- Jury acquits ex-firefighter who claimed disability while competing as a bodybuilder [Boston Herald]
- Authorities snatch kids from homes after parents busted with small amounts of pot [NYT, Tim Lynch/Cato]
- “Case Study on Impact of Tort Reform in Mississippi” [Mark Behrens via Scheuerman/TortsProf]
- When opt-in works: “More than 27,000 S. Korean users join class-action suit against Apple” [Yonhap]
- Casino liable after customers leave kids unattended in cars? [Max Kennerly]
- All is forgiven, says frequent investment plaintiff: “State Street Rehired by Calpers After Being Likened to ‘Thugs’” [Business Week]
- Vintage comic book covers on law themes are a regular Friday feature at Abnormal Use.
Posts Tagged ‘class actions’
August 4 roundup
- Burning Man, risk, and self-reliance [Claire Gordon, related]
- Jacob Sullum challenges Mark “tax-the-snacks” Bittman [Reason; related, Rick Esenberg] “Fat tax” would be hard to target, hard to enforce, disliked by voters [David Gratzer]
- “CSX claims racketeering in Pittsburgh law firm’s legal tactics” [Post-Gazette; earlier here, here, here, etc.] A different view: Max Kennerly.
- Complaints over new class-action law in Canada [Reuters]
- Minnesota preacher sues Rachel Maddow [TVNewser, Mother Jones]
- Does the new Texas loser-pays bill go far enough? [Kyle Baum, WLF, earlier]
- Tell us about it: “Why the Right to Criticize Lawyers is Vital” [Hans Bader, CEI]
Class action: I thought USA Today at my hotel was free
“A guest at a Hilton hotel in Santa Rosa who was upset that he was billed 75 cents for a newspaper he assumed was free has filed a federal class-action lawsuit against the hotel chain, saying he was deceived by a scheme that also hurts the environment.” [San Francisco Chronicle] More: Jeff Bercovici, Forbes.
Welcome Boston Globe, New Yorker readers
Alex Beam at the Boston Globe and Ian Crouch at the New Yorker write about the rise of lawsuits over unsatisfactory book contents, as with class actions filed over Greg Mortenson’s challenged memoirs and, before that, those of James Frey. Beam also brings up the outrageous lawsuit against former President Jimmy Carter and his publisher by someone who disagrees with the views Carter expressed in a book on the Mideast conflict. I’m quoted in both pieces (and at especially generous length in Beam’s). [Boston Globe, New Yorker; earlier here, here, etc.] (& WSJ Law Blog)
Is the Supreme Court too “individualist”?
Some academic critics say the Wal-Mart v. Dukes decision is the latest in a string of decisions in which the Court has insisted that litigants be accorded individual rather than group or batch consideration, even though “a more collectivist view,” as Connecticut lawprof Alexandra Lahav contends, would carry with it more “potential for social reform.” I take up this charge, and defend the Court, at Cato at Liberty. More: John Steele at Legal Ethics Forum, with a link to Samuel Issacharoff’s work.
Wal-Mart v. Dukes: some early analysis
Yesterday’s decision was the most momentous Supreme Court pronouncement on class actions in many years, addressing issues that go far beyond the case at hand. A sampling of early analysis:
* Some consideration of merits okay at certification stage. Paul Karlsgodt:
For more than 30 years, plaintiffs’ counsel and many courts have cited the Court’s opinion in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) as prohibiting any examination of the plaintiffs’ claims on the merits at the class certification phase. Consistent with the majority trend in the lower federal courts, the Supreme Court’s decision in Wal-Mart Stores, Inc. confirms that a court should consider and resolve any issues of fact that are necessary to determine whether one or more elements of Rule 23 are satisfied, regardless of whether those issues may overlap or be identical to one or more issues to be decided in ruling on the merits of the plaintiff’s claims.
In its day the Eisen case was a milestone in the 1960s-1970s liberalization of class action procedure, and seemed at the time to authorize the plaintiff’s side to dream up all the actions it wanted while the defense side could not block the actions at the certification stage by pointing out that they were bogus on the merits. Russell Jackson bluntly assesses the case’s fate: “Stick a fork in Eisen v. Carlisle & Jacquelin. It’s done!”
* Statistical proofs can’t be used to bypass individualized defenses. At least in the context of back pay discrimination claims, all nine justices agreed that the company had a right to assert individualized defenses based on the details of particular cases rather than simply hand over a giant damage check based on some formula derived from statistical testimony. In particular, the Court said:
Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge, or modify any substantive right,” a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.
Russell Jackson draws out implications for actions far removed from the employment context:
This means that third-party-payor claims and consumer fraud class actions will not be able to prove causation or reliance using statistical proof like that proposed and rejected in McLaughlin v. American Tobacco Co., 522 F.3d 215 (2d Cir. 2008) in order to facilitate class certification. This is BIG NEWS!!!
* Subjective managerial discretion under less suspicion. Returning to the employment context, a key issue in the case is whether plaintiffs could assert the requisite common question by challenging Wal-Mart’s delegation of decentralized discretion to store managers over many issues of pay and promotion. The Court majority refused to entertain such a challenge. Michael Fox:
The 5-4 opinion seems to pull the teeth from what I have always considered one of the more dangerous Supreme Court opinions, Watson v. Fort Worth Bank and Trust, a 1988 decision which seemed to permit a disparate impact case any time an employer’s promotion practices were subjective (which was every employer) and there was a disparate impact (almost every employer).
If Fox is right, this is a giant step in the right direction, and helps correct a pernicious tendency in modern employment law to pressure large employers into maintaining more centralized (and inevitably more bureaucratic) personnel policies.
Law, fairness, and Wal-Mart v. Dukes
I’ve got an instant analysis up at Cato at Liberty of the retailer’s big Supreme Court win today in Wal-Mart v. Dukes, the class action certification case. The Court ruled unanimously that the Ninth Circuit had jumped the gun in certifying the case as a class action, and 5-to-4 (Scalia writing) that plaintiffs had failed to assemble the evidence needed for certification. (& welcome Real Clear Politics “Best of the Blogs”, Atlantic Wire, Nicole Neily/Daily Caller, Jon Hyman, SCOTUSBlog)
More: Josh Blackman (with a comment on the Court’s recognition of the work of the late Richard Nagareda), Hans Bader, Jim Copland, John Steele Gordon. Spot-the-errors dept.: Dahlia Lithwick. Briefs and other resources on the case at SCOTUSBlog.
“Whoops! Plaintiff Hired Lawyer First, Then Bought Product”
Judges, the sticklers, still expect it to be done the other way round if you’re going to be the named plaintiff in a class action. This one was a claim of improper labeling filed against the Arizona iced tea company by attorney Michael Halbfish as well as the well-known New Jersey firm of Wilentz, Goldman & Spitzer. [Dan Fisher, Forbes; opinion in Coyle v. Hornell Brewing, PDF, courtesy Sean Wajert]
“There is money to be had when the right kind of book scandal comes along.”
“Three Cups of Tea” furor
It might eventuate in another deeply flawed book-reader class action, predicts Andrew Trask (earlier on James Frey “Million Little Pieces” suits).