- Whichever way high court rules in Hood v. AU Optronics, new Fifth Circuit decision will fuel parens patriae actions by AGs in state courts [Alison Frankel, earlier]
- Justice Alito blasts federal district judge Harold Baer for insisting on race quotas for class action lawyers [Michael Greve/Liberty Law, Tom Goldstein/SCOTUSBlog]
- “Unfortunately, even if SCOTUS does away with fraud on the market, plaintiff lawyers will still bring omission cases” [Bainbridge, earlier]
- Ted Frank’s adventures, as documented at Point of Law [Pampers Dry Max (earlier), L’Oreal salon hair products, Korean Air, Wyeth]
- Does it cost too much to provide class action defendants with due process? [Andrew Trask] Related on Mark Moller’s work [same] Should class actions be understood as creating trusts? [same]
- Avery v. State Farm billion-dollar aftermarket-parts class action seeks RICO resuscitation, in Monty Python echo [Chamber-backed Madison County Record]
- If you didn’t know distinguished proceduralist Arthur Miller as a Milbergian, you might detect it from his writing [Trask]
Readers may recall the landmark case in which laptop maker Toshiba agreed to a notional $2 billion settlement (and a very crisp and real $147 million in plaintiff’s legal fees) to resolve charges that its laptops could under certain extreme conditions result in loss of user data, although no real-world customer appeared to have experienced the problem. Copycat lawsuits followed against other laptop makers, the supposed glitch being by no means unique to Toshiba, and at last report (May 11, 2001 and Aug. 14, 2004) Compaq had enjoyed much success in beating suits of this sort filed by Texas lawyers.
Apparently its luck didn’t hold up forever, though, because in May Judge Tom Lucas of the Cleveland County, Oklahoma District Court approved a nominal $640 million settlement of laptop glitch claims against Compaq and its parent, Hewlett-Packard, with $40 million in attorneys’ fees to various attorneys, including Reaud, Morgan & Quinn, the Beaumont, Texas firm of Wayne Reaud. (Tom Blakey, “Local court OKs $640M class settlement in computer lawsuit”, Norman Transcript, May 16)(settlement website).
According to a paper by Anthony Caso for the Washington Legal Foundation (PDF), the change in fortunes owed much to some successful forum-shopping. It seems plaintiffs in the first rounds had attempted to form a nationwide class action on the premise that the consumer law of Texas, Compaq’s home state, could properly be applied to the claims of customers in all 50 states. The Texas courts, however, wound up rejecting that premise.
…instead of taking no for an answer from the Texas Supreme Court – the final arbiter of Texas law, the class action attorneys convinced an Oklahoma court to rule that the case should be a nationwide class action, and that class action status could be premised on the idea that Texas consumer law applied to all of the claims. Ignoring the ruling of the Texas Supreme Court, the Oklahoma courts agreed with this argument and certified the case as a nationwide class action.
Unfortunately for all of us, the United States Supreme Court declined to review the case.
And the $40 million in fees? Reaud & co. would have nothing but the best talent in to bless the fees, per the Norman Transcript account:
Testimony at the April 29 hearing in Cleveland County District Court included that of Arthur R. Miller, a renowned legal scholar and commentator on civil litigation, copyright and privacy laws. Miller, a professor to the faculty of the New York University School of Law and the NYU School of Continuing and Professional Studies, estimated the coupon redemption rate would be as high as 30 percent — more than double the average redemption rate in settlement cases.
And if actual coupon redemptions come in far below a 30 percent rate — not that we’re necessarily ever going to find out — Prof. Miller’s reputation will suffer, right?
More: Beck & Herrmann call attention to an automotive class action case (Masquat v. DaimlerChrysler, alleging defect in rack and pinion steering systems) that also took advantage of Oklahoma’s willingness to apply manufacturer’s-home-state law to fuel nationwide class actions. They write that because of that distinctive handling of choice of law, “class action plaintiffs’ counsel now gravitate to Oklahoma as moths to light.”