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Archive for the ‘Reports and Surveys’ Category

My firm, BakerHostetler, has recently released two excellent resources for those interested in recent trends in the areas of class actions and data privacy (including, of course, recent trends in data privacy class actions!).

The 2016 Class Action Year-End Review summarizes trends in class action procedure generally and recent developments in a variety of different subject matter areas.

The  2017 Data Security Incident Response Report “highlights the critical need for senior executives in all industries to understand and be ready to tackle the legal and business risks associated with cyberthreats and to have enterprisewide tactics in place to address intrusions before they happen.”  See Full Explanatory Article Here.  In addition to other useful content, the report includes statistic on trends in class actions arising out of large data breach incidents.

Be sure to check both of them out.

 

 

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Last week, the Rule 23 Subcommittee to the Advisory Committee on Rules of Civil Procedure issued its latest report outlining potential revisions to Rule 23, Federal Rules of Civil Procedure.  Click the following link to view the Rule 23 Subcommittee Report.  Generally, the topics addressed in the Subcommittee’s Report are as follows:

  1. Settlement Approval Criteria
  2. Settlement Class Certification
  3. Cy Pres Treatment
  4. Dealing with Objectors
  5. Rule 68 Offers and Mootness
  6. Issue Classes
  7. Notice

If you’d like an opportunity to give feedback to Subommittee in person, make sure to sign up for the upcoming Second Annual Western Regional CLE Program on Class Actions and Mass Torts, scheduled for June 19 in San Francisco, where several Subcommittee members will be on hand to discuss the report and receive comments in a town hall-style discussion.

Also, I will be among several contributors to an upcoming commentary on the report to be published by the ABA’s CADS Committee.  My submission will address the Subcommittee’s suggestions on Issue Classes.   Stay tuned for more information about that publication.

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Cornerstone Research has published a new study on trends in securities class action settlements concluding that the total number of securities class action settlements, the total amount of settlement dollars, and the average settlement value, fell to their lowest levels in 10 years in 2011.  Michael J. de la Merced of the New York Times authored this article summarizing the study’s key findings and analyzing the potential causes of the decrease.

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Kevin LaCroix, whose blog The D&O Diary is a premier source for the latest trends in securities-related class action litigation, has an excellent post out today discussing two key developments in an area that is very close to my heart, international class action litigation.  The first part of LaCroix’s post discusses a recent publication from Asia-based International law firm King & Wood Mallesons discussing class action filings in Australia.  According to the report, there are currently only about 14 class action filings filed on average in the Australian federal court, a number that represents less than 1% of all federal filings in that country (this figure does not include filings in the courts of individual states; both Victoria and New South Wales also have civil procedure rules similar to the federal rules).

The second part of the post addresses the potential implications of the recent enactment of a class action law in Mexico.  LaCroix summarizes a recent Jones Day publication on the subject, then adds his own commentary.  In particular, he makes an observation similar to one that international plaintiffs’ class action lawyers Michael Hausfeld and Brian Ratner make in the forthcoming book World Class Actions: that one of the potential implications of the US Supreme Court’s 2010 decision in Morrison v. National Australia Bank, which limited f-cubed securities class actions in the United States, may be an increase in litigation in foreign jurisdictions that allow for securities class actions or some other form of collective redress.

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Yesterday, Cornerstone Research published its annual report titled Securities Class Action Settlements–2010 Review and Analysis.  Among the findings in this year’s report:

  • The number of approved securities class action settlements was at a 10-year low
  • The total dollar value of settlements decreased 17% from 2009 to 2010,
  • The median settlement amount was up 40%, but the average settlement was down slightly, reportedly a result of a decline in “very large” settlements.
  • The percentage of settled cases with a related SEC settlement was up to 30% in 2010 as compared to 20% in 2009.
  • The participation of institutional investors in class actions continued to increase, continuing a trend since the passage of the Private Securities Litigation Reform Act in 1995.
  • Settlements of cases involving alleged violations of generally accepted accounting principles were up over 2009.

The report on settlements follows a similar report on securities class action filings, published in January.  Both reports are worth a close read.

The links above are to the Cornerstone summaries of the reports.  The reports themselves are available for download here.

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Class action notice expert and occasional CAB guest blogger, Dr. Shannon Wheatman, has a must-read article coming out on trends in class action notices.   The article, co-authored with plain language expert, Dr. Terri R. LeClercq, is being published in the University of Texas law journal The Review of Litigation and will be titled Majority of Class Action Publication Notices Fail to Satisfy Rule 23 Requirements.  As the title suggests, Wheatman and LeClercq have found that a majority of class action notices are still not meeting the plain language notice guidelines established by the Federal Judicial Center.  What’s more, their study suggests that many class action notices do not even meet the basic requirements set forth expressly in FRCP 23(c)(2)(B).

The article summarizes historical developments and best practices dealing with plain language notices in class actions, and sets forth the results of an empirical study of class action notices given between 2004 and 2009.  The study included publication notices given in both state and federal courts and in the settlement context as well as the contested certification context.   The notices had been used in cases involving a wide variety of subject matter areas, including “antitrust, banking and finance, consumer, employment, environmental, humanrights, insurance, pharmaceutical, privacy, securities, and telecommunications.”  The key findings included:

  • Over 90% of securities notices used an uninformative case caption in the header of the notice.
  • Most notices did not include a noticeable and informative headline to capture the attention of potential class members.
  • Over 60% of notices were written in less than an 8-point font.
  • The majority of notices failed to clearly inform class members of the binding effect of the settlement.
  • Over two-thirds of the notices with an opt-out right did not inform the class member that they could opt out of the litigation or settlement.
  • Over 75% of the notices did not tell class members they had the right to appear through an attorney.
  • Over two-thirds of the notices failed to satisfy the concise, plain language requirement of Rule 23.

Shannon R. Wheatman and Terri R. LeClercq, Majority of Class Action Publication Notices Fail to Satisfy Rule 23 Requirements, 30 Rev. Litig. 53, 58 (2011). 

For anyone who has flipped through People Magazine or Sports Illustrated recently, it is probably not a revelation to hear that class action notices are not meeting the requirement that they “concisely and clearly state in plain, easily understood language” certain basic information to class members.  For those of us responsible for carrying out class action notice plans that comply with the rules of civil procedure, however, this article is a reminder that we need to do better. 

Unfortunately, the article is not available online, but for more information on the print version, see the UT Law Publications website, or email Shannon Wheatman at swheatman@kinsellamedia.com.

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I’m late for my Inns of Court dinner, so time does not permit me to elaborate in detail, but I wanted to point out two recent class action-related reports of note.  Be sure to check them out.

1) Seyfarth Shaw’s Seventh Annual Workplace Class Action Litigation Report.

2) Cornerstone Research, Securities Class Action Filings, 2010 Year in Review.

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