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Archive for April, 2009

Hilary Hehman, Senior Research Analyst, Office of Court Research, Judicial Council of California, offered the following comment today, which deserves its own entry:

The Judicial Council of California just released the first in a series of reports detailing the findings of a study of class action litigation in California state courts. The first interim report has a section that discusses the CAFA effect in California. It is empirical legal research, but may still be of interest to you.

http://www.courtinfo.ca.gov/reference/caclassactlit.htm

The first report is titled Findings of the Study of California Class Action Litigation, 2000-2006.  It provides statistics and analysis of trends in class action litigation in California.  The report provides a wealth of information that promises to be helpful to policymakers and practitioners alike.  Well done, Hilary, and please keep us posted on future reports.

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According to SCOTUS Blog, the ABA Journal, and other sources (see the citations within Debra Cassens Weiss’s ABA Journal article), the U.S. Supreme Court has accepted certiorari in Perdue v. Kenny A., et al., Case No. 08-970.  The appeal involves an attorneys fee award to attorneys who successfully prosecuted a class action on behalf of thousands of foster children in Georgia’s two most populous counties, Fulton and DeKalb.  The lawsuit resulted in consent decrees that require significant reforms to the State’s and counties’ foster care systems.  Although the case involves an action brought by attorneys for a non-profit public interest organization and their cooperating counsel, the outcome of the Supreme Court case could have broad repercussions on the attorneys fees awardable in a variety of cases in federal court, including run-of-the-mill class actions.   The Court accepted review of the following question:

Can a reasonable attorney’s fee award under a federal fee-shifting statute ever be enhanced based solely on qualify of performance and results obtained when these factors already are included in the lodestar calculation?

For more information on the history of the case with links to key documents, see childwelfare.net:

http://childwelfare.net/activities/kennya/kenny_a_case_overview_20060718.html

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A colleague tipped me off today to the Supreme Court of Canada’s April 2 decision in Canada Post Corp. v. Lépine, 2009 SCC 16.  In that case, Canada’s high court upheld a lower court decision limiting the reach of a settlement class action filed in Ontario, purportedly on behalf of all residents of Canada other than residents of British Columbia.  The Supreme Court of Canada’s decision was an appeal from the Court of Appeal for Quebec, arising from a competing, parallel class action filed on behalf of Quebec residents.  The Quebec court had refused to recognize the validity of the Ontario court’s judgment approving the settlement in that case.

The high court’s ruling:

  • offers an analysis of the “Legal Framework for the Recognition of External Judgments,” including issues of comity in evaluating the binding effect of a judgment in one province on residents of another province,
  • discusses the concept of forum non conveniens in the context of national class actions, 
  • addresses issues of proper class notice in multi-jurisdictional settlements, and
  • comments on problems of national class action settlements in Canada in general, including the need for communication and cooperation between trial courts in different jurisdictions and the need for intervention by provincial legislatures in creating a more comprehensive framework for national class actions.

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ConsumerAffairs.com issued this report Tuesday about a “class action” lawsuit being considered in China against an American manufacturer for importing allegedly contaminated shampoo products into that country. 

Recent attempts by Chinese litigants to seek a collective civil remedy in the Chinese courts against government-controlled Chinese companies for manufacturing allegedly tainted baby formula have met with serious government resistance (see various previous CAB entries summarized here).  It will be interesting to see how a collective products liability lawsuit against an American company will fare by comparison.

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The newest Internet craze, “pico-blogging” may be over as soon as it started.  Lawyers representing two users of the popular pico-blogging site, www.a.com, filed a class action Wednesday accusing the site’s owners of fraud, copyright infringement, violations of the Colorado Consumer Protection Act, loss of consortium, and a variety of other legal transgressions.

According to the complaint, filed in the Eastern District of Colorado in Lamar, the site mislead users into paying for something that had no practical or artistic utility.  The case is Borradaile v. A.com, E.D. Colo., Case No 09-54313-AF.

Pico-blogging burst on the scene in late 2008 when www.a.com went online.  The idea is simple.  Users are challenged to express themselves using a single ASCII character.  The site generated an immediate buzz among marketing professionals, professional coaches, consultants and the blogging avant-garde.  More than a million users signed up within the first week.

But according to lawyers for the plaintiff, Taylor A. Borradaile, the site was little more than a scam.  According the complaint, “a.com’s founders perpetrated a fraudulent scheme through which users were tricked into spending their valuable time and money on an activity that, contrary to the false and misleading claims of its founders, had no social, artistic, or utilitarian value.”

Willy Shideler, Borradaile’s attorney, put it this way, 

The idea of pico-blogging is ridiculous, if you think about it.  What can you possibly communicate using a single character?  Nothing.  But the a.com folks generated such a frenzy over the site that everyone lost their heads.  Taylor got caught up in that.  He was given the promise of exponential growth in his client base and the opportunity for a new frontier of artistic expression.  He got neither.  In the end, the site didn’t let him do  anything except spew out a few pronouns and indefinite articles.

Shideler granted that some “artsy” types might find some arguable value in the minimalistic form of communication fostered by the site.  “We might not have filed the suit just because of the single letter issue, but on top of that, these guys pulled the bait-and-switch on folks.”  Shideler was referring to the so-called “*” memberships offered by a.com. Shideler’s client, Borradaile, signed up for the basic a.com account. It wasn’t long, however, that he realized that the basic account only allowed users to use the alphanumeric characters y, h, q, t, w, and 4.  Users must pay a $12.95 monthly membership to get “full functionality.”  Quipped Shideler, “we think that the selection of  letters for the free account is clear evidence of bad faith.  The basic account didn’t even include any true vowels.”

Attempts to contact the site’s Norwegian creators, brothers Ole and Olaf Odegard, were only partially successful.  The only contact information available for the Odegards was the a.com administator’s account. In response to our question (“?”) we received a rather terse response (“!”).

For anyone outraged either by a.com’s practices or the lawsuit itself, make sure you check the date of this entry.

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