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The Class Action Playbook

The Class Action Playbook

Andrew Trask, author of the blog Class Action Countermeasures, recently sent me an advance copy of a new book that he co-authored with O’Melveny partner Brian Anderson: The Class Action Playbook (Oxford University Press 2010).  The title is self-explanatory, and the book lives up to its name.  It’s clear after just a few pages that the authors are eloquent writers who know their way around a class action.  The book as a whole provides an anatomy of a class action from pre-filing to discovery, trial or settlement, appeal, and even post-judgment collateral attack.  Each section contains concrete practice tips in addition to a discussion of the applicable legal principles and procedural requirements.  Aside from being an accessible and comprehensive practitioner’s guide to litigating class actions, the book is filled with entertaining quips and illustrations that make the book an enjoyable read from cover to cover.  Here are some examples:

On ascertainability as component of the numerosity requirement (pp. 23-24):

A merits-based (also known as a “fail-safe”) class is like Schrödinger’s cat: until the verdict, there is no way of telling whether the class has 1,000 members or none at all.

On drafting class certification briefs (p. 135):

Indeed, class-action litigation can sometimes seem almost fractal in nature.  From the 30,000-foot view the plaintiff advocates, all issues look common: contracts are uniform, misrepresentations are substantially similar, and reasons for not hiring are all part of a larger pattern or practice.  But from the close-up view the defendant advocates, every class member is unique, and common proof could never resolve everyone’s claims.  One could say that the outcome of the class certification debate turns on whether the court decides that the lawsuit is best viewed through a telescope or a microscope.

On the importance of plain language notice (p. 185):

Most adults who pay with a credit card, use a cell phone, or drive a car have seen at least one class notice in their lives.  Class notices have a reputation for being long and opaque, reading much like the credit cards agreements, cell phone calling plans, or warranties that the plaintiff complained about in the first place.  Some of this complexity is unavoidable: It is extremely difficult to balance accuracy and clarity, and the presence of lawyers likely tips the scale in the wrong direction. . . .

I highly recommend the Class Action Playbook to fellow practitioners and their clients as well as students, judges, and academics alike.  Very well done, gentlemen.

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I must have been living under a rock, but today for the first time I came across The Learned Lawyer, a great Colorado-centric law blog published by the Colorado Bar Association’s nonprofit education affiliate, CLE in Colorado, Inc.

The Learned Lawyer offers a variety of articles of interest to practitioners of all ilks.  Recent entries include an interview with Colorado Supreme Court Justice Gregory Hobbs on water law, advice columns for young lawyers, a video series for solo practitioners, and highlights of upcoming CLE offerings.

For those, like me, who are always on the lookout for good law blogs, The Learned Lawyer also maintains a blogroll of Colorado law blogs.

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Economist David Gulley, Ph.D., of Navigant Consulting, has authored an informative white paper entitled Recent Trends in Rule 23 Class Certification Expert Analysis.  Dr. Gulley’s article explores the expanding role of experts and increased scrutiny over expert opinion testimony in class certification proceedings in light of recent federal appellate decisions placing renewed emphasis on the rigorous analysis standard.  See the Second Circuit’s opinion in In re IPO Securities Litigation and the Third Circuit’s opinion in In re Hydrogen Peroxide Antitrust Litigation.  The paper is a great resource for both class action attorneys and experts who are asked to testify in class certification proceedings.

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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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I finally found a few moments the other day to organize the teetering stack of professional journals, magazines, and flyers that had been piling up in my inbox.  I was pleasantly surprised to find that the most recent issue of the ABA Commercial & Business Litigation section’s Winter newsletter is a collection of articles focusing on class action issues.  The compelling list of titles include “What to Tell a Panicked Client about Class Actions,” “CAFA and its Impact on Class Action Litigation,” “The ‘Holistic’ Approach to Scienter under Tellabs,” “Alternative Privilege Log Techniques in an E-discovery World,” and Recent Rulings Limit Plaintiffs’ Choice of Forum Tactics.”

http://www.abanet.org/litigation/committees/commercial/newsletter.html

Speaking of class-action related materials, here are some good print publications focusing on class actions:

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If my recent post about the upcoming January 20, 2009 Class Action Law Monitor/Strafford Publications CLE on Rule 23(f) appeals didn’t convince you to sign up, perhaps this preview of the speakers and topics will:

I.                   Key features of Rule 23(f) (Barry Sullivan, Partner, Jenner & Block, Chicago)

A.    No automatic right to appeal 

B.     No automatic stay of district court proceedings

C.     Appeal must be filed within 10 days of class certification order

 

II.                Case law addressing Rule 23(f) (Cindy D. Hanson, Partner, Kilpatrick Stockton, Atlanta)

A.    “Death knell” cases and “reverse death knell” cases

B.     Appeal raises fundamental and unsettled legal issue

C.     Clear error in district court ruling

D.    “Sliding scale” standard

 

III.             Strategies for pursuing appellate review of class certification decision (Paul G. Karlsgodt, Partner, Baker Hostetler, Denver).

 

IV.             Strategies for challenging motion for appellate review of class certification (Steve W. Berman, Managing Partner, Hagens Berman Sobol Shapiro, Seattle)

 

My handout materials are available here: rule-23f-presentation-final

For the other speakers’ handouts, see this link (and while you’re at it, why not sign up?)

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Every once in a while I actually open one of those seemingly hundreds of spam emails that I get from legal publishers each week.  Today, I had the even rarer occasion to come across one that was advertising a resource I might actually use. 

The resource in question is a website called The Robing Room, operated by North Law Publishers, Inc.  With the tagline, “where judges are judged,” The Robing Roomis a forum for lawyers, litigants, and members of the public to provide anonymous feedback and commentary on various aspects of a judge’s performance, including the judge’s temperament, competence, intellectual ability, and even-handedness.  Judges are rated on an overall scale from 1 to 10.  Viewers can also see specific comments provided by other users.  Users who comment are identified by whether they are a lawyer, litigant, or other, and if a lawyer, by type of practice.  Ratings are available for many federal district court judges and magistrates, as well as state court judges in selected states.

Of course, like any other online forum, the ratings and comments have to be taken with a huge grain of salt.  The rating methodology is not–as far I can tell–scientific.  The anonymous nature of the site means that any nut job with an axe to grind can give a judge an unfair review.  Conversely, any judge who wants to boost his or her ratings can no doubt find ways to improve them with the help of a few friends.  However, with those caveats, the site could provide helpful information that, used in connection with other resources, can be of some strategic benefit for a lawyer or litigant faced with an unfamiliar judge.

Colorado practitioners will be familiar with the Commissions on Judicial Performance, which also uses feedback from lawyers, litigants, and members of the public to review the performance of judges, for the purpose of recommending whether or not they be retained in retention elections.  The Robing Room appears to have added Colorado state judges only fairly recently, so there isn’t enough data yet to analyze whether its ratings are at all similar with the feedback provided by the Commissions.  Lawyers or parties facing litigation in Colorado would be well-served to consult both sources in researching a judge.

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