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A Review of Year-End Reviews

Posted in Lawyers

For many, the start of a new year is not just a time to look ahead, but also a nice landmark for looking back. So it is with class-action litigators. In the past month, there have been at least four different "Year End Reviews" of class actions. (I’m not counting my own, which are more top ten lists than anything else.)

So how do these various reviews stack up? Pretty well, actually.

Baker Hostetler’s 2012 Class Action Year End Review
Where to find it: Here.
What’s to like: It’s a comprehensive look at class actions in 2012; and one of the authors is Paul Karlsgodt, the guy who brings you the Class Action Blawg.  It also has a very useful breakdown of recent class actions by topic and by specific industry.
What’s to complain about:  Not much.  It gets the law largely right.  The most I might quibble with would be some of the editorial choices, but those are small potatoes indeed.
Most interesting finding: Watch out for privacy and LIBOR-related class actions.

"The continued proliferation of privacy class action litigation is widely expected in 2013, as the courts continue to grapple with the interpretation of both new and old privacy laws to rapidly changing technologies. Another potential trend to keep an eye on is the development of class action litigation relating to the LIBOR rate-fixing scandal, which has the potential to impact trillions of dollars of financial transactions worldwide and could be a catalyst to the accelerated expansion of class and collective action procedures in other parts of the world."

Skadden’s Insights/Global Litigation
Where to find it: Here.
What’s to like: A brief, incisive review of class action practice by defense guru John Beisner and his partner Jessica Miller. (Also, a products liability summary by former class action blogger Russell Jackson.)
What’s to complain about: It’s pretty brief; less than 2.5 pages. But it does pack a lot into them.
Most interesting finding: Watch out for single-state class actions.

"While nationwide classes based on state law are still moribund, a number of traditionally conservative courts around the country have embraced smaller, single-state consumer fraud and employment discrimination class actions, suggesting that 2013 may bring more class actions."

Seyfarth Shaw’s Ninth Annual Workplace Class Actions
Where to find it: Here
What’s to like: Comprehensive, detailed, data-driven analysis of awards and settlements in workplace class actions.
What’s to complain about: Doctrinally, it’s a little vague on occasion. And you have to order it, rather than just being able to download it. (I received only the first two chapters for review purposes.)
Most interesting finding: Dukes’s big influence was in enabling a divide-and-conquer strategy for employment defendants.

"Wal-Mart influenced settlement strategies in workplace class actions in a profound way. Employers settled fewer employment discrimination class actions than at any time over the past decade and at a fraction of the levels as in 2006 to 2011. This reflected the impact of Wal-Mart, and the notion that difficulties in certifying nationwide, massive class actions impaired the ability of the plaintiffs’ bar to convert their case filings into blockbuster settlements. It also manifested the ability of defendants to dismantle large class cases, or to devalue them for settlement purposes. Simply stated, Wal-Mart aided employers to defeat, fracture, and/or devalue employment discrimination class actions, and resulted in fewer settlements at lower amounts."

(Internal footnote omitted.)

Cornerstone Research: Securities Class Action Filings 2012 Year in Review
Where to find it: Here
What’s to like: Data, data, and more data. The class action media has already had a field day picking this apart, because there’s just so much in it.
What’s to complain about: Nothing, really. It does what it says on the tin, which is give data on filings, rather than settlements or decisions.
Most interesting finding: Merger class actions are declining.

"Compared with the past two years, federal filings associated with merger and acquisition (M&A) transactions have fallen sharply. Thirteen cases were filed in 2012 compared with 40 and 43 in 2010 and 2011, respectively. Evidence indicates these actions are now being pursued almost exclusively in state courts after the unusual jump in federal M&A filings in 2010 and 2011."

I understand how this probably looks: in the past month, I’ve complained that there’s very little interesting going on in class action scholarship, and I’ve posted a "biting criticism" (as one correspondent put it) of the latest overview from two of the most respected names in class action academia. And then I turn around and praise three year end reviews by defense firms, and one by a consulting firm. But these are currently the facts on the ground. University academics–perhaps because they don’t have much skin in the game except as "class action experts" in litigation–have shown in the past two years that they care mostly about Supreme Court cases and the "demise of the class action" that will result after the next wrong decision. Practicing lawyers, on the other hand, care about actually winning cases and serving clients. To do their jobs, they need good information; to get clients, they have to share that information. At this point, that apparently means that I’d rather be reading another firm’s take on the last year than one by a law professor, no matter how distinguished.