Feeds:
Posts
Comments

Posts Tagged ‘class action lawyer’

Forbes columnist Daniel Fisher has authored an excellent preview of the three class-action-related cases set to be decided by the U.S. Supreme Court this term.  The article, entitled Class-Action Lawyers Face Triple Threat At Supreme Court, previews the issues in each of the three cases and summarizes what’s at stake for class action lawyers.  The article points out that although the three decisions have potential to spell disaster for class action plaintiffs given the conservative majority in the Supreme Court, two of the three class-action-related decisions last term came out in favor of the plaintiffs.  I highly recommend this article, as well as Fisher’s work more generally.

For quick reference, the three cases set for decisions on class action issues this term, and the questions presented for review, are as follows:

Comcast v. Behrend, No. 11-864 – “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”

Standard Fire Insurance Co. v. Knowles, No. 11-1450 – “When a named plaintiff attempts to defeat a defendant’s right of removal under the Class Action Fairness Act of 2005 by filing with a class action complaint a ‘stipulation’ that attempts to limit the damages he ‘seeks’ for the absent putative class members to less than the $5 million threshold for federal jurisdiction, and the defendant establishes that the actual amount in controversy, absent the ‘stipulation,’ exceeds $5 million, is the ‘stipulation’ binding on absent class members so as to destroy federal jurisdiction?”

Amgen Inc. v. Connecticut Retirement Plans, No. 11-1085 – “1. Whether, in a misrepresentation case under SEC Rule 10b-5, the district court must require proof of materiality before certifying a plaintiff class based on the fraud-on-the-market theory.  2. Whether, in such a case, the district court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the-market theory before certifying a plaintiff class based on that theory.”

Read Full Post »

In response yesterday’s entry discussing Daniel Fisher’s article on the potential impacts of Concepcion, I got one of the best comments that I’ve ever received on this site.  It comes from Portland complex injury and consumer class action attorney David Sugerman, who blogs at www.davidsugerman.com.  Of course, I disagree with just about every word of it, but with imagery like a bunch of corporate fat cats “fixing to celebrate the opening of the all-you-can-eat trough of greed,” I could not help but re-post it here:

I’m amused. As I said to defense counsel at a large multi-national firm, I guessed that midway through the second glass of champagne, the defense bar realized it had a real problem. He is apparently looking for a new job or to transition into other areas of practice.

Your one concrete example–retail sales–is, as you know, a less viable class because of problems of ascertainment, notice, locating the class, providing notice and obtaining and distributing relief. And not all retail sales cases survive. You likely recall the Gateway case some years ago with the forced mandatory arbitration clause in the paperwork in the box that was deemed accepted upon registration?

I love the concerted talking points in the defense bar that these cases are not done. Those of us who represent consumers know better.

We also know the torrent about to be unleashed when consumers can no longer take concerted action to stop nickel and diming on high-volume, small amount claims. AT&T, Comcast, banks, utilities, credit card companies are fixing to celebrate the opening of the all-you-can-eat trough of greed.

The argument that Congressional or Executive action *might* change things proves too much. Absent such action, consumer class cases are pretty much done. The argument also illustrates the crass overreaching in SCOTUS’ opinion, with views on federalism and statutory construction that are as breathtaking as the Citizens United case.

This is really not a problem for me because I handle a wide range of consumer and plaintiff problems. But my colleagues in high-priced defense firms who defend consumer class actions for a living are likely to have problems.

So no, if I were a high end defense attorney, I wouldn’t take much comfort in Forbes view or the talking points. It’s going to get bleak out there.

Lest you doubt my dire predictions, let’s set a wager for 12 months from the decision on how many consumer class actions have been filed, how many layoffs in the defense industry, or some other agreed-upon metric that we can revisit next year.

Ok, David, friendly banter on.

First, I must say that I don’t know a single defense lawyer who owns a private jet, but I know several plaintiffs’ lawyers who do, so all this talk about “high-priced” defense firms rings a little hollow to me.

Second, defense lawyers will have jobs for as long as there are plaintiffs’ lawyers around to file lawsuits, and somehow I don’t see the plaintiffs’ bar throwing in the towel this easily.  What you may see is simply a shift in the kinds of class actions that get filed in the future, or the industries that are targeted.  I say “targeted” because in my experience trends in consumer class actions are more often driven by the creativity of the entrepreneurial trial bar than by any epidemic of corporate greed.  Don’t get me wrong, I’m not saying there aren’t well-publicized scandals involving an epidemic of corporate greed (See Enron), but they tend to generate securities or ERISA class actions, not consumer class actions.

Finally, I’ll wager you, although not for money.  Only for pride.  (I’m not made of money after all, I’m just a defense lawyer).  I’ll bet that not only don’t we see a decrease, but we’ll actually see an increase in consumer class actions over the next year.  Sort of like the rash of class actions filed just before CAFA took effect.  I’m not sure at this moment how we’ll measure this, but I’d imagine that there’s a consulting firm out there (no doubt worried about the effect Concepcion is going to have on its own bottom line) planning just the kind of research we need.

So, if you’re a consulting firm looking for a project, we’ve got a job for you (pro bono, of course)…

Read Full Post »

I shouldn’t encourage this, but I just couldn’t resist.  OTS Software offers a free game called “Class Action Killers,” which it describes as follows:

Class Action Killers is a 3D 3rd-person shooter game. Attorney Max Fees has dispatched his lethal lawyers to destroy the city. You must stop his lawyers and put an end to Max Fees. Be especially careful of the female lawyers as they love to attack from behind.

The game is free for download here.  For anyone who’s just had enough of class action lawyers and is otherwise inclined to do something drastic, I suppose that this game provides a somewhat more harmless outlet for your rage.

Please note, I have not downloaded “Class Action Killers” myself and cannot verify that the download is safe or that the game is any fun.

Read Full Post »

Washington Post columnist has David Ignatius published a great op-ed last week regarding the downfalls of high-profile plaintiffs’ class action lawyers Melvyn Weiss and Dickie Scruggs.  The column appears in the June 5 edition of the Post under the title Reining in the Kings of Tort and in the June 6 edition of the Indianapolis Star under the title The Case of the Runaway Class Action Lawyers.  Mr. Ignatius points out that the recent bribery, illegal kickback, and other scandals involving class action lawyers are tarnishing an image of plaintiffs’ lawyers as the “good guys” fighting for the common man against corporate greed and corruption.  He analyzes the possible motivations underlying these scandals and their impact on popular myths about class action lawyers as champions of the people created by authors like John Grisham and the works of consumer advocates like Ralph Nader.  He observes that men like Weiss and Scruggs were probably not motivated by greed–they both had more money than they could spend.  More likely, they became so zealous in their belief that they were protecting the interests people who had been the victims of harm that they began to “cut corners.”  The end justified the means. 

Scandals like those involving Weiss and Scruggs and abuses of trust of other so-called consumer advocates like former New York Attorney General and Governor Eliot Spitzer don’t mean that all plaintiffs’ lawyers and consumer advocates are greedy, unethical egomaniacs (see my earlier commentary here).  However, they do expose over-simplistic popular conceptions of who is a hero and who is a villain.  As important as recognizing that plaintiffs’ class action lawyers are not all heroes is the recognition that not all corporations are out to exploit, defraud, or otherwise harm the public.  Just as plaintiffs’ class action lawyers are human beings with real human flaws, large corporations are run by human beings with real human compassion.  Hopefully it doesn’t take reading Mr. Ignatius’s column for most people to appreciate those realities, but his column does serve as an important reminder.  Real life is not like a John Grisham novel.

Read Full Post »