Posts Tagged ‘adequacy of representation’

Two of my greatest passions are class action law and NFL football, although not necessarily in that order.  So, my interest is always piqued when the two are combined.  Much to my delight, I came across this article from Rebecca Mowbray of The Times-Picayune that Saints Coach Sean Payton is the lead plaintiff in a putative class action filed in federal district court in New Orleans against a Chinese drywall manufacturer.  Let’s hope class certification comes after February 7, because it looks like Coach Payton may be too busy with other obligations to focus on his obligations as class representative until then and could run into trouble meeting the adequacy of representation standard under Rule 23(a)(4).

Curiously, in another would-be class action involving the NFL, Parrish v. NFL Players Association, class certification was denied in part because the named plaintiff was found to be an inadequate representative.   However, the would-be representative in that case was rejected for reasons much more serious than simply being busy.  The court found that he was inadequate because his “vindictive remarks aimed at defendants, the racial slurs in several of his statements, his stated unwillingness to ever settle this case, and his blemished track record of representing retired NFL players — all demonstrate that he cannot be trusted to fulfill his fiduciary duty to the proposed class.”

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The Indianapolis Star reported yesterday on a class certified in a case filed in Marion County, Indiana against the Hoosier Lottery alleging that the lottery defrauded purchasers of its Cash Blast scratch game tickets by misrepresenting the odds of winning the top prizes after most of those prizes had already been awarded.

I haven’t been able to hunt down a copy of Judge Gerald Zore’s opinion, but based on the descriptions of the order in the Star article, there are a couple of potentially troubling aspects to the case.  First, the court reportedly based the certification decision in part on 49 affidavits from people saying that they bought tickets “because they thought there were more prizes than existed.”  Based on the Star’s description of the allegations in the case, the argument is that tickets continued to be sold with no change in the description of the odds even after most of the larger money prizes had already been claimed.  However, it does not appear that this left purchasers without the opportunity to win any prize at all.  Consequently, this does not appear to be the type of fraud case where the plaintiffs will be able to prove that no reasonable person would ever have bought a lottery ticket if the true odds had been made known.  Common sense and experience suggests that there were probably thousands of people who bought tickets without a thought for the odds.  If so, it is curious that the court would find relevant the fact that 49 affiants said that they did rely on the advertised odds in deciding to buy a ticket.  Certainly, there would be some purchasers who relied on the published odds, and others who did not.  Individualized reliance and causation issues would seem to come in to play in this case just as in most other consumer fraud class actions.

Second, one of the named plaintiffs, Jeff Frazer, reportedly paid $40,000 for 4,000 $10 tickets and considered his purchases an “investment” based on the advertised odds.  His co-plaintiff, Jeff Koehlinger, paid another $2,470 for tickets.  It’s hard to imagine how the court was able to get around the significant typicality and adequacy problems seemingly inherent in these individuals trying to represent a class of lottery scratch game buyers.

See this MSNBC link for more on Mr. Frazer’s story.  The blog WalletPop has a commentary on broader societal implications that this case brings to light about the human cost of state-sponsored gambling.

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