Posts Tagged ‘class action review’

As 2010 winds down, it’s time to review the key developments in class action law.  It was an especially busy year for the federal courts, and in particular the U.S. Supreme Court, on issues impacting class action practice.  Here, in chronological order, are 10 key developments from the year that was:

  1. January 5 – In In re Baycol Products Litigation, the Eighth Circuit follows the Seventh Circuit’s lead in upholding the right of a federal court to enjoin a putative statewide class action from proceeding where a federal court had already denied class certification in a case involving substantially similar claims.  (See CAB entries dated January 7 and January 12).
  2. February 23 – In a decision that will impact many class actions removed under the Class Action Fairness Act, the Supreme Court adopts the “nerve center test” as the standard for determining corporate citizenship, in Hertz Corp. v. Friend.  (See CAB entry dated March 2)
  3. March 31 – The Supreme Court holds that states may not regulate the types of claims that may be filed as class actions in the federal courts, in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.  (See CAB entry dated April 8)
  4. April 7 – In American Honda Motor Co. v. Allen, the Seventh Circuit holds that a trial court must rule on challenges to the admissibility of expert testimony relevant to class certification before deciding whether a class may be certified.  (See CAB entry dated May 4)
  5. April 26 – The Ninth Circuit issues its decision in Dukes v. Wal-mart Stores, Inc., adopting rigorous class certification standards similar to those previously adopted by the Second Circuit in In re IPO Securities Litigation, 471 F.3d 24 (2d Cir. 2006), but nonetheless certifying under FRCP 23(b)(2), what has been called the largest employment discrimination class action in history.
  6. April 27 – The Supreme Court seemingly puts an end, for all practical purposes, to the concept of class arbitration by holding that a defendant could not be compelled to defend an arbitration on a class basis where the arbitration clause did not expressly provide for class arbitration, in Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp.  (See CAB entry dated May 11).
  7. June 24 – In Morrison v. National Australia Bank, the Supreme Court deals a fatal blow to “foreign-cubed” class actions, holding that § 10(b) of the Securities and Exchange Act of 1934 does not allow for fraud claims involving transactions on foreign exchanges that occurred outside the United States. (See case summary at SCOTUS blog).
  8. July 19, October 20 – An Eleventh Circuit panel issues a controversial decision in Cappuccitti v. DirecTV, Inc., severely restricting CAFA removal jurisdiction to cases where the amount in controversy exceeds $75,000 with respect to at least one class member, but later reverses itself in an October 15 opinion.  (See Guest Post from Eric Jon Taylor and Jon Chally at CAFA Law Blog for more on the first decision and this October 20 CAB entry on the second decision).
  9. November 9 – Supreme Court hears oral argument in AT&T Mobility v. Concepcion, in which the Court considers whether the Federal Arbitration Act preempts state law holding a class arbitration waiver unconscionable.  (See CAB fsummary of oral argument dated November 17).
  10. December 6 – Supreme Court grants certiorari in Wal-Mart Stores, Inc. v. Dukes, to decide the issue of whether a claim for monetary relief can be certified under FRCP 23(b)(2).  (See CAB entry dated December 7).

Just considering the cases still awaiting ruling before the Supreme Court, 2011 promises to be another exciting year in the world of class actions.  Happy New Year to all!

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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 UCL Practitioner quotes a recent California Court of Appeal decision reversing a trial court’s order denying class certification on the ground that the court had not allowed pre-certification discovery of the identity of possible replacement class representatives under Pioneer Electronics v. Superior Court, 40 Cal. 4th 360 (2007) (link to opinion provided by Class Action Defense Blog):


CAFA Law Blog provides a synopsis of a Louisiana federal court decision addressing the time for removal under CAFA and the non-applicability under CAFA of the “first-served” rule, which provided that all defendants had to join in a removal petition within 30 days from the date that the first defendant was served with process:


Class Action Defense Blog summarizes a California opinion upholding the dismissal of a claim for attorneys fees under a fee sharing agreement that was not disclosed prior to another court’s ruling on a fee award in an underlying class action settlement:


Delaware Corporate and Commercial Litigation Blog discusses a Delaware Chancery Court decision allowing objectors limited discovery in evaluating the fairness of a class action settlement:


Class Action News

Jurist reports on a class action lawsuit filed against the NSA, President Bush, Vice President Chaney, and other government officials for actions in connection with their warrantless surveillance program to gather consumer information from telecommunications companies:


Tribune Company issues a press release regarding an ERISA class action filed by various reporters, editors, and other employees of the LA Times, a case covered in various blog entries last week.  (See last week’s CABWR)…


… and more on the case from Southern California Public Radio:


Point of Law reports on the settlement of long-standing litigation against the New York City’s homeless programs by consolidating all pending litigation into a single class action settlement:


Class Action Commentary

A Seattle Supersonics fan provides an insider’s view of a heated battle over a subpoena issued by the defendant to a founder of the fan-organized lobbying group, Save our Sonics, in a putative class action for alleged deceptive marketing practices filed on behalf of Sonics ticketholders against the ownership group that recently moved the team to Oklahoma City, from Seattle Center Arena Reboot:


The Complex Litigator offers commentary on developments in California case law regarding the preclusive effect of a denial of class certification:


Spam Notes comments on a recent class action settlement involving alleged text messaging spam and addresses the issue whether text messaging spam falls within the purview of the Telephone Consumer Protection Act of 1991 (TCPA):


Practice Tips

Drug and Device Law Blog offers a “Multidistrict Litigation Compendium,” which includes a clarification of the distinction between the MDL process and class certification:


Class Action Trends 

Mass Tort Litigation Blog offers a link to an ABA Litigation News Section Report discussing a trend in courts ordering a full evidentiary Daubert hearing to assess the admissibility of expert testimony at the class certification stage of a class action:


The D&O Diary discusses the “dark new phase” of litigation spawned from the subprime economic crisis:


… and for loads of content on various other legal issues implicated by the financial crisis and proposed bailout, see http://www.theracetothebottom.org/.

Real Lawyers Have Blogs updates a previous story about a plaintiffs’ class action law firm that hired a PR firm to post a message on the social networking website Twitter seeking potential class representatives.  The update reports that the PR firm retracted the post following media and public reaction, but defended its use of Twitter to generate publicity about a potential class action as in the public interest…


… and another brief commentary on the story from Overlawyered:


International Class Action Law

Securities Docket and Bankruptcy Information Centre discuss issues facing two British pension funds in pursuing securities class action claims against the now bankrupt Lehman Bros. investment bank:


http://bankruptcy.org.uk/bankruptcy-news/pension-funds-review-status-of-lehman-class-action-ipecom/ (quoting article from IPE.com)

Legal Pad LA discusses a class action for life insurance benefits filed on behalf of a putative class of descendants of victims of the Armenian genocide of World War I against a foreign insurer in federal court in California:


ElectEcon takes issue with a Canadian usury law that formed the basis of a Ontario court’s decision holding a Canadian Satellite TV company’s late fees illegal in a class action decision impacting millions of customers: 


Remember the Midwest comments on an article in Australian newspaper The Age discussing a possible trend in securities class actions arising out of a company’s failure to disclose facts concerning its carbon emissions.  (for a ClassActionBlawg entry discussing the same article, click here):


Multinational Corporations links to a Business Day South Africa article reporting on developments in a case filed under the Alien Tort Claims Act against several multinational corporations for their alleged complicity in the former apartheid policy of the South African government:


Class Action Politics

Primary Monitor Blog provides a list of issues on which Presidential candidates Barack Obama and John McCain agree, including their support of the Class Action Fairness Act (CAFA):

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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

Law and Insurance discusses a recent Texas Supreme Court decision holding that a duty to defend was triggered in the context of class actions in which the plaintiffs argued that an alleged product defect in cell phones allegedly could cause brain injury, even though the plaintiffs only sought to recover the cost of a headset as damages on behalf of class members and did not seek damages for actual bodily injuries…


… and Point of Law discusses a Pennsylvania federal court decision dismissing a putative class action involving similar claims that cell phones cause brain damage on federal preemption grounds:


CAFA Law Blog discusses a Rhode Island federal court decision rejecting the “legal certainty” standard for meeting the $5 million amount in controversy requirement under CAFA:


Alaska Employment Law discusses a 9th Circuit Court of Appeals decision upholding sanctions in an FLSA/state wage hybrid class action for the failure to provide Rule 26 damages disclosures for all plaintiffs who opted in to the suit:


How Appealing and Securities Docket discuss and provide links to a Third Circuit Court of Appeals decision reversing a lower court’s dismissal of a securities fraud case involving statements about the commercial marketability of the drug Vioxx:



Plan Adviser summarizes and provides a link to a recent Iowa federal district court decision denying class certification in an ERISA case filed against a retirement plan service provider on behalf of a would-be class of tens of thousands of 401K plans:


Class Action Defense Blog summarizes an Eleventh Circuit Court of Appeals Decision upholding decertification of a class based on the individualized nature of the damages claimed in a case alleging federal Truth in Leasing regulations:


Class Action News

The Complex Litigator reports that a petition for review has been filed in the highly publicized wage and hour class action decision by the California Court of Appeal in Brinker Restaurant Corp. v. Superior Court:


The D&O Diary discusses a securities class action filing against mortgage giant Fannie Mae in the wake of the federal government’s takeover this past weekend:


Classified provides a summary of recent class action news from the Southeastern U.S.:


THR Esq. reports on the upcoming trial date in a class action filed by former NFL players against the NFL Player’s Association:


PogoWasRight.org discusses reports on a trend in Korea on class action filings resulting from alleged acts of illegal downloading of customer information from publicly available broadband wireless connections:


Class Action (and related) Commentary

The Race to the Bottom offers more installments of its response to securities class action reforms proposed by the U.S. Chamber of Commerce Institute for Litigation Reform:


Drug and Device Law Blog provides a follow up to last week’s discussion of the Multidistrict Litigation (MDL) process:


Class Action Settlements

Overlawyered and The AmLaw Daily report on the $688 million fee award approved for imprisoned lawyer William Lerach’s former firm in a class action settlement arising out of the Enron scandal:



Life of Brad asks lawyers for help in assessing whether any negative repercussions might come of his decision to do nothing and remain part of a class action settlement:


Canadian Class Action Law

Morton’s Musings reports on a ruling by an Ontario court allowing a class action to proceed against the Canadian federal government for alleged negligence in allowing “Mad Cow” disease to spread into the Canadian market from England:


Dipper Chick discusses the use of class actions as a tool by minority party candidates in Canada for seeking ballot and media access in elections:


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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 entries from the week that was that might be of interest to class action practitioners:


Class Action Decisions


Here is a great new entry from North Carolina Business Litigation Report summarizing a recent NC supreme court decision that addresses several interesting Rule 23 issues, including pre-certification dismissal without court approval and full faith and credit issues surrounding foreign states’ class certification decisions and settlement approvals.




The UCL Practitioner is back after a brief hiatus with an excellent summary of a recent California decision addressing pre-certification rights of putative class representatives.




CAFA Law Blog provides a rendition of Led Zeppelin’s “When the Levee Breaks,” re-mixed with a bit of CAFA removal local controversy exception law.




Wage Law has a thorough review of a recent California Court of Appeal decision upholding the validity of a municipal “living wage” ordinance in a class action seeking payment of the wages due under the ordinance.




Illinois Construction Blog comments on a recent decision addressing third party claims against a contractor who installed a credit car system payment at the premises of the vendor being sued in a would-be class action for violations of the Fair and Accurate Credit Transactions Act (FACTA).




Shaw Valenza LLP’s Blawg addresses a recent California decision granting a pre-certification motion to strike a plaintiff’s class allegations, a case addressed by other blogs in recent weeks (see July 1, 2008 CABWR).




Mass Tort Litigation Blog provides a summary and link to a slip opinion by the New Mexico Supreme Court upholding certification of a multistate insurance class action.




Several blogs, including Wallet Pop, Overlawyered, and Class Reactions commented on the decision of an Indiana trial court to grant class certification in a fraud case brought against the Hoosier Lottery.  (see my entry here).






Consumer Law and Policy Blog comments on the recent Seventh Circuit Court of Appeals decision holding that “less” means “less” for the purpose of interpreting the provision of CAFA permitting appeals of decisions to remand in cases removed under the Act…




…and more on the same decision from Class Action Defense Blog:




300-Page Class Certification Discussion Drafts


This post from Drug and Device Law Blog provides a quite-a-bit-more-concise summary of a 291-page “discussion draft” of a federal court’s class certification decision in a RICO case involving claims by third-party payors against a drug company.




Class Action Trends


The D&O Diary reports on trends in options backdating class action lawsuits:






The Modern Woman’s Divorce Guide offers a commentary critical of the filing and settlement of a class action against an auctioneer for sending unsolicited faxes.




Ellen Brown provides a commentary on her website webofdebt.com discussing the subprime mortgage crisis and the potential for “[m]assive class action suits by defrauded borrowers” under the Truth in Lending Act (TILA).




Electronic Discovery


The Complex Litigator has been following closely an e-discovery dispute and related public relations issues arising out of a lawsuit between Viacom and Google involving alleged copyright violations by users of the popular website YouTube.  Although the case is not a class action, the e-discovery issues in this case are similar to those that often arise in the class action context.






International Class Action Law


Canadian law blog, The Court, comments on a recent class action decision by the Supreme Court of Canada addressing the use of private tort law to redress individual harms allegedly caused by the government acting outside the scope of its authority.




Class Action Scandals


Horse racing blog Paulick Report provides an update on story about the link between a decorated racehorse and two Kentucky lawyers whose trial for wire fraud arising out of a fen-phen class action settlement ended with a deadlocked jury last week.




Here’s a link to the latest update in the trial from the WSJ Law Blog (through Mass Tort Litigation Blog)





Class Action Legislation and Reform


Point of Law provides continuing commentary on the FISA Amendments Act, passed by Congress and signed into law last week, which provides immunity to telecommunications companies from pending civil class action lawsuits:



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It’s that time of the week already.  Here are some blog postings from the past week that might be of interest to class action practitioners. 

The fallout from several plaintiffs’ class action corruption scandals took center stage in the class action blogosphere this week.

Mass Tort Litigation Blog discusses the sentencing of plaintiffs’ class action lawyer Melvyn Weiss…


… and discusses a possible settlement involving his firm:


See the many other blog entries discussing Mr. Weiss’ sentencing here:


Class Reactions quotes a less-than-remourseful class action attorney William Lerach discussing his views on the social benefits of his acts of “fee-sharing” and his belief of the injustice of his imprisonment for those acts …


… and see Mr. Lerach’s essay entitled “I am Guilty (My Side of the Story)” at Conde Nast Portfolio.com:


Overlawyered discusses developments in the Kentucky fen-phen settlement fraud scandal:


The Complex Litigator provides a critical review whether a recent California Court of Appeal decision addressing the California Song-Beverly Credit Card Act truly “limits” the scope of the Act’s protections of credit card holders:

http://www.thecomplexlitigator.com/2008/05/tjx-companies-i.html (responding to this entry in the Privacy Law Blog; also see a recent entry on the same case from Class Action Defense Blog here)

Class Action Defense Blog and Wage and Hour Blog both have summaries of a recent decision by the California Court of Appeal addressing alleged conflicts of interest by plaintiffs’ counsel and the named plaintiffs where the attorneys represented both individual class representatives and a labor organization interested in promoting union organizing efforts by class members:



D&O Diary discusses potential insurance implications arising from cooperation given by former executive to plaintiffs’ counsel in a class action filed against the executive’s company (where the executive had previously pled guilty to criminal charges arising out of the same scandal):


The UCL Practitioner has an interesting analysis of a press release issued by the San Francisco City Attorney regarding a public prosecutor’s UCL action being brought on behalf of the San Francisco Health Plan and other political subdivisions and California citizens.  The plaintiffs are reportedly being jointly represented by the City Attorney’s office and a private class action firm.


Point of Law provides a link to a position paper by California Senator Tom Harman entitled “Incentivizing Appropriate Restitution in Class Action Cases.  (For a previous discussion on ClassActionBlawg.com regarding legislation proposed by Senator Harman, click here).


Classified provides a summary of a recent decision by the U.S. Court for the Middle District of Georgia dismissing a class action regarding “guaranteed auto protection insurance policies” due to the plaintiffs’ failure to provide notice of cancellation required under the policy:


Healthcare HR Solutions Blog comments on an increase in wage and hour class action litigation and provides tips on how employers can avoid potential Fair Labor Standards Act (FLSA) liability:


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