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Lexblog TV did a brief interview-by-Skype with yours truly on Wal-Mart Stores, Inc. v. Dukes and AT&T Mobility v. Concepcion. If my (admittedly poor) embedding skills are working you should be able to see it below. If not, I've linked it here.
I'd call this one shameless self-promotion, but frankly, I'm fairly shamed. After watching it, I'm resolving to (1) just stare at the webcam the next time, and (2) get back to the gym.
This is a brief announcement that you can find a PDF copy of my article for the Cato Supreme Court Review at the following SSRN link.
Thanks very much to the Cato folks for hosting a great CLE last week, and for publishing this.
... that my entry in the SCOTUSblog symposium on class actions is up: "The Class Action is Alive and Kicking."
The entire symposium is well worth a read so far; some very interesting ideas from various lawyers and academics.
I have a post up at the OUPblog on the Non-Fiction Class Action (also known 'round these parts as the "literary class action"). It covers much of the same ground as previous posts here, but, like a good rug, I think pulls the whole thing together pretty well.
... to SCOTUSblog's symposium on the future of the class action, being held right now over at their site. The first entry, by Professor Scott Dodson, is already up. Judging from the distinguished invitees (present company excepted) and Professor Dodson's opening salvo, I'd say it's going to be a lively debate.
Just a brief announcement that the Cato Institute's Constitution Day (which they use as a kickoff for the publication of the year's Cato Supreme Court Review) is coming up on September 15. Among other topics, one panel will be discussing the effect of various business-related rulings, including Wal-Mart Stores, Inc. v. Dukes.
Leaving aside moderators like Ilya Shapiro and Walter Olson, the panels feature various legal luminaries like Orin Kerr, Jonathan Adler (this one, not this one), and Adam Liptak. (I'll be there too.)
Hope to see you there!
If you'll permit a little more shameless self-promotion, The Class Action Playbook is now available on Kindle.
So if you've been sitting in court, wishing you had a lightweight, searchable edition of a class-action treatise you could use to impress the judge (or your clients), wish no more.
It's been a busy week, so please accept another set of links to class-related news in lieu of a full-fledged post. Regular posting will resume next week.
Class-action lawyers are no strangers to conspiracy. It forms the basis of many antitrust claims, as well as providing plaintiffs with a way of leveraging evidence against a poorer defendant into a case against defendants with deeper pockets.
Defending conspiracy class actions can be frustrating: savvy plaintiffs will often use any evidence of parallel conduct as evidence of conspiracy, and any lack of evidence as evidence of a coverup. Or, they could until the Supreme Court rendered its decision in Bell Atlantic Co. v. Twombly (as well as its companion case, Ashcroft v. Iqbal.) These two cases have provoked plenty of discussion among legal bloggers and academics. But a two-year old working paper by Cass Sunstein and Adrian Vermuele on Conspiracy Theories provides some context to the Twombly/Iqbal debate.
Sunstein and Vermuele define a conspiracy theory as
an effort to explain some event or practice by reference to the machinations of powerful people, who have also managed to conceal their role.
(Emphasis in original.) The definition, as they concede, embraces conspiracy theories that have turned out to be true (like Watergate), as well as some that are purely benign (like Santa Claus). Sunstein and Vermuele are more interested in the false, harmful theories, which
have some distinctive features, above all because of their self-sealing quality; the very arguments that give rise to them, and account for their plausibility, make it more difficult for outsiders to rebut or even to question them.
(Emphasis added.) More specifically:
Those who accept such theories believe that the agents of the conspiracy have unusual powers, so that apparently contrary evidence can usually be shown to be a product of the conspiracy itself. Conspiracy theories display the characteristic features of a “degenerating research program” in which contrary evidence is explained away by adding epicycles and resisting falsification of key tenets.
(Emphasis added.) So what does this have to do with Twombly? In that case, the Supreme Court required the plaintiffs to plead a conspiracy that was "plausible," and to do so using specific facts. Doing so filters out the worst aspects of a self-sealing conspiracy theory. Because the plaintiff must plead specific facts, logical contradictions in her conspiracy theory will be clearer, and those can justify dismissal. So can pleading a conspiracy with no obvious benefit to the defendant.
* * *
Today marks the end of the first year of Class Action Countermeasures. From my perspective, this experiment in blogging has been a rousing success. The blog has has gained more readers than I expected, thanks to the generosity of the legal blogosphere. I've gotten to virtually "meet" a number of really interesting class-action bloggers. And I got to announce my first book, on class-action stratgegy. (It makes an excellent holiday gift!)
I'm hoping for another good year in 2011. The Supreme Court seems intent on keeping class-action practice interesting. And, despite one tragic loss, there is a thriving, diverse set of academics studying Rule 23. I also have a new project to keep me scouring SSRN and law review sites: I've contracted to co-author another book (with an old friend, Andrew Deguire). It has the working title Complex Negotiation Strategy: A Business and Law Perspective, and should be due out in late 2012/early 2013. The blog won't change, although I may venture more into some more general strategic discussions--including a few on negotiations--on Thursdays. (I will always bring it back to class-action practice, the blog title is there for a reason.)
Anyway, I wanted to thank those of you who've been reading so far. I hope you've found this even a tenth as much fun as I have.
I'm hardly the only one to note the untimely passing of Vanderbilt law proforessor Richard Nagareda this weekend, but in situations like these, one more voice rarely hurts. Nagareda was a brilliant scholar, who handled tough issues in mass torts and class actions with little apparent effort. I've relied on his work heavily on this blog, in other writing, and in briefing class-action issues in various cases.
Vanderbilt's statement is particularly appropriate:
Richard was a personal friend as well as an esteemed colleague, and those of us who were fortunate enough to know him and work with him for the past several years are devastated by his death,” Dean Chris Guthrie said. “The legal academy has lost a gifted scholar, and our students an extremely talented teacher. Our faculty members have lost a good friend and exemplary colleague, and his family a beloved husband, father and son.
I did not know Professor Nagareda personally. But over the last few years, I feel like I've come to know his work pretty intimately. He will be very missed. My sincere condolences to his family and friends.
Today, The Class Action Playbook is available for sale. Yesterday, I posed what is probably the biggest objection to buying the book: why would plaintiffs' lawyers be interested in what a pair of defense lawyers have to say bout class action? So, from the introduction:
Our best answer is that we hope the proof is in the reading. In writing this book, we have aimed to provide an unbiased analysis of the strategic choices involved for both sides in class actions. To that end, we have tried not to speculate about plaintiffs or their motives. Our discussions of the plaintiff’s side of class-action litigation rely heavily on personal interviews with plaintiff’s lawyers, or statements or writing by plaintiff’s lawyers. We also have tried to be explicit about our assumptions and our biases.
In the end, we have either succeeded in providing an unbiased analysis or we have not. If we have, that should be reason enough to trust our analysis. If we have not, our biases still may make for useful reading. Defendants should get a good sense of strategy from their fellow-traveler authors, and plaintiffs should get an extensive view of how the other side thinks.
And what does that "unbiased approach" look like?
There is a deep ideological divide between plaintiffs’ and defense lawyers. Given the high stakes and high visibility of aggregated litigation, it is not surprising that class actions are controversial. Advocates see class-action litigation as a way for large numbers of victimized “Davids” to collectively obtain justice from a misbehaving “Goliath” when individualized lawsuits are economically impractical. Opponents see class-action litigation as a means by which profit-motivated lawyers exploit the in terrorum nature of an aggregated case to extort windfall settlements from unpopular companies or industries. The primary reason for these different caricatures of class actions is that plaintiffs and defendants live in worlds that are structured differently. (There are arguably different personality types separating most plaintiffs’ lawyers from most defendants’ lawyers, which result in each side approaching the risks of litigation in different ways. But it is difficult to say whether the structures attract the personality types, or are the product of them.)
In this book, we refrain from judging the motives of either side. Rather than argue about whether class actions prompt greedy plaintiff’s lawyers to extort nuisance settlements from blameless defendants, or empower socially conscious plaintiff’s lawyers to take on unethical corporations, we assume that some lawsuits are closer to the former caricature, and some to the latter. From a strategic standpoint, it matters less which side is in the right than which side is making the right moves. We will talk about goals and incentives, but those discussions are general and descriptive. Generally, plaintiffs’ counsel wants to win the largest possible recovery for his clients at the minimum possible expense, while defense counsel wants to put the litigation behind his client with a minimum of expense and effort.
Ideally, that approach should sound familiar to readers of this blog.
Tomorrow, October 1, 2010, The Class Action Playbook goes on sale. So, today and tomorrow, I'm running run brief excerpts from the book's introduction to give readers an idea of the approach my coauthor Brian Anderson (the O'Melveny & Myers lawyer, not the Brewers' play-by-play announcer) and I have taken. Today, a brief discussion of the strategic approach to class actions:
[C]lass actions are different than other civil litigation. Any lawsuit requires a lawyer to think strategically along one dimension: Will the tactics he adopts help his client win the case on the merits? In class action litigation, because of the centrality of the debate over whether to certify a class, there is another dimension: Will these tactics help the lawyer obtain (or defeat) class certification? These two dimensions may conflict. Strategies that may help a litigant win a motion on the merits can undermine its arguments when debating certification, and vice versa.
What is strategy? The term means different things to different people. Some legal scholars define strategy as the accumulated choices made by a litigator —a possibly accurate description, but not very enlightening. Carl von Clausewitz, perhaps the premier military strategist in Western history, referred to strategy as “the use of engagements for the object of a war.” That definition is more useful when applied to litigation, although it is worth removing from a purely military context, and making a few of Clausewitz’s assumptions explicit. For our purposes, strategy is:
(1) a plan for action toward a goal;
(2) that comprises a series of actions over time; and
(3) that assumes other parties will oppose (or otherwise interfere with) the plan.This definition combines the hallmarks of both the classic and modern definitions of strategy. Clausewitz and similar strategists draw a distinction between strategy and tactics. Tactics are short-term plans for handling an immediate conflict. Strategy is the longer-term coordination of tactics. But the most important component of our definition of strategy is the one that Clausewitz only assumed. Strategy does not operate in a vacuum: It assumes the existence of other parties who will, at worst, actively oppose the strategy, and, at best, merely get in the way. Our definition of strategy includes this dynamic quality: Unlike a mere plan, a strategy aims to anticipate and respond to the actions of each side in class-action litigation.
The purpose of this book is to discuss the points at which class-action litigators—whether representing plaintiffs or defendants—must make strategic decisions. We identify those decision points, and then discuss the tactical choices available to each side. To the extent possible, we also try to evaluate the strength of various tactics available in each circumstance.
At the risk of sounding immodest, I'm quite proud of this book. It's garnered a few nice reviews already, and I'd encourage those interested in learning more about class-action litigation to check it out. That said, I'm not stupid. There's one big objection to address: why would anyone interested in bringing a successful class action read a book written by a pair of defense lawyers, including one who writes a blog called Class Action Countermeasures? It's a valid question, one that I'll answer in tomorrow's post.
Just a few miscellaneous notes that can't--by themselves--justify their own posts. I leave it to the reader to determine if there are any predominating common issues.
Come back tomorrow for the regular Tuesday entry.
Just a pair of reminders:
Please tune in at 10 AM today to the WLF's website for their webinar on Public Relations and Class Actions. (You can also email questions to interactive@wlf.org.)
And the official release date for The Class Action Playbook (which, among other things, discusses how plaintiffs and defendants use public relations in litigation) is October 1. But you can pre-order at Amazon now.
Two weeks from today, on September 17, 2010 at 10 AM, I'll be participating (along with Overlawyered's Walter Olson) in a webinar hosted by the Washington Legal Foundation titled: Legal PR, Trial Lawyers’ Style: How Plaintiffs Seek Advantage Outside of Court and Proactive Countermeasures for Defendants.
As the WLF describes it:
This interactive program examines the various communications and public relations strategies plaintiffs’ attorneys utilize in specific cases and to accentuate their role in civil justice, and provides strategies defendants can use to respond to trial lawyer PR and positively turn the “spin” to their advantage.
Please feel free to join us. It should be an interesting program.
If you'll pardon a brief bit of self promotion, The Class Action Playbook has a cover:
According to the Amazon page, the release date is October 11, 2010. Rest assured, you'll get updates here.
The copy edits have come back on The Class Action Playbook. Between those and actual billing work for clients, posting will be very light here for a week or so. However, normal posting should resume no later than Tuesday, May 9.
The manuscript for The Class Action Playbook (which I'm co-authoring for Oxford University Press with O'Melveny & Myers partner Brian Anderson) is due on Monday, March 1. As a result, the blog will be on hiatus this week.
In the meantime, please visit Paul Karlsgodt's Class Action Blawg or Russell Jackson's Consumer Class Actions and Mass Torts blog for more defense-oriented class-action coverage.
And check back here on Tuesday, March 2, when normal twice-a-week posting will resume.
Andrew Trask has participated in the defense of more than 100 class actions, involving all stages of the litigation process.More...