Posts Tagged ‘class action commentary’

Here are some blog entries from the week that was that might be of interest to class action practitioners:

Class Action Decisions

The Complex Litigator and The UCL Practitioner offer analysis of a recent California class certification decision addressing a variety of issues, including ascertainability of the class, evaluation of the merits in ruling on class certification, commonality and predominance:



Class Action Defense Blog provides a synopsis of a Second Circuit Court of Appeals decision upholding the district court’s order reducing a negotiated fee award from 8.5% to 3% in a securities class action settlement:


CAFA Law Blog summarizes a Massachusetts state court decision that looked to provisions of the federal Class Action Fairness Act (CAFA) in rejecting a coupon settlement, recognizing that while CAFA did not apply expressly in the state court proceeding, its provisions reflected “mainstream” concerns with coupon settlements:


Mass Tort Defense reviews a recent decision by the United States District Court for the Eastern District of Missouri denying certification of a class of rice farmers claiming damages resulting from genetically modified rice contamination (synopsis also provided by Class Action Defense Blog, cited in last week’s CABWR):


Consumer Advertising Law Blog discusses a Fifth Circuit decision reversing class certification in a case involving allegations of unsolicited faxes in violation of the Telephone Consumer Protection Act (TCPA):


Florida Appellate Blog discusses a recent Florida state court decision addressing the practice of “picking off” a class representative by offering to settle for the full amount of his or her claim in an effort to moot the class action:


Dispatch Monthly Magazine reports on a federal court’s decision to grant class certification to a class of police dispatchers in a case challenging department regulations for returning to work after sick or injury leave:


HousingBath.com discusses the denial of class certification in a lawsuit filed against a condominium developer by purchasers seeking to void their contracts due to alleged defects in the building:


TortsProf Blog comments on an article from the Legal Intelligencer (reprinted at www.Law.com) discussing a ruling by the Third Circuit Court of Appeals reversing the dismissal, on preemption grounds, of a consumer class action against a manufacturer for alleged failure to warn about the dangers of mercury in tuna:


Class Action News

More from American Thinker, Death by 1000 Paper Cuts, National Review Online’s The Corner, Libertyville, Under the Dome, Spencer Blog, and LukeFord.net on Warren Buffett’s recent suggestion that contributors file a class action against John Edwards for concealing his extramarital affair (See ClassActionBlawg.com entry here)…








… with follow up from NewsBusters.org and Perfunction regarding efforts by Edwards to refund contributions to just one of his “Two Americas” (Spoiler: it’s the one with the class action lawyers in it, not the one with Buffett’s proposed class action plaintiffs):



Class Action Commentary

Legal Theory Blog summarizes an article by Vanderbilt Law Professor Richard A. Nagareda with the fairly self-explanatory title, “Class Certification in the Age of Aggregate Proof”:


Mass Tort Litigation Blog provides an abstract and link to an article by Michigan law student Patrick Luff criticizing the weighing of the costs and benefits that could result from certifying a class in making a class certification decision:


Overlawyered comments on a curious case of forum shopping where plaintiffs’ counsel was successful in pursuing a nationwide class action filed in Oklahoma seeking to apply Texas law after a Texas court had previously rejected the same claims, holding that Texas law did not permit the type of nationwide class that the plaintiffs sought to pursue:


Nonlawyer Commentary

See this www.eHow.com article for a non-lawyer’s perspective on the practical aspects of starting a personal injury class action lawsuit:


And if you are looking for one consumer’s viewpoints on participating in a class action settlement, see this entry from Queercents:


Legal Ethics

Wage Law has posted a request from the California State Bar for public comment on a proposed ethics rule regarding “Offers of Settlement Conditioned on Client’s Waiver of Statutory Right to Seek Attorney’s Fees”:


Class Action Trends

Apparently www.SueEasy.com is still alive and going strong, according to these entries from WebWare and MakeUseOf.com:



Class Action News

Sagwatch Blog reports on the setting of a trial date in a class action filed by former NFL players against the NFL Players Association seeking payments under a group licensing agreement:


International Class Action Law

Point of Law comments on a unique feature of British law that allows investors to purchase an ownership interest in litigation and examines the challenges of allowing a similar mechanism in the United States:


The D&O Diary comments on what NERA has called “the largest settlement in a class action securities case in Canadian history,” the relationship between the Canadian case and the U.S. subprime crisis, and its potential impact on trends in subprime litigation in the U.S.:


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A few sources, including Slate and American Thinker, have reported on a CNBC interview of bajillionaire Warren Buffet yesterday in which he suggested that donors to John Edwards’ presidential campaign file a class action against him for solicing contributions, knowing that reports of his extramarital affair with videographer Rielle Hunter would eventually come to light:

it might be kind of interesting if somebody, some contributor, would bring a class-action suit on behalf of all these people who essentially were led to send money to a man under totally false circumstances, false pretenses, and where he knew it and didn’t tell them the truth.

The expression on Buffett’s face suggests the proposal was at best half serious, and his comments appear to have been motivated mostly by a desire to illustrate the irony in a successful trial attorney doing something that could open himself up to a class action lawsuit.  (See interview transcript: “QUICK: Hm, that’d be ironic for a trial lawyer…  BUFFETT: Yeah.  QUICK: …to have a class-action lawsuit brought against him.”).  But even a comment made in jest from a man who could sink a Fortune 500 company with his words may be enough to make Edwards nervous.  Buffett himself won’t be serving as a class representative, though.  He threw his weight behind Barack Obama early on in the campaign.

Buffett may be the best investor of our time, but a class action expert he is not.  Even with his endorsement, a class action against Edwards by those who donated to his Presidential campaign would be an uphill battle.  Fraud cases are fraught with the potential for the kinds of individualized fact questions that make a case unsuitable for class treatment.  Usually, at least one of the elements necessary to prove liability for fraud is inherently individualized.  In Edwards’ case, donors likely made contributions for all sorts of reasons, and many no doubt would have donated despite earlier revelations of his infidelity, making it unlikely that common elements of fraud, like the materiality of the nondisclosure, reliance on the nondisclosure, or the causaton of injury, could be proven by common, classwide evidence.  Even setting aside the procedural hurdles, perhaps an even bigger challenge is a practical one.  How many members of the trial lawyer’s bar would be willing to pursue a class action against one of its most respected and high profile members?

Buffett’s statements reflect a common misconception about what makes a good class action lawsuit.  Many nonlawyers, even very sophisticated ones, tend to assume that any case where a misrepresentation or omission of fact has occurred that has the potential of harming a large group of people makes a strong candidate for a class action.  Of course, the same misconception often holds true with lawyers and judges who are not familiar with Rule 23.  So, it may not make any difference whether Buffett’s proposed class action could ever technically satisfy all of the requirements for certifying a class action.  As he observed during the interview, “I’ve seen a lot of class-action suits with less to it than this particular case.”

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Here are some blog entries from the week that was that might be of interest to class action practitioners:


Class Action Decisions


The Complex Litigator has breaking news on a significant decision issued today by the California Court of Appeal reversing, on predominance grounds, a class certification order in a wage and hour class action involving claims for unpaid wages for hours worked during meal breaks.




CAFA Law Blog finds comparisons to Jeff Spicoli and Mr. Hand from Fast Times at Ridgemont High in a California federal court decision allowing discovery prior to a ruling on a motion to remand a class action removed under CAFA.




For a review of several recent federal decisions addressing CAFA issues, see this entry from The UCL Practitioner:




Class Action Defense Blog provides a thorough review of a recent Fifth Circuit Court of Appeals Decision discussing the applicability of the excusable neglect standard in assessing a class member’s request to opt out of a class action settlement after the opt-out deadline.




North Carolina Appellate Blog reviews a recent North Carolina Court of Appeals decision addressing the full faith and credit to be given the class certification decision of another state’s court (See last week’s CABWR for more on this decision from North Carolina Business Litigation Report).




Mass Tort Litigation Blog discusses Pennsylvania Supreme Court’s decision to grant review of class certification issues and due process issues relating to class certification of a breach of express warranty claim in a case filed against an automobile manufacturer for allegedly defective brakes…




…and more on the same decision from Point of Law




Overlawyered summarizes an opinion highlighted in a New York Law Journal article published last week in which United States District Judge Jed Rakoff refused to appoint one of two named plaintiffs as a class representative on inadequacy grounds, stating that the would-be representative was merely a “pawn of counsel” and that he would “not be party to a sham.”  (But note that Judge Rakoff did grant certification as to the other class representative).





Class Action Trends


D&O Diary discusses the impact of the economic downturn as a cause of increased securities class action filings…




… and recent developments in issues relating to federal jurisdiction, removal, and remand of certain securities class actions.




IP Finance comments on a recent Law.com article discussing potential trends in shareholder class actions spawned by patent disputes (see my commentary on this case here).






Class Reactions comments on a New York Times article discussing a class action filed on behalf of cruise ship passengers who purchased art at onboard auctions:




Wage Law offers commentary on another New York Times article about reports from the Government Accountability Office critical of the Department of Labor’s Wage and Hour Division’s performance and suggests that this poor performance in ensuring compliance has led workers to look to private attorneys for redress for wage and hour violations.




Central La. Politics responds to criticisms from a local radio personality on class actions against drug manufacturers:




Class Action Scandals


Point of Law provides an update on continuing fallout from the Dickie Scruggs bribery scandal:




Class Action Legislation and Reform


The Weekly Standard Blog addresses the highly publicized scandal involving Milberg Weiss attorney William Lerach and securities class action reform legislation proposed by Texas Senator John Cornyn entitled the Securities Litigation Attorney Accountability and Transparency Act (SLAATA).  (See my earlier commentary on the proposed bill here)



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Here are some blog postings from the past week (and a day) that might be of interest to class action practitioners:


Class Action Decisions


CAFA Removal


CAFA Law Blog provides a case summary of an Illinois federal court decision declining removal jurisdiction under CAFA pursuant to CAFA’s permissive abstention provisions.




See Drug and Device Law Blog for this guest article by Sean Costello reviewing a recent Seventh Circuit decision holding that the phrase “not less than 7 days” used in 28 U.S.C. §1453(c)(1) to describe the time to appeal a remand order of a case removed under CAFA really means “less” than 7 days, contrary to the rulings by other federal circuit courts of appeals that “less” was a typographical error that really meant “more.”




Class Action Arbitration Waivers


Class Action Defense Blog discusses a recent California federal court decision on class action arbitration waivers and preemption under the Federal Arbitration Act.




Attorney’s Fee Awards


How Appealing highlights a “must read decision” by the Eleventh Circuit Court of Appeals addressing the appropriateness of an enhanced attorney’s fee award for achieving “exceptional” results in a class action, calling it a “must read for




Class Certification


The New York Daily News gossip column reports on class certification in a wage and hour class action filed against a club owned by rapper Jay-Z (there were a multitude of music and pop culture blogs commenting on this decision, but most of them simply quoted or paraphrased this article):




Class Action Scandals


Overlawyered reports on comments made by the jury foreman in the trial of three Kentucky lawyers accused of mail fraud in connection with a fen-phen class action settlement.  As the article reports, the court declared a mistrial after the jury became deadlocked 10-2 for acquittal in deliberations of charges against two of the defendants after previously acquitting the third defendant, Milbourne Mills, Jr.




The Paul Corio Weblog comments on the granting of a special license for a racehorse to race in New York because two of the horse’s minority owners are the remaining defendants in the Kentucky fen-phen fraud case.




Commentary on Class Action Issues


The Complex Litigator examines cases addressing the potential disastrous consequences of plaintiffs’ class action counsel failing to do a thorough conflicts check.




The Wall Street Journal Law Blog has a recent article with the fairly self-explanatory article “Are Consumer Class-Actions Bans Going the Way of the Dodo?”




InjuryBoard.com discusses a highly anticipated case pending before the Seventh Circuit of Appeals involving the Truth In Lending Act (TILA) and analyzes the potential impacts of a ruling one way or the other…




…and more on the same case from The Big Picture:




SCOTUS Blog comments on the potential impact of actions by the Department of Justice and the Federal Trade Commission on an appeal to the United States Supreme Court in a lawsuit involving advertising of “light” cigarettes:




Class Action Legislation and Reform


Wage Law reports on the California Supreme Court’s decision to grant review in a class action lawsuit to address whether the attorney-client privilege protected against disclosure of a pre-litigation memorandum from outside counsel to corporate counsel.




The Electronic Frontier Foundation comments on the passage of the FISA Amendments Act, which grants retroactive immunity to telecommunications companies sued in numerous class actions for alleged actions in connection with the Bush administration’s domestic wiretapping program…




… and Point of Law offers a response to EFF’s statement…




…as well as a summary of the Senate vote:




The Association of Corporate Counsel provides links to a position paper by ACC Europe, the European chapter of that same organization, critical of proposals to introduce US-style class action legislation in Europe.




International Class Actions


Mass Tort Litigation Blog provides a link to a recent Federalist Society article by John Beisner, Allison Orr Larsen, and Karl Thompson, Canadian Class Action Law: A Flawed Model for European Class Actions.






The Yeshiva World and Shalom New York report on a successful Israeli class action involving fees charged for text messages sent to kosher cell phones.






The Jurist reports on proceedings on remand in a class action filed under the Alien Tort Claims Act (ATCA) by South Africans seeking relief from several businesses for alleged complicity in the former South African government’s system of apartheid and provides links to various resources relating to the case.




Summaries and Roundups


The D&O Diary summarizes recent news in the areas of options backdating lawsuits, subprime-related litigation, securities class actions, and other topics.




Consumer Law and Policy Blog offers a roundup of recent news relating to consumer law, including recent decisions on class action arbitration waivers.




The North Carolina Business Litigation Report offers a listing of interesting issues on appeal from the Business Court, including issues relating to class actions and derivative suits.



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Here are some blog entries from the week that was that might be of interest to class action practitioners:


Class Action Decisions


Summaries and commentary of class action case decisions highlighted this past week’s class action blog postings:


The Complex Litigator provides an analysis of a recent California Court of Appeal decision upholding a defendants’ motion to strike class allegations in a would-be class action prior to the plaintiffs filing a motion for class certification, including clarification of the procedural basis for the defendant’s request to “strike” the class allegations:




Drug and Device Law Blog offers a “short rant” critical of a recent Arkansas Supreme Court decision holding that a “rigorous analysis inquiry” of class certification requirements is not required under Arkansas procedure:




CAFA Law Blog is back with a CAFA removal case summary that hearkens us back to childhood and those “Choose Your Own Adventure” books (which I used to love even though I always seemed to end up with the bad ending).




Consumer Law & Policy Blog comments on a New Mexico Supreme Court decision prohibiting class action waivers in consumer agreements…




…more from Alabama Consumer Law Blog on the same decision...




… and LegalNewsline.com provides commentary from the New Mexico Attorney General on the impact of the decision:




North Carolina Appellate Blog summarizes a recent Fourth Circuit Court of Appeals decision clarifying the burden of proving federal jurisdiction and other standards for removal under CAFA.




Daily Kos summarizes the court’s ruling following a bench trial in a lawsuit filed by veterans’ groups against the Veteran’s Administration seeking reforms in health care and claims procedures for veterans (see my earlier commentary on characterizations of this case as a “class action” here and here):




Wisblawg comments on the class certification decision in a lawsuit challenging the constitutionality of Wisconson’s “diploma privilege” which allows in-state graduates to be admitted to the bar without taking the bar exam (see previous entries discussing this decision here and here):




Corporate Legal Times discusses a Third Circuit Court of Appeals’ opinion in a class action claiming that a hospital’s practice of charging uninsured patients more than insured patients violated consumer protection laws.




Subprime Mortgage Lawsuits


Busted: Bankers and the Digital Economy comments on a recent California federal court decision in a class action lawsuit filed under the Truth in Lending Act…




…commentary on the same case from LoanWorkout.org.




Class Action Trends


This seemed like a good week to highlight some excellent recurring features provided by other class action-related blogs.


The D&O Diary provides periodic updates of trends in securities lawsuit filings and related statistics:




Class Action Defense Blog provides a weekly summary of the trends in class action filings in the California courts:




Classified provides periodic summaries of class action news:




Class Action Scandals


One class action lawyer is sentenced…


The blogosphere was quick to react to the 5-year prison sentence of class action lawyer Dickie Scruggs for conspiracy to commit bribery


From Marianne M. Jennings:




From the NY Times Dealbook Blog:




…while another is acquitted…


Letter of Apology reports that Melbourne Mills Jr., one of the three defendants in the Kentucky fen-phen wire fraud trial has been acquitted, while the jury continues deliberations over charges brought against two co-defendants:




Class Action Settlements


Overlawyered contributor Ted Frank recounts his appearance as an objector in the fairness hearing of a settlement involving the Grand Theft Auto video game…




…for more commentary from the settlement and a link to a New York Times article discussing the case, see this entry on Gamepolitics.com




Class Action Legislation and Reform


Law and More provides commentary and an interview with attorney Joseph K. Hetrick comparing the mechanical and philosophical differences between the U.S. legal system and those in European countries, including predictions about European class action reforms.




The American Gathering of Jewish Holocaust Survivors and their Descendants has posted a bill being considered by the U.S. House of Representatives that would provide a federal cause of action for claims for benefits under Holocaust-era insurance policies.  The bill has a provision dealing with opt-out rights of claimants in pending or new class actions seeking benefits under Holocaust-era insurance policies.




Class Action Cinema


Finally, films about class actions are highlighted in recent film review blog entries.  The Sweet Hereafter gets a 4-Star rating from Daily Film Dose




…but North Country gets a mixed review from I Think Therefore I Review: 



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