/2008/12/for-the-moment-california-law-is-clear-no-punitive-damages-for-violations-of-labor-code-provisions-r.html

The UCL Practitioner provides a link to the latest in California Court of Appeal decisions addressing the injury-in-fact requirement for standing under the Unfair Competition Law (UCL) after Proposition 64:

http://www.uclpractitioner.com/2008/12/new-ucl-standing-decision-troyk-v-farmers-group-inc.html

Wage Law offers a synopsis of a California decision discussing the impact of practical difficulties in ascertaining class membership on the viability of class certification in a wage and hour case:

http://www.californiawagelaw.com/wage_law/2008/12/harper-v-24-hour-fitness.html

Class Action News

Spam Notes discusses and provides a link to the complaint in a putative class action seeking liability against an Internet company for allegedly violating the Washington State gift card law by removing credits from customers’ “stored value accounts” due to inactivity:

http://spamnotes.com/2008/12/08/class-action-filed-against-skype-for-wa-gift-card-violations.aspx

WDSU.com reports on a class action against the City of New Orleans challenging the constitutionality of using automated cameras to catch drivers who run red lights:

http://www.wdsu.com/news/18215832/detail.html?rss=no&psp=news

Mercury News discusses an order by a California federal judge certifying a class in a case against a collection firm for alleged unlawful threats in bad check notices to debtors:

http://www.mercurynews.com/localnewsheadlines/ci_11139841?source=rss

The Wall Street Journal Law Blog provides details on an unsealed indictment of defendants accused of participating a conspiracy to collect class action settlement proceeds using forged documents and fake companies.  (See previous ClassActionBlawg commentary on the story here):

http://blogs.wsj.com/law/2008/12/03/class-action-fraud-alive-and-well-philly-prosecutors-say/

Class Action Scholarship

Mass Tort Litigation offers links variety of interesting scholarly articles on class action-related issues, including this abstract of an article by Tanya Monestier of Queen’s University entitled Personal Jurisdiction Over Non-Resident Plaintiffs in Multi-Jurisdictional Class Actions: Have We Gone Down the Wrong Road?

http://lawprofessors.typepad.com/mass_tort_litigation/

Class Action Trends

The D&O Diary discusses the “new wave” in subprime credit crisis litigation:

http://www.dandodiary.com/2008/12/articles/subprime-litigation/the-evolving-credit-crisis-litigation-wave/

Class Action Commentary

Point of Law responds to a commentary on the Cato Institute’s Cato-at-Liberty blog arguing that the Class Action Fairness Act (CAFA) is contrary to the originalist interpretation of the United States Constitution.  (See ClassActionBlawg reaction to the same commentary here):

http://www.pointoflaw.com/archives/2008/12/moller-constitu.php

Overlawyered discusses the reasons for the race to the courthouse shortly after a tragic event like the Black Friday shopper trampling:

http://overlawyered.com/2008/12/5-minute-after-suits-and-the-wal-mart-trampling/

A climate change skeptic responds to a researcher’s claims that he can calculate the difference between damage caused by a storm and the damage that would have been caused but for global warming, on The Air Vent:

http://noconsensus.wordpress.com/2008/12/10/class-action-suits-to-stop-global-warming/

International Class Action Law

Jurist reports on the rejection of a collective action brought in China by alleged victims of the recent tainted baby formula scandal.  (See previous ClassActionBlawg entry here):

http://jurist.law.pitt.edu/paperchase/2008/12/china-court-rejects-tainted-milk-class.php

Canadian Tax Resource discusses a bulletin issued by the Canadian Revenue Agency describing the department’s views on the tax implications of a Canadian securities class action settlement:

http://blog.taxresource.ca/cra-provides-direction-on-the-nortel-class-action-settlement/

Financial Post discusses the possibility of cross-border class action litigation by U.S. plaintiffs’ firms following the expected failure of a leveraged buyout of a Canadian company:

http://www.financialpost.com/story.html?id=1057781

The Court briefs a recent decision by the Supreme Court of Canada upholding the imposition of strict liability against a cement company in a public nuisance class action.  (See earlier ClassActionBlawg commentary on the case here):

http://www.thecourt.ca/2008/12/10/recognizing-no-fault-civil-liability-in-respect-of-neighbourhood-disturbances-in-quebec-civil-law/

Oh, and by the way, the title of this week’s CABWR is not a typo.  I just thought I’d make a belated pitch for that open Illinois Senate Seat.

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In the wake of the Wall Street meltdown, recent press on subprime mortgage class action litigation has focused on securities class actions and cases involving subprime investments.  Less has been written about trends in class actions seeking redress for alleged predatory lending practices.

However, that doesn’t mean that there aren’t any cases involving predatory lending practices.  In fact, as discussed in this editorial by Andy Meek of the Memphis Daily News, local governments in the Memphis area may be considering a resolution authorizing legal action against mortgage companies for certain lending practices that some say caused individuals poor and minority communities to accept bad loans.  A similar action is reportedly already pending in Baltimore.

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Mark Moller of the Cato Institute posted this commentary today arguing that true originalists should not be so quick to extol the virtues of the Class Action Fairness Act of 2005 (CAFA), which is often hailed as a conservative victory in tort reform.  Moller and various other conservative commentators argue that the Act, which expands the statutory grant of federal diversity jurisdiction of the federal courts over certain class actions, is unconstitutional.  He concludes that “[t]ort reformers who are faithful to the original meaning of the Constitution must confront the uncomfortable fact that the Constitution takes key provisions of CAFA, the tort reform movement’s greatest legislative achievement, off the table.” 

The argument mirrors one made by Florida personal injury lawyer David J. Sales, who, in an October article, remarked that CAFA is a “decidedly anti-federalist” measure that erodes States’ judicial powers in favor of greater federal jurisdiction.  (See ClassActionBlawg Commentary here).  

Could it be that the class action case of The American Trial Lawyers Association and The Federalist Society v. United States is just around the bend?

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Local Phoenix ABC affiliate KNXV-TV has a report today about a consumer scam in which people are told that they are eligible for money in a class action.  The scam involves individuals being contacted by telephone to tell them that they are part of a class action lawsuit and are entitled to recover hundreds or thousands of dollars, but that they first need to send in money to help pay for court costs.

The KNXV story refers to an alert on the website www.consumeraffairs.org, which can be found here.  Somewhat ironically, one of the Google ads in the left-hand column of that alert (at least when I viewed it) points readers to a website where they can “Get Cash Now” for their structured settlements in lawsuits.

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Given that it took me until Saturday to get last week’s Class Action Blogosphere Weekly Review out, I plan to wait until next week to do the next one.  In the meantime, here’s an interesting tidbit that Werner Kranenburg of With Vigour & Zeal  tipped me off to earlier in the week.  David I. Michaels, law clerk at the Delaware Court of Chancery and a UCLA law student will be publishing an article in the Rutgers Law Journal entitled An Empirical Study of Securities Litigation after WorldCom.  The abstract, which is available at SSRN, begins:

In this article I present the first empirical study analyzing whether and to what extent In re WorldCom, Inc. Securities Litigation impacted class action litigation brought under Section 11 of the Securities Act of 1933, one of the securities laws’ principal liability provisions. . . .

For those interested in trends in securities class actions, this article looks like an interesting read.

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