From time to time we will troll the class action blogosphere for news and information about our favorite class action topics. Here are just a few of the recent headlines from around the web.
Complex litigation as a commodity investment?
Hedge funds have traditionally been willing to explore new territory in the non-traditional investment sphere. At least some appear to be finding potentially attractive opportunities in so-called Litigation Funding Companies. LFC’s are often run by former lawyers–some with an investment or hedge fund background. They identify potentially profitable lawsuits and agree to fund the litigation (to a point) in exchange for a percentage of the settlement. Three Geeks and a Law Blog has an interesting multi-part series on this new trend. Read it here.
10 ways to defend class actions using Walmart v. Dukes
Andrew Trask, class action attorney at McGuire Woods and co-author of the Class Action Playbook recently put together a list of takeaways explaining how class action defense attorneys can use Wal-mart v. Dukes. His post links to a power point presentation he recently gave at DePaul University. It’s a quick read and worth checking out.
The BP litigation in the Deepwater Horizon Oil Spill off the Gulf Coast has settled for all claimants except the federal government. The Mass Tort Litigation Blog has been providing regular updates including this post discussing what’s known about the settlement. It appears the settlement will consist of two separate agreements. One will resolve economic claims while the other will resolve medical claims. The Blog cites news reports explaining that “either the settlement will be paid by the $20 billion fund BP created to compensate victims or the fund will close and be replaced by a court overseen claims facility.”
Irregular transaction was not enough to show a Bank had actual knowledge of an alleged Ponzi scheme.
Race to the Bottom contributor Susan Beblavi unpacks the Eleventh Circuit’s semi-recent opinion in Lawrence v. Bank of America, D.C. Docket No. 8:09-cv-02162-VMC-TGW, 2012 LEXIS 777 (11th Cir. Jan. 11, 2012). In that case, putative class action plaintiffs alleged the Bank of America substantially assisted in a Ponzi scheme operated by one of its account holders. The Eleventh Circuit upheld the District court’s dismissal of the case reasoning that even though BOA authorized numerous large transactions by the account holder, the bank wasn’t required to investigate them under Florida law. Moreover, the court found the purported red flags were too weak to infer that it was plausible that the bank had actual knowledge of the alleged scheme. Read more at the link below.
Parens Patriae actions, class actions?
The 9th Circuit holds that parens patriae actions under Nevada law are not class actions removable to federal court under CAFA, adding to a circuit split on the issue. For a succinct explanation, see Katherine Heckert’s post at the Carlton Fields Class Action Blog:
Walmart v. Dukes reasoning reverses class certification again
Skaddon’s Russell Jackson posts that the Louisiana Supreme Court has again reversed class certification due to problems of commonality and causation. Previously, the Louisiana high court adopted the U.S. Supreme Court’s common question analysis in Walmart v. Dukes to reverse class certification in Price v. Martin. In a recent per curiam opinion in Alexander v. Norfolk So. Corp., No. 11-C-2793, Slip op. (La. Mar. 9, 2012), the Louisiana Supreme Court cited Price for the proposition that class certification requires a rigorous analysis and significant proof of a common question. The case involved a chemical spill involving train cars. Hundreds complained of a bad smell and irritation to their eyes, throat and nose. This led to a class action that was certified by the trial court and affirmed by an appellate court. It turned out, each putative class member would need individual toxicology testing to determine whether they are among the minority of people who are susceptible to very low levels of the released chemical. The Louisiana Supreme Court ultimately reversed class certification based on the lack of predominance of common issues, and the need for individualized trials. Read more here.
The Perils of Electronically Stored Information
Todd Dawson’s post on Baker Hostetler’s Employment Class Action Blog illustrates just how badly things can go when a key “smoking Howitzer” document slips through defense counsel’s ESI review and ends up in the plaintiffs’ hands. In an FLSA Collective Action, the employer produced two million documents. Prior to the production, the employer’s attorneys used various search terms to identify privileged documents. Inevitably, one got through – a bad one. Even worse, the court concluded that the employer had waived privilege. Thus, not only did the plaintiffs’ counsel get to see the document, they got to use it as well. To see how this disaster could have been avoided, read more here.