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Archive for the ‘Class Action Humor’ Category

What started off as an almost tongue-in-cheek line of questioning from Justice Antonin Scalia to attorney Joseph M. Sellers in Tuesday’s Wal-Mart v. Dukes oral argument has become the foundation for a watershed decision on gender equality:

JUSTICE SCALIA:  [what] your answer assumes is if there is a disparity between the advancement of women and the advancement of men, it can only be attributed to sex discrimination?
MR. SELLERS: No.
JUSTICE SCALIA: Well, otherwise, how could you say that all — all of the companies are –are are presumptively engaging in sex discrimination?
MR. SELLERS: Well, Justice Scalia, I –I — I want to deal with the — in this instance, we have — it’s not just any old analysis that we’re -that we’re using. We have statistical regression analysis that isolates and takes into account the factors such as performance and — and seniority.
JUSTICE SCALIA: See, I wasn’t talking about this case. I was talking about your answer to Justice Alito
MR. SELLERS: I’m sorry.
JUSTICE SCALIA: — which said that, you know, it may well be that every industry in the United States is guilty of sex discrimination
MR. SELLERS: Well, I
JUSTICE SCALIA: — unless there — you know, there — there’s equality of promotion for men and women.

In an opinion issued today, citing this very exchange, Justice Scalia himself has penned a unanimous decision that is already being called the most important employment rights decision in American jurisprudence.  The substance of the opinion, titled General Order Number 412011, is as short in length as it is long in its impact:

During oral argument, I mocked what I believed was an extreme position being taken by respondent’s counsel to make a point.  However, upon serious reflection, I have come to agree with the other members of the Court that the evidence is compelling.  It appears very likely that all companies, businesses, and institutions in this nation are in patent and ongoing violation of Title VII.  We hold today that any disparity in the advancement of men and women in the workplace is prima facie evidence of discrimination.  We realize that our ruling will have drastic and far-reaching implications for American businesses and other institutions, but we conclude that the text of Title VII requires it.  Any relief from the effects of Title VII should come from the legislative branch.

Accordingly, it is hereby ORDERED that all employers who are subject to the jurisdiction of this Court must, within 10 days from the date of this opinion, ensure that each level of the business or organization is staffed with an equal number of men and women, who are to receive identical pay for substantially similar job functions.  Any employer that cannot comply with this order must show cause within 10 days why it cannot comply.  Until an employer can prove compliance or its compliance obligations are relieved through clear and convincing evidence of impossibility, the employer shall have no power to conduct any business or official act.

Slip op. at 1.

The North American Chamber of Commerce immediately blasted the decision, calling it the “most blatant example of judicial activism in the history of the United States Supreme Court.”  “We’re simply speechless,” added spokesman William Baggins.  “Without immediate Congressional intervention, this decision will bring the U.S. economic sector to a complete standstill.  The compliance costs alone will cripple the economy.”

Sidney Sauron, president of the pro-plaintiff organization, the American Association of Class Action Advocates (AACAA), had mixed feelings about the ruling.  “Of course, we agree with the ruling.  However, it does raise some practical issues for our member firms.  We are not aware of any firm that is currently in compliance with the injunction’s requirements.”

Efforts for Congressional reform have hit a roadblock.  It is unlikely as a practical matter that Congress can draft and enact appropriate legislation amending Title VII, and the ruling appears to apply to governmental institutions as well as private businesses.  As a result, once the injunction takes effect, neither house of Congress will be in compliance, and Congress may be powerless to act.

Opponents have one last-ditch strategy for avoiding the ruling’s effect, says Purdue University Law School professor and constitutional scholar Robert Gandalf.  “Because the Court itself lacks the gender equality that would make it compliant with the injunction, the decision to enter the injunction may be an ultra vires act under Article III of the United States Constitution.  As I see it, an emergency motion attacking the Court’s jurisdiction is the only way to avoid a constitutional crisis.”

Stay tuned to ClassActionBlawg for further updates…

Editor’s Note – Comments to this article are welcome, but PLEASE see consider the DATE of the posting before you do.  Happy April Fools Day.

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If you’re a Canadian class action lawyer looking for next big thing in class actions, moose collision litigation was looking pretty promising.  As mentioned in this October 19 CAB entry, a class action was filed against the Province of Newfoundland and Labrador  for alleged negligence in introducing moose into the area early last century, causing an excessive number of collisions with vehicles today.

But according to an article today by Gavin Day, posted on the website of Dawson Creek, B.C. radio station 890CJDC, the trend isn’t likely to catch on in British Columbia.   The article points out that unlike in Eastern Canada, Moose are indigenous to B.C.  And don’t think changing the theory from negligent introduction to negligent population control of the moose already present is likely to work.  Day’s article quotes Gayle Hesse of the B.C. Wildlife Collision Prevention Program as saying “I think there are legal precedents already set for that [referring to prohibiting litigation against the government for failing to control moose population] in our province.”  Apparently B.C. courts have already considered the cutting-edge question of moose collision litigation and said, no thank you.

Presumably, there’s still hope in Manitoba, home of moose so vicious that they have become the mascot of a rough and tumble minor hockey league club:

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According to this article from The Canadian Press and this one from the Ottawa Citizen, a lawyer in St. Johns, Newfoundland is considering suing the Province of Newfoundland and Labrador on behalf of a would-be class of people injured in collisions with moose.  The theory would apparently be that the government was negligent in introducing moose into the nearly area a century ago, and that it was foreseeable that the introduction of the animals would lead to collisions with Hummers and Silverados.  The human-to-moose ratio in the province is just over 4 to 1.

Not being an expert on the finer points of Newfoundlandian (Newfoundlandish?) law, I cannot comment on the strengths or weaknesses of this case if it does go forward.  However, if the obvious defense strategies, like sovereign immunity, lack of proximate cause, or “come on Judge, you’ve got to be kidding me” don’t work, here’s a more radical possible defense: blame the moose.  After all, if they would just stop procreating, stick to the marshes, or use the crosswalks, then none of this would be happening.

For a more serious comparative discussion of the differences between Canadian and U.S. law regarding governmental liability for tort claims, see this CAB entry dated October 6, 2008.

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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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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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Are you a company faced with the prospect of having to defend a class action lawsuit that you believe is frivolous?  You have many options, but unfortunately, none of them are all that palatable.  You can settle for big bucks right away, you start paying some superstar class action defense lawyer hundreds of dollars an hour to fight the case for a decade before you settle for big bucks later, you can fight the case to the death in court, you can file for bankruptcy protection, or you can pursue any number of other, more desperate, options (what these might be are best left for another discussion).  But one company is trying a different approach altogether.  According to its blog, Chicago-based Internet company Groupon has responded to a class action lawsuit by “organizing” a class action against itself.  Here is an excerpt from a posting on the company’s blog, Groublogpon, Groupon Corporate Overlord,” entitled Groupon Organizes Class Action Against Itself:

Dear Groupon Customers,

You may or may not have heard that a lawyer named Jay Edelson from a law firm called Edelson McGuire is attempting to organize a class action lawsuit against Groupon, claiming that our deals’ prominently displayed expiration dates somehow “systematically deceive our customers.” As a company with one of the most irrationally liberal customer satisfaction policies on the planet, the idea that we’re systematically deceiving anyone is news to us – hopefully it’s news to you as well.

We can think of two possible explanations for this lawsuit:

  1. The law firm sees an opportunity to exploit our success and make a bunch of money.
  2. We are indeed systematically deceiving our customers, but instead of taking advantage of our 100% open refund policy or telling us about their problems or sharing them in a public forum, our customers are secretly gossiping about them to each other and Edelson McGuire, kind of like Emily Johnson did against me in 9th grade (Emily if you are reading this I want my cabbage patch doll back).

* * *

Here’s the only thing that I think matters about this to you, our customers: We are so not the type of company that needs to be sued to bend over backwards for our customers. . . . So while we obviously think this lawsuit is ridiculous, it’s an opportunity for us to reinforce the fact that there is nothing more important to us than making sure you guys love us.

Thanks for reading,

Andrew Mason, Groupon Corporate Overlord

Whether the company’s public response turns out to be pure PR genius or ends up simply being Exhibit A at trial remains to be seen, but it looks like there will be no shortage of entertainment value along the way.  Corporate counsel and public relations representatives of other companies who face consumer class actions might want to keep an eye on how things play out in this one.

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A Los Angeles County Superior Court judge’s attempt to exact poetic justice out of a proposed gift card settlement has resulted in a censure by the California Commission on Judicial Performance, according to this article from the legal humor blog, Lowering the Bar.  The censure stems from a ruling on a motion for final approval of a settlement that reportedly called for a $125,000 fee for the plaintiffs’ lawyer and $10 gift card for settlement class members.  Judge Brett Klein, filling in for an ill colleague in presiding over the final fairness hearing, had initially approved the settlement only on the condition that the fee also be paid in gift cards (although he apparently later granted reconsideration of that order and the settlement was ultimately approved as originally proposed). 

It sounds like the cult hero status that Judge Klein will have attained among some factions of society as a result of the ruling may have more than compensated for the shame of the public censure, especially since he has since retired from the bench.  But whether or not you think the lawyer got what he deserved, other aspects of the conduct that reportedly led to the censure have to be troubling, such as sarcastic comments to the attorneys during the fairness hearing and “grandstanding” to the press about the order.  It is one thing to believe that “coupon” settlements are unfair and should not be allowed, it is quite another for a judge to publicly mock lawyers and litigants for seeking relief that is within his power to simply deny with dignity and decorum.

Postscript: 2/8/10 – Following my posting of the original article above, a reader sent me the following, which may be of interest to others as well:

If you’re curious what sarcastic remarks the Court made, you can read
the ten examples quoted on pages 3-4 of the official censure order:

One would need to look at the entire 32-page reporter’s transcript to find out
what the attorneys told the Court about the details of the settlement.

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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 the entertaining Free Refills and Why I Love America, Ann Arbor, Michigan blogger Wally has listed class actions as the number #11 best thing about living in the U.S., just behind the Super Big Gulp. Class action-philes might feel a bit slighted about not making the top 10, but at least we got a mention!  Wally’s colorful description of class actions as the perfect embodiment of all that is good about American litigiousness, laziness, and greed is definitely worth a few moments of your day.

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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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