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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Category Archives: Motions Practice

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Can Class Counsel Use Discovery to Find Their Named Plaintiffs?

Posted in Motions Practice

Two couples, the Varsamises and the Giannopolouses, sued Iberia Air Lines for not properly compensating them after their international flights were delayed. Their counsel soon ran into plaintiff-related difficulties: the Giannopolouses were not typical of the class (and wound up accepting Iberia’s Rule 68 offer of judgment); the Varsamises’ claims were dismissed at the summary… Continue Reading

How Valuable Are Confidential Witnesses to Class Action Complaints?

Posted in Motions Practice

Securities class actions are interesting for many reasons. They involve large stakes, and so they also attract outsized personalities. They are also more strictly regulated than other class actions. And, as a result, they often lead to unusual tactics for class action litigation. For example, as Professor Mark Gideon points out in his article Recanting… Continue Reading

The Cost-Limiting Rule 68 Offer

Posted in Motions Practice

Rule 68 offers of judgment have been controversial in the class action context. Defendants will often use them in an attempt to moot the class claims of the named plaintiff: offering full relief first, and then moving to dismiss the case on jurisdictional grounds should the plaintiff decline the offer. But there is a second,… Continue Reading

Bifurcating Discovery to Reduce Costs

Posted in Discovery, Motions Practice

 It’s a tale as old as the Telephone Consumer Protection Act ("TCPA"): defendant Janssen Pharmaceuticals sent out a fax reporting on the reclassification of its drug Levaquin for insurance purposes. The plaintiff sued it for violating the TCPA, claiming the fax was an advertisement; Janssen responded that the content of the fax was informational. It… Continue Reading

Analyzing Securities Motions to Dismiss

Posted in Motions Practice, Scholarship

University of Idaho law professor Wendy Gerwick Couture has published an interesting working paper analyzing a data set of dismissal opinions from securities fraud class actions: Around the World of Securiteis Fraud in 80 Motions to Dismiss. The paper is a quick read, distilling her data into eight major observations. Among her most interesting findings: Scienter… Continue Reading

Consumer Fraud and Class Action Prohibitions – Lisk v Lumber One Wood Preserving LLC

Posted in Motions Practice

Robert Lisk of Alabama was building a fence. So he bought some fence lumber from Lumber One. Three years later (he alleged) he discovered that his lumber was rotting prematurely. He filed a class action against Lumber One, asserting, among other claims, that it had violated Alabama’s Deceptive Trade Practices Act (the ADTPA). Lumber One… Continue Reading

More Stringent Pleading for Class Actions?

Posted in Motions Practice

 In the several years since the Supreme Court decided Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, scholars and litigators have argued back and forth about the appropriate pleading standard for various kinds of lawsuits. One of the most vociferous parts of that debate is over whether class actions should be subject to increased pleading… Continue Reading