Archive for August, 2009

Anyone interested in curious in an outsider’s critique of the U.S. class action system should be following the debate over the adoption of an opt-out collective action scheme in the U.K.  Opponents of opt-out collective actions point to the “looniness” of the American system as a reason why not to adopt a similar scheme.  Proponents say that a U.S.-style class action procedure is the only way to preserve justice and access to the courts for consumers.  Should the U.K. try out lawsuits, American Style, or should they follow the European Wayand leave mass justice to government regulators?  This op-ed from the Times Online entitled Class Actions: Why Are We Waiting? offers arguments from both sides of the debate.

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As reported by Yuma, AZ CBS affiliate KSWT TV, the Arizona Supreme Court issued an opinion today holding that denials of class certification are not subject to interlocutory appeal under the state’s regular appeals procedure.   A slip copy of the decision is available at the court’s website: Garza v. Swift Transportation Co., No. CV-08-0382-PR (Ariz., August 24, 2009).  It is important to note that the court recognized that interlocutory appeals of class certification decisions may still be allowed in “extraordinary” cases under the state’s “special action jurisdiction” rules.

In reaching the decision, the court overruled its own prior decision and instead relied on federal jurisprudence prior to the addition of FRCP 23(f) in 1998, which now expressly permits discretionary interlocutory appeals in the federal courts.  In addition to illustrating how state court rules on interlocutory appeal of class certification decisions may differ from the federal courts, the case reflects how state court rules may lag behind the Federal Rules of Civil Procedure and how the state courts may apply outdated federal precedent in interpreting their own rules.

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International law firm Pinset Masons’ blog Out-law.com has an interesting article today on the potential for the implementation of a collective redress system for consumer claims in the European Union.   The article addresses two reports summarizing hearings and comments received by the European Commission on the potential adoption of an EU-wide consumer collective action procedure. 

The reports are less than definitive in proposing a solution or even in defining the problem.  Consumer and industry groups predictably at odds over whether a cross-border scheme for resolving mass consumer claims is a good idea, but there appears to be plenty of interest in the topic.  The report on a meeting held in Brussels in May reports an attendance of more than 200, consisting of consumer and industry representatives, public officials and legal experts.  Attendees came from nearly all EU member countries. 

Both reports offer interesting reading on the debate over collective actions in Eurpoe and the issue of transnational dispute resolution within the EU framework. For the report on the meeting and comments received, see these links: report of public hearing, overview of results of consultation.

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Trial lawyers everywhere are saying a collective “I told you so” to a tort reformer who has filed a would-be class action against the City of Sacramento for its practices in towing cars parked in no-parking zones.  For more details on the story, see this entry in the Los Angeles Times’ L.A. Now Blog.

The plaintiff, Fred Heistand, is general counsel for the Civil Justice Association of California, an organization that, according to its website,

works to reduce the excessive and unwarranted litigation that increases business and government expenses, discourages innovation, and drives up the cost of goods and services for all Californians

Evidently to counterbalance the societal costs generated by his own suit, Mr. Heistand reportedly has pledged to donate any award of attorney’s fees obtained in the suit to the CJAC.

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In my semi-rant about class action press releases yesterday, I surmised that a good plaintiffs’ class action lawyer might be able to shed more light on the rationale behind filing a press release when a new class action complaint is filed.  Sure enough, a good plaintiffs’ class action lawyer, Kimberly Kralowec of The UCL Practitioner, responded with a comment, and eloquently at that.  Here’s what she had to say:

One reason for such press releases is to generate contacts from additional witnesses to the alleged wrongdoing. They can also serve to prompt contacts from putative class members, who (depending on the type of case) often have relevant information and/or may eventually join a case as a class representative, should one of the original representatives withdraw or become disqualified for any reason.

Thanks for the insight, Kimberly.  I still find them annoying, but I’ll try to keep that to myself in the future.

Here is another comment from Rich Walden of The Walden Law Firm in Little Rock:

A better explanation in my work is that the Private Securities Litigation Reform Act requires that a notice be published within 20 days of the filing of the complaint.

I must admit, Rich, statutory compliance is a pretty valid reason.

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Not really.  I just had to vent.

Try typing the phrase “class action” into a Google news search on any given day and you’ll find hundreds of catchy headlines like:

  • Blue Sky Mining Company Hit with Class Action Suit Over Deplorable Work Conditions
  • Dewey Cheatham & Howe Announces Major Class Action Against Quickie Mart Stores
  • Class Action Could Bring the Widget Industry to its Knees
  • Law Offices of Atticus Finch Files Class Action Against Radley, Inc.
  • Class Action Accuses Blogger of Defamation for Complaining About Class Action Press Releases, …

… You get the idea.

To the casual observer, many of these dramatic headlines might sound like real news, rather than a plaintiffs’ firm with a good SEO consultant supplementing its latest complaint with a press release in order to drum up publicity for its filing.  The truth is, any yahoo with a law license can file a “class action” complaint.  But the case doesn’t become a class action until the judge certifies a class, and the mere filing of a lawsuit is a far cry from a determination that the case has any merit.  Some of these complaints may actually become “major” class actions, but the fact that they seem to accompany every filing where the plaintiff seeks to represent a class makes it almost impossible to distinguish the truly meaningful cases from those that you’ll never hear about again.

I’m sure a good plaintiffs’ lawyer could come up with an eloquent explanation for why it is necessary to treat each new case as the story of the century.  It could be driven by a desire for publicity, a belief in the righteousness of the cause, or even a means of defending a firm’s turf against possible rivals.  Whatever the reason, to someone searching for meaningful class action news, having to sift through the countless case announcements can be more than irritating.

Maybe some day the search engines will come up with some kind of filter to separate out the press releases from real news.  Then again, if it was so easy to find class action-related news, would there be any need to visit ClassActionBlawg.com?

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Julie Treadman of the American Lawyer published this intriguing article today summarizing her interview with former Milberg attorney Andrew Morganti, who has been working as a consultant for a plaintiff’s class action firm in Ontario, Canada.  Morganti provides his perspectives on the fast-developing areas of securities and antitrust class action law in Canada, opportunities for U.S. class action lawyers to assist or consult with Canadian firms, and cooperative efforts between plaintiffs’ firms in the U.S. and Canada to pursue parallel litigation in both countries.

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Although not class action-related, I consider it newsworthy that my firm has decided to enter the 21st century by formally sponsoring a blog. See the excerpt and link  below to the firm’s full press release announcing the latest addition to the AmLaw 200 blogosphere.  Welcome to China-U.S. Trade Law!

Baker Hostetler’s International Trade Practice, led by Dr. Elliot J. Feldman has launched the “China-U.S. Trade Law” blog which will feature developments in U.S. international trade law, with a focus on issues of particular concern to Chinese producers, exporters and government officials.


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One more abbreviated post before I return from vacation.  Neil Rose of the British publication the Law Society Gazette reports that the paper has obtained unpublished government research calling for an opt-out collective action procedure for dealing with a backlog of equal pay, discrimination, and other employment claim against government agencies in the UK.  Here’s a link:


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