Despite my best intentions, I have not been posting here as often as I would like in the past few months.  But that does not mean that I have not been reading.  So, in lieu of a long-winded analysis of some new tactic, trend, or article, please accept the following capsule reviews of three of the more interesting and practical class action articles from the last few months:

(1)  Alex Atticus Parkinson, Class Actions as Firms. Class action scholars have scratched their heads over how to characterize a Rule 23 class action suit for years.  Is it just specialized

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This past Supreme Court Term included several closely-watched cases.  One of the most studied was Tyson Foods v. Bouaphakeo, in which the Court identified at least one area of class action litigation where using statistical evidence instead of plaintiff-specific evidence might be allowed when determining class certification.

Since the Court issued its opinion, defendants have–as one would expect–worked hard to limit the Court’s holding to its specific facts.  (Not necessarily a difficult task, since the Court itself tied its result closely to the statute underlying the Tyson Foods plaintiffs’ claims.)  And, of course, plaintiffs and plaintiff-specific scholars have worked … Continue Reading

Many class-action commentators (including this blog) spend much of their time focusing on class action in federal courts: what caselaw controls, what arguments tend to work.  They spend far less time on what happens to those defendants who–for one reason or another–find themselves in state court.  There are sound reasons for this.  The fifty states have very different class action regimes, ranging from tracking the Federal Rules to prohibiting them entirely.  And, thanks to the Class Action Fairness Act, state court cases are either truly local controversies, or are smaller-stake cases worth less than $5 million.

That doesn’t mean … Continue Reading

Often, when a plaintiffs’ counsel seek to certify a class asserting a hard-to-prove financial injury, they will rely on a statistics or economics expert to demonstrate that there has been some kind of “common overcharge” for the product at issue.  This method is extremely common in antitrust class actions, but also shows up increasingly in various kinds of consumer class actions, including product liability class actions (“we would not have paid this much for a product with a defect”) and food-labeling class actions (“we would not have paid so much for Nutella if we’d known it was sugary”).
The “common Continue Reading
Class actions are not the only form of aggregate litigation. Multi-district litigation (“MDL”), the process by which large numbers of smaller lawsuits are consolidated before a single judge for pretrial purposes, without requiring any kind of certification process, has been around since 1968.  And, as courts have demanded more rigor for Rule 23 certification, MDLs have become more popular, particularly for mass torts.
With that increasing popularity comes increasing scrutiny.  To take just one example, a new paper on the proper role of the judge in MDL cases by professors Andrew Bradt and D. Theodore Rave has received press coverageContinue Reading
There are several practices in class action litigation that really only work if you squint real hard and accept that, as a practical if not a doctrinal matter, class actions are just “different” than other litigation.  These practices tend to go unchallenged until someone without a vested interest in the current system points out that, once you stop squinting like that, it’s pretty clear the practice in question doesn’t hold up to legal scrutiny.  These include the circular nature of damages in securities class actions, the basis for employing cy pres relief in class settlements, and now, thanks to a … Continue Reading

Rule 23(c)(4) has been been placed under a microscope in the past few years, largely because of the judicial response to the Supreme Court’s Comcast Corp. v. Behrend opinion, and the Rules Advisory Committee’s subsequent consideration of possible amendments to the Rule.

In the course of that attention, two articles have come out that illustrate the contours of the debate over the proper scope of issue certification. They are particularly instructive when you look at them together.

First, in 2015, Professor Joseph A. Seiner published an article on the use of 23(c)(4) in labor class actions specifically, titled Continue Reading

There’s lots of recent scholarship complaining about how pleading standards have gotten too stringent.  Professor Anne Ralph of Ohio State University Law School believes she’s found a solution.  In her article in the Yale Journal of Law & HumanitiesNot the Same Old Story: Using Narrative Theory to Understand and Overcome the Plausibility Pleading Standard, she outlines how plaintiffs might use the principles of narrative theory to meet the Twombly/Iqbal “plausibility” standard.
So, what exactly is “narrative theory”?  As Professor Ralph explains it:
Narrative theory answers the complex question of why narratives are persuasive. Narrative theory
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One of the things that makes legal academia so frustrating to practitioners (and possibly courts) is that much of it appears to focus on easily-researched questions, instead of the genuinely difficult questions that would yield some practical use.

Case in point: there is remarkably little scholarship that takes on the question of how litigators actually litigate cases. And that’s what makes Lynn Lopucki’s and Walter Weyrauch’s 2000 article A Theory of Legal Strategy so unique. Almost no other legal article has attempted to take on the question of how strategy fits into the development of the common law. … Continue Reading

Plaintiffs’ lawyer-turned-professor Morris Ratner has published a new article on making litigation costs a profit center for class action plaintiffs. You may remember he wrote about this issue before with Professor William Rubinstein.  This new article, titled Class Counsel as Litigation Funders, makes it clearer that he isn’t talking so much about allowing plaintiffs’ counsel to charge a markup on photocopies as he is trying to establish parity between the lawyers who fund a case by fronting the costs and the lawyers who work a case. (Remember, in larger cases, many lawyers are required by co-counsel to contribute to Continue Reading