Class Action Countermeasures : Class Action Lawyers & Attorneys : McGuireWoods Law Firm : Complex Litigation, Mass Torts

Yesterday, I received my author's copy of Betting the Company: Complex Negotiation Strategies for Law & Business, which I wrote with old friend Andrew DeGuire of Johnson Controls, Inc. We've been informed that Amazon is now shipping orders (a month earlier than expected).

So today's post is a brief excerpt, to let you all know what we've been working on for the last eighteen months.

Throughout this book, we use “complex negotiations” to mean negotiations with (or among) organizations. Why? Because nego- tiations between organizations have a number of characteristics that may place them on the complex end of any spectrum. There are six characteristics of complex negotiations, each of which presents itself most visibly in negotiations between organizations.

 

* Complex negotiations amplify the effect of nonrational judgments. Individual negotiations involve nonrational components and strong personalities. For various reasons we will explain in greater depth, these nonrational judgments are more frequent (and more severe) in organizations than among individuals.
* Complex negotiations also involve multiple parties. Even if the negotiation is only one organization negotiating with another, the negotiation will likely be handled by teams, and those teams will represent constituents that must be mollified.
* Complex negotiations involve multiple issues. Negotiations over a single issue depend on the amount of bargaining power each party has. By contrast, negotiations over multiple issues provide greater opportunities for agreement (where concessions on one issue can be traded against gains on other issues) or deadlock (by providing additional areas for distrust or disagreement).
* Complex negotiations take place over an extended period of time. When negotiations take place over a course of months or years, the parties develop relationships that affect the nature of the exchange.
* Complex negotiations are heavily regulated. They occur against a background of complex rules and laws. They may also occur against a background of organizational rules.
* Complex negotiations are intercultural. Each organization has its own culture. And negotiations that cross international boundaries may involve different national cultures as well.

Of course, many of these characteristics occur even in “simple” negotiations. It is possible for negotiations between individuals to involve nonrational components, third parties, multiple issues, or culture clashes. However, as explained in greater detail later in this book, because of the ways in which members of groups interact with each other, these issues are more likely to arise in the context of negotiations between organizations.

One central irony we will discuss throughout this book is that organizations are extremely helpful with complex issues: they allow us to throw more resources at a problem; they check individual personality quirks that might lead us astray; and they allow us to add expertise on new issues when necessary. But at the same time as they solve some challenges, organizations intensify others: organizations multiply the number of people who must be satisfied with the outcome; they lengthen the time required to consummate a deal, allowing new events to intervene; they can even amplify undesirable personality traits and entrench them as corporate culture.
In short, complex negotiations mean lots of moving parts, which in turn means lots of distractions and lots of chances to knock a negotiating team off its original plan. So one of the things this book is about is how to maintain strategic focus when events are exploding around you.

While I hope the connection with class-action practice will be self-evident, this book represented a departure from the doctrinal analysis so many of us lawyers spend so much time on. I'm proud of the result, and hope some of you will find it useful.

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I have a few smaller news items to announce. So, if you'd like to learn about some longer-form content similar to the kinds of things I write about here, read on. If not, feel free to come back next Tuesday for some more class-action oriented content.

New book. Betting the Company: Complex Negotiation Strategies for Law & Business (co-authored with Andrew DeGuire) now has both a cover and a release date from Oxford University Press. Brandeis business Professor Ben Gomes-Casseres says it's

"Invaluable! Full of ready-to-use advice, rooted in both theory and practice."

And Southwestern University Law professor Byron Stier says it 

"provide[s] a comprehensive but accessible survey of the myriad issues and extensive academic commentary on negotiation, while offering practical advice for negotiators looking for immediately useful tips. "

Like with the Playbook, if you're a journalist or a blogger and would like a review copy, please feel free to get in touch with me.

Old book, new publisher. LexisNexis has bought the Class Action Playbook from OUP. In the short term, that means that the Playbook will soon be available in a variety of electronic formats. In the longer term, Lexis has some other, exciting plans. Stay tuned.

Strafford CLE. On April 16, I'll be participating in a webinar for Strafford CLE on the Amgen decision. The opinion has some interesting implications for both securities class actions and class actions more generally. I look forward to seeing you there.
 

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In my January 15 blog posting entitled Rule 23(g) Standard For Attorney Conduct, I incorrectly characterized the Seventh Circuit Court of Appeals' description of the alleged misconduct of Bock & Hatch, class counsel in Creative Montessori v. Ashford Gear. In fact, the District Court on remand, ultimately determined that any alleged misconduct by the firm was "not so significant as to cast serious doubt on counsels’ ability to represent the class loyally," and approved the firm as class counsel. I apologize to Bock & Hatch for this error. 

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I am currently facing down a very large and looming publishing deadline, as well as your average class action defense attorney's caseload.  

Posting should resume next week.  Meanwhile, thank you very much for your patience.   

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On Saturday, my author's copy of the Class Action Playbook, Second Edition arrived.  Writing this was a significant project for me in late 2011/early 2012, so I'm chuffed to see it finally out. 

But wait, I hear you say.  Didn't you just publish the original edition recently?  Why do a new edition so soon?

Good question.  From the preface of the 2d Edition:

It has been only two years since we published the first edition of the Class Action Playbook, and we have to admit, while we had thought that we might eventually publish a second edition, we had not expected to do so so soon. But—from the class-action litigator’s standpoint—these have been a remarkably eventful two years.

The law has changed significantly. The Supreme Court has decided an unparalleled six cases that affected class-action law, a very large number in such a short time. These have included Wal-Mart Stores, Inc. v. Dukes, which redefined commonality and provided definitive guidance about when a party may invoke Rule 23(b)(2); AT&T Mobility LLC v. Concepcion, which requires parties to submit to agreed arbitration, even if the plaintiff would prefer to bring a class action; Erica P. John Fund, Inc. v. Halliburton Company, which held that a securities plaintiff need not prove loss causation in order to secure class certification; Matrixx Initiatives, Inc. v. Siracusano, which defined the extent to which a securities plaintiff must plead scienter or materiality; Morrison v. National Australia Bank Ltd., which held that a securities plaintiff with no connection to the United States may not avail itself of the U.S. court system; and Shady Grove Orthopedic Associates v. Allstate Insurance Company, which held that state substantive rules prohibiting class actions do not trump Rule 23. In keeping with the stated mission of this book to dis- cuss strategy rather than caselaw, we have not included extensive discussions of the Supreme Court’s new cases. What we have done instead is to revise our discussions of various strategies wherever we saw these new cases having a significant effect. Some of those effects were expected, but some were not.

We also now have more “official” commentary on class actions. The American Law Institute published its statement of the PRINCIPLES OF AGGREGATE LITIGATION, which adds a further, highly persuasive source on aggregated litigation. As a result, it made sense to provide citations to this important new source of law, and to note where it supports plaintiffs’ or defendants’ arguments.

The Second Edition of the Class Action Playbook goes on sale September 14, 2012; you can pre-order it at Amazon.  I hope you'll check it out.  

Also, both the Class Action Playbook and this blog now have pages on Facebook.  Feel free to check them out (and like them).  

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The nice folks at E-Commerce Law Reports have just published an article by yours truly on using settlements with state attorneys general or other government agencies to reduce one's class action liability.  You can find it here.  

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First of all, let me apologize for missing Tuesday's post: a combination of travel, jet lag, and one or two minor crises at home were just distracting enough that nothing went up. Since I'm still feeling the effects of each, today's post will be pretty light. Normal service should resume next week.

(And while I don't usually get into personal details on this blog, I will also note that I have a baby due sometime in the next month, so we'll see just how long that "normal service" will last.)

So, with that said, let me point you to a working paper that went up in the last few weeks on SSRN. Authored by Santa Clara Law Professor Eric Goldman, it's called "The Irony of Privacy Class Action Litigation."

Goldman's central argument is a simple one:

Most privacy advocates prefer business practices that require consumers to “opt-in” rather than “opt-out,” i.e., consumers must affirmatively grant permission to a business’ collection or use of their data rather than take action to prevent such collection or use. From the perspective of privacy advocates, opt-outs misinterpret consumers’ silence as consent, and they make consumers act to preserve the status quo—which, due to consumer acquiescence to default settings, means that consumer opt-out rates are low.

Yet, class action lawsuits are typically opt-out, not opt-in, with those same downsides. Typically, if the class is certified, class members are automatically bound by the lawsuit’s outcome unless they opt-out. Thus, just like opt-outs in the commercial setting, consumers must affirmatively act if they do not agree with the lawsuit; and like commercial opt-outs, the class action mechanism treats silence as consent.

(Internal footnotes omitted, emphasis added.)

As a paper, it's a little slight (though as a blog post, it would be fantastic). For an article, it probably just needs a little more development of the privacy class action, and probably a discussion of the tensions between classwide discovery and privacy litigation.  (After all, do you want your data being turned over to plaintiffs' lawyers?)  In fact, I'm a little surprised that Goldman didn't reference Jeff Kosseff's great student note on this topic.

Depth aside, Goldman's produced an excellent quick look at one of the central tensions facing plaintiffs' lawyers who bring privacy class actions. Anyone defending a privacy class action would be well-advised to check it out.

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 Back in December, I bemoaned the fact that there wasn't more good class action scholarship, and I offered a number of topics that I thought class-action scholars could look into.  In January, I offered some more suggestions about ways to improve class action scholarship.  It appears I wasn't the only one thinking along the lines of improving academic coverage of issues in complex litigation, because I just received the following email:

Re: Announcing the Stanford Journal of Complex Litigation!

Dear Authors:

We are proud to announce the founding of the Stanford Journal of Complex Litigation (SJCL). Beginning in the 2012-2013 academic year, SJCL will publish articles and essays that are timely and make a significant, original contribution to the field of complex litigation. We are currently seeking article and essay manuscripts on a range of topics including the rules of civil procedure, aggregate litigation, mass torts, jurisdictional disputes, complex litigation reform, actions by private attorneys general, and transnational litigation.
We hope you will consider publishing with SJCL for a few reasons:
· Specialization: SJCL is the first student-edited journal devoted exclusively to topics relating to complex litigation. Publishing with SJCL will ensure your important contribution will be read within the broader field it is engaging. SJCL will serve as a forum for dialogue on complex litigation issues. We also expect that because SJCL is devoted exclusively to complex litigation, it will quickly become a source of guidance for courts and practitioners.
· Expedited publishing: Because we are currently accepting submissions for the first volume of SJCL, we will be able to publish many of the submissions we accept in our fall issue. That means you can expect your article with SJCL to be in print faster than almost any other journal. There will be no need to update through a lengthy editing process.
· Modified peer review: SJCL will follow a modified peer-review system. Meaning, after a first-level review by SJCL’s editorial staff, any submission that is a candidate for publication will be submitted to at least one scholar in the field of complex litigation or civil procedure who will review the piece. We will take any unanimous decision from our peer reviewers as a binding decision on publication. This will ensure that SJCL is publishing significant contributions to this field.
· “Light edit”: Our editorial policy is to afford substantial deference to authors, in both tone and substance. As a result, all articles must be well written, well cited, and completely argued at the time of submissions. SJCL will only edit to ensure readability and Bluebook compliance, which means that the editing process will be faster but also requires that authors vouch for the accuracy of their citations.
· Outreach: We are committed to generating interest in the articles published with SJCL. That is why we will actively promote all scholarship we publish at symposia and on the blogosphere. We are also committing to distributing hundreds of copies of our first issue to grow our readership base.
· Volume 1: There is something to be said for publishing in the very first volume of a journal. We hope you appreciate this significance and decide to submit your manuscript to SJCL.

We review and accept articles year-round on a rolling basis. SJCL strongly prefers electronic submissions through the ExpressO submission system, which can be found online at http://www.law.bepress.com/expresso. You may also e-mail your manuscript tosjcl_submissions@lists.stanford.edu. We do not accept submissions in hard copy.
SJCL is also seeking faculty with expertise in areas such as civil procedure or complex litigation to serve as reviewers. If you are interested, please contact sjcl_editors@lists.stanford.edu.

A website with more information is forthcoming. For the time being please refer to our Stanford Law School site:http://www.law.stanford.edu/publications/journals/sjcl/.

Please contact us with any questions. We look forward to working with you.

Regards,

Nick Landsman-Roos & Matt Woleske
Editors-in-Chief, Stanford Journal of Complex Litigation
sjcl_editors@lists.stanford.edu

I'd say that there are enough good research topics in complex litigation to support a devoted journal. Now we have one. So if you've been mulling over some issue specific to complex litigation, this is the ideal time to write it up and submit it.

And I'd like to wish Nick and Matt the best of luck in launching their new journal.

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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.

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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.  

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... 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.

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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.  

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 ... 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.  

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 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!

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If not, I have a post up on the excellent OUPblog about it, pitched more toward the educated layperson.   

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 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.  

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 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.  

• Dukes discussion - On Tuesday, the Washington Legal Foundation hosted a panel on the upcoming Wal-Mart v. Dukes argument.  Panelists included Mike Murphy, Rachael Weinfeld, and yours truly.  It was an interesting discussion, especially Mike's take on how the Supreme Court would rule, and Rachael's discussion of the importance of the Daubert inquiry to class certification.  
• Dukes discussion II - Today, the American Constitution Society is hosting a panel on the same topic.  It's moderated by Michael Selmi, and panelists will include Marcia Greenberger, Adam Klein, Suzette Malveaux, and me.  It should also be a very interesting discussion.
• Lessons from Google Books - On Tuesday afternoon, the Southern District of New York refused to approve the Google Books settlement.  Glenn Lammi of the WLF has taken the opportunity to--like Judge Alsup--draw some lessons about what its opinion means for best settlement practices.
• More on circularity - Remember the circularity problem?  Securities class actions take money from a shareholder-owned corporation and return it to shareholders, minus attorneys' fees.  Why doesn't this critique apply to company-to-company litigation?  Amanda Rose and Richard Squire have a theory.  
• One shameless self-plug: recent searches that have led to this site include  "adequacy of counsel" "collective vs. class action conflict," "environmental class action," "motion to strike class allegations," "class acton interrogatories," "named plaintiff deposition," and "All Writs Act."  As well as on this blog, you can information about those subjects in the Class Action Playbook by me and Brian Anderson.  (Sections 2.8, 3.1.2, 3.1.6, 4.2.5, 4.5.4.1, 4.5.4.4, and 9.1.3 respectively.)

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 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.

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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.

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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.  

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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.  

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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.

• The WLF webinar on "Legal PR, Trial Lawyers’ Style: How They Seek Advantage Outside of Court and Proactive Countermeasures for Defendants," featuring yours truly and Cato Institute Fellow Walter Olson has been archived here.  
• I just received my author's copy of the Class Action Playbook over the weekend, which means that it will be released very shortly (October 1!).  The back cover contains blurbs from, among others, law professor Robert Klonoff and plaintiffs' lawyer Garrett Wotkyns.  If you are a blogger or legal reporter who would like a copy for review purposes, please feel free to contact me.
• Fellow class-action blogger J. Russell Jackson (of Jackson on Consumer Class Actions and Mass Torts) has a great writeup of the recent Weiner v. Snapple case (which should be especially useful for those briefing superiority) at the WLF website.
• Also, since they've said everything I could have: here's a sampling of blog entries on the Second Circuit's recent Zyprexia decision.  Bottom line: it is always worth challenging plaintiffs' use of aggregate proof in non-securities class actions.  

Come back tomorrow for the regular Tuesday entry.  

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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.

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 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.  

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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.  

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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.

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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.  

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