Archive for April, 2010

If you’re in the need for CLE credits, or simply just want to keep up on some of the hottest topics in class action litigation, here’s an upcoming program that you should consider.  Although the program ostensibly covers antitrust class actions, many of the concepts will be applicable to consumer and securities class actions as well.  Thanks to Elizabeth Roche of the Analysis Group for sending me a tip about this intriguing upcoming program:

Proving Common Impact in Antitrust Class Actions: Current Legal and Economic Thinking
May 12, 2010
8:00 AM – 9:30 AM (CST)
Gleacher Center, 450 North Cityfront Plaza Drive, Chicago, Illinois

 With issues raised by the Hydrogen Peroxide Litigation far from settled and the recent affirmation of class in Wal-Mart en banc, economic guidance in addressing proof of common impact is essential. Our panelists will review the legal landscape defined by these landmark cases and offer a systematic way of approaching common methods of proof, including:

  • The legal challenges of class certification in light of the recent affirmation of class in Dukes v.Wal-Mart and In re Hydrogen Peroxide Antitrust Litigation, with an update on the 9th and 3rd circuits
  • Assessment of merits and whether economic damages can be assessed at the class level
  • A systematic approach to testing whether regression analysis offers a common method of proof to assist the courts in assessing class certification

Edward A. Snyder, Ph.D., Dean and George Shultz Professor of Economics, University of Chicago Booth School of Business
John W. Treece
, Esq., Partner, Sidley Austin LLP
Pierre Y. Cremieux, Ph.D., Managing Principal, Analysis Group
Andrew Wong, Ph.D., Managing Principal, Analysis Group (moderator)

REGISTER: http://www.analysisgroup.com/common_impact_seminar.aspx

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The 200th episode of “South Park” features a class action lawsuit by 200 celebrities led by Tom Cruise against the small fictitious Colorado town.  As a Colorado resident and class action lawyer, I’m dismayed at the lack of attention to detail by the South Park writers when it comes to Colorado class action law.  (Ok, I haven’t actually seen the episode, but I have read a variety of reviews from seemingly reputable entertainment media sources like this one).  Just to set the record straight, in Colorado, as in other U.S. states, class actions are representative in nature.  Although perhaps it makes for better drama, a real class action wouldn’t involve a mob of 200 celebrities storming the courthouse to air their grievances.  Instead, Mr. Cruise would have to show that his claims for being “ripped on” were typical of the claims of other celebrities.  Meanwhile, other victims like Bono, Oprah and the leather clad, leashed Harrison Ford could sit in their cartoon mansions and wait for their court-approved notices, blissfully ignorant that there was any lawsuit going on at all.  Another problem is that some of the putative class members aren’t even real celebrities.  The facts relating to alleged injuries of a cartoon mouse like Mickey obviously do not share commonality with the alleged injuries of a farcical caricature of a real person, such as a giant, mechanical Barbara Streisand.  To be clear, I’m only taking issue with the characterization of class actions in the episode.  I’m sure in all other respects, the depictions of people, places, and events are completely accurate and true to life.

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Shannon P. Duffy of the Legal Intelligencer reports that oral argument questions by a panel of the United States Court of Appeals for the Third Circuit suggests a possible reversal of a lower court’s dismissal of a class action based on the New England Patriots’ 2007 Tapegate scandal.   A New York Jets season ticket holder claims that the Patriots’ alleged act of secretly taping Jets’ defensive signals amounted to a fraud that deprived him of his expectation of seeing games decided by fair play.   According to Duffy:

In an oral argument that lasted more than an hour on Wednesday, all three judges expressed some skepticism of the plaintiffs’ claims during the first half. One judge wondered if the court would be encouraging fans to file lawsuits every time they disagreed with a referee’s decision.

But the judges were much more aggressive when questioning the lawyers for the NFL and the Patriots.

Cowen especially seemed swayed by the plaintiffs’ arguments, telling the defense lawyers that he considered the games to be rigged when the Patriots “knew every signal and [were] able to foretell every play that was going to be called.”

But Goldfein insisted that, unlike an illegally fixed game, the outcomes of the Patriots’ games were not certain, and that fans “got what they paid for.”

Sour grapes, I know, but if the Third Circuit reverses this case, I’ll be first in line to serve as class representative for a class of Seattle Seahawks season ticket holders who feel that they were cheated out of the 2005-06 season due to one-sided officiating in Super Bowl XL.

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I’m embarrassingly late in posting a link to the Supreme Court’s recent decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., No. 08-1008, slip op. (S. Ct., March 31, 2010) in which the Court held that a New York state rule prohibiting class actions to recover statutory penalties did not apply in a case filed in federal court exercising diversity jurisdiction under the Class Action Fairness Act (CAFA). 

Anyone who thinks that class action jurisprudence can be predicted based on perceived political leanings of  the Justices should take a look at the composition of the various factions of the Court that agreed to different parts of the plurality opinion:

SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II–A, in which ROB-ERTS, C. J., and STEVENS, THOMAS, and SOTOMAYOR, JJ., joined, an opin-ion with respect to Parts II–B and II–D, in which ROBERTS, C. J., and THOMAS, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part II–C, in which ROBERTS, C. J., and, THOMAS, J., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment. GINSBURG, J., filed a dissenting opinion, in which KENNEDY, BREYER, and ALITO, JJ., joined.

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Supreme Court blog www.scotusnewz.com reports that the Court has approved Rule 23.4.1, Federal Rules of Civil Procedure, which will require all attorneys wishing to represent clients in class actions in federal courts to be specially licensed as “Class Action Counsel.”  Licensing requirements are to include

  • successful completion of a 3-hour Class Action Bar examination,
  • an affidavit of good standing acknowledged by an Article III judge or existing member of the Class Action Bar,
  • a completed background check, to be administered by the Federal Bureau of Investigation,
  • 100 hours of continuing legal education (CLE) annually,
  • 100 hours of pro bono legal service for indigent plaintiffs and defendants in class actions.

Attorneys wishing to be considered for licensing must apply with the Federal Circuit Court of Appeals on or before April 1, 2011.  The new licensing rules become effective on April 1, 2012.

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