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 provides a summary of recent decisions in several U.S. Circuit Courts of Appeals involving the standards for approving class action settlements and fee awards. http://www.uclpractitioner.com/2008/08/recent-class-ac.html
Class Action Defense Blog comments on a California federal court decision addressing class certification in a wage and hour class action for alleged unpaid wages for meal and rest breaks in light of the California Court of Appeal’s recent decision in Brinker Restaurant Corp. v. Superior Court (2008 WL 2806613)…
http://classactiondefense.jmbm.com/2008/09/class_action_defense_caseskimo.html
… and more from the same decision on National Law Journal’s Legal Pad, LA…
http://www.lalegalpad.com/2008/09/federal-judge-r.html
… and commentary from Wage Law on the possible unintended consequences of Brinker.
http://wagelaw.typepad.com/wage_law/2008/08/the-law-of-unintended-consequences.html
CAFA Law Blog provides another entertaining musical revue of a CAFA remand case, this time to the tune of a Steve Miller Band favorite:
http://www.cafalawblog.com/-case-summaries-plaintiff-gets-on-that-707-with-plans-of-rridin-high-but-that-big-ol-jet-airliner-wont-carry-her-too-far-away.html
Classified offers a synopsis of a Florida federal court decision analyzing whether the superiority element of class certification was met in a fair debt collection case despite the fact that the alleged damages of individual class members were de minimus:
http://www.carltonfields.com/classactionblog/blog.aspx?entry=235
The Insurance Reinsurance Blog summarizes and provides a link to an Eighth Circuit Court of Appeals decision upholding a lower court’s decision dismissing an insurance class action on the ground that permitting a federal lawsuit to go forward would impair Missouri’s right to regulate insurance and would violate the McCarran-Ferguson Act.
http://www.insurereinsure.com/BlogHome.aspx?entry=929
North Carolina Appellate Blog summarizes a North Carolina Court of Appeals decision holding that Rule 23(c) did not require notice to absent class members in the event of a court-ordered dismissal as opposed to a voluntary dismissal.
http://womblencappellate.blogspot.com/2008/09/coa-holds-that-no-class-notice-required.html
Several blogs, including the Consumerist, Tech News, and LawMemo commented on the Washington Supreme Court’s decision last week holding a class arbitration waiver unconscionable.
http://consumerist.com/5043570/washington-upholds-att-customers-right-to-class-action#c7514731
http://www.newsvine.in/2008/09/02/once-again-court-says-telco-cant-force-arbitration-over-a-lawsuit/
http://www.lawmemo.com/arbitrationblog/2008/09/unconscionabili.html
Practice Tips
Drug and Device Law Blog offers an excellent summary of the Multidistrict Litigation (MDL) coordination process:
http://druganddevicelaw.blogspot.com/2008/09/multidistrict-litigation-process.html
The Complex Litigator has been providing on-location updates from the Consumer Attorneys Association of LA (CAALA) annual convention, including this summary of practice pointers on the prosecution of class actions in California by attorney Jerome Ringler:
http://www.thecomplexlitigator.com/2008/08/liveblogging–2.html
Class Action Trends
DigitalDay Break comments on what a recent class action lawsuit and settlement regarding online accessibility for the disabled might mean to online marketers.
http://digitaldaybreak.wordpress.com/2008/09/02/what-the-target-accessibility-lawsuit-ruling-means-to-online-marketers/
The D&O Diary discusses reasons why D&O insurance premiums have not skyrocketed despite the recent wave of subprime litigation.
http://www.dandodiary.com/2008/08/articles/d-o-insurance/subprime-lawsuits-mount-so-what-about-do-pricing/
Class Action (and related) Commentary
Federal Civil Practice Bulletin summarizes an article from Vanderbilt Professor Richard A. Nagreda entitled “Class Certification in the Age of Aggregate Proof”:
http://federalcivilpracticebulletin.blogspot.com/2008/09/prof-nagareda-posts-article-on-class.html
Overlawyered reports on a modest proposal from ESPN Columnist Rick Reilly that a class action be filed against minor league baseball players who “sat stewing in the minors while big leaguers were allowed to cheat.”
http://overlawyered.com/2008/08/espn-columnist-minor-league-players-should-sue-over-steroids/
North Carolina Business Litigation Report discusses a North Carolina Court of Appeals decision allowing a plaintiff to proceed in a usury and deceptive trade practices action challenging the practice of litigation funding, or an agreement providing for an advance of litigation costs by a law firm in exchange for a premium return in the event that the case was successful. Coincidently, the decision comes as the practice of litigation funding is becoming more common overseas.
http://www.ncbusinesslitigationreport.com/2008/09/articles/class-actions/the-practice-of-litigation-funding-gets-a-chilly-reception-from-the-north-carolina-court-of-appeals/#more
and more commentary on the acceptance of litigation funding in loser pays jurisdictions like Australia, from Point of Law:
http://www.pointoflaw.com/archives/2008/09/shareholder-cla.php
Mass Tort Litigation Blog addresses recent changes to British law permitting investment in law firms:
http://lawprofessors.typepad.com/mass_tort_litigation/2008/08/uk-changes-allo.html
The Race to the Bottom provides a critical, multi-part response to a July report issued by the U.S. Chamber of Commerce Institute for Litigation Reform, which proposed various reforms in securities class actions.
http://www.theracetothebottom.org/home/the-chamber-of-commerce-and-excessive-litigation-be-careful-3.html
“Urban-based accidental journalist” curb girl laments life as an absent class member in a class action settlement involving health insurance in a way that she does not find entirely clear:
http://sidewalkeater.blogspot.com/2008/09/class-action.html
Class Action Politics?
Christina Walldren criticizes Barack Obama’s support for the Class Action Fairness Act (CAFA), arguing that CAFA has the effect of “shutting off avenues of redress” for “working class people”…
http://christinawalldren.com/2008/09/02/we-shall-overcome/
… and more commentary sharing the same general sentiment from the designers.
http://jevdet.blogspot.com/2008/09/corporate-state-lackey-obama.html
As an aside, for all of you disenfranchised members of the radical left, In case it helps you feel better, I can tell you from experience that discrimination, employment, and consumer fraud class actions are still going strong and state courts are still seeing their fair share of class actions despite the “thinly veiled ‘special interest extravaganza'” that led to CAFA’s passage–and PLEASE remember that a vote for Ralph Nader (or Dr. John Hagelin or Lyndon LaRouche) is a vote for Bush.
But lest you think that the far left is the only group not solidly on the Obamamania bandwagon, here’s an entry from the Delaware Curmudgeon quoting with approval this analysis from legal scholar “jmflynny,” who responds to an Obama campaign charge that John McCain and Sarah Palin are against equal pay for equal work with the statement that “the Democrat Party hates businesses, given that they want to give any employee the right to file, without proof, class-action lawsuits for something that may or may not have happened decades ago.”
http://delawarecurmudgeon.blogspot.com/2008/09/on-equal-pay-for-equal-work-issue.html
Another friendly reminder–a vote for Bush is also a vote for Bush. A vote for Bob Barr on the other hand…
…Nope. Still a vote for Bush.
Finally, here is arguably the most balanced blog commentary from this past week on the relative positions of the presidential candidates on class action and tort reform issues, written by, I hate to admit this, a trial lawyer…
http://www.nctriallawblog.com/north_carolina_trial_law_/2008/08/mccain-v-obama.html
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Minnesota House Considering Significant Consumer Class Action Reform Measures
Posted in Class Action News, class action reform, Commentary, tagged class action reform, consumer, consumer class action, consumer fraud, deceptive trade practices, democratic farmers labor party, minnesota, tort reform, unfair competition on February 10, 2011| Leave a Comment »
According to this February 8, 2011 article from Lee Ann Schultz of the Twin Cities Daily Planet, the Minnesota legislature is considering a bill that, according to its sponsors, would curtail consumer class action litigation in the state. The bill, HF211, has three key provisions of interest, which would:
All three measures are similar to class action reform measures passed or at least considered by various states over the past decade or so. However, there are at least three aspects of the proposed reforms that would make consumer protection actions in Minnesota more restrictive than in other states.
First, this bill appears to limit consumer protection actions to actual consumers. Some state statutes broadly construe who is a “consumer” for the purposes of enforcing the consumer protection law, so that small businesses and other non-natural “persons” can sometimes qualify.
Second, while most states have some sort of requirement that there be proof of causation of injury in a consumer protection case, HF211 would require a specific kind of injury:
This language appears to restrict consumer protection claims to only those situations in which the named plaintiff and other would-be class members suffered a loss of value to the product or service purchased. So, a claim that deceptive marketing or advertising practice caused consumers to suffer financial losses other than loss of value to the product itself would apparently be foreclosed. The specific language may be intended to avoid the kinds of uncertainty that has plagued litigants in California following the passage of Proposition 64 in 2005, a voter-approved reform that requires proof that the named plaintiff “lost money or other property” in order to pursue a class action under the state’s Unfair Competition Law (UCL).
Curiously, the bill makes reference to a requirement that this injury be proved on an “individual” basis, even in a class action:
It is unclear whether this language, if adopted, would a) effectively prevent any consumer protection claim from being pursued on a class basis because all consumer protection claims would require individual proof of injury, b) be interpreted only as a threshold matter to insure that the class representative (but not absent class members) has standing before the case is allowed to proceed, or c) somehow introduce a new requirement of “individual” proof for all class actions, even while still allowing class actions to be pursued in some form.
Third, this bill would allow appeals of class certification decisions as of right and would create an automatic stay. By contrast, federal rule 23(f), and the similar rules of many states allow interlocutory appeal of class certification orders only in the discretion of the appellate courts and do not mandate an automatic stay of proceedings at the trial court level while the appeal is pending.
The Bill was introduced in the state House on January 24. It is not clear what the Bill’s chances of passage are. Only one of the Bill’s 12 authors is a Democrat (or, for my Minnesota friends who want to be picky, DFL).
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