In what is rapidly becoming a trend, the Supreme Court denied certiorari in yet another class action (this time Martin v. Blessing, but one Justice wrote an accompanying opinion to signal where the Court may come out should the issue arise again.

Martin is one of several cases in which SDNY Judge Harold Baer imposed a requirement that class counsel representing a class in a large-scale settlement must include female and minority members on its team. (For more, see here and here.)

In this case, CCAF’s Ted Frank filed an appeal challenging the practice on Constitutional grounds. … Continue Reading

Plaintiff and defense lawyers tend to talk past each other a lot when discussing the legal theories underlying the class action. Plaintiffs talk of deterrence, and the need for easier certification requirements. Defendants talk about potential abuses of the device, and the need for due process. Plaintiffs prefer the "entity theory" of class actions. Defendants prefer the "joinder" theory. So to find academics on either side agreeing to anything substantive can be quite rare.

And that’s why it is notable that two law professors–from different ends of the spectrum–are now arguing that courts should look at class actions as trustsContinue Reading

 Going through bankruptcy is traumatic enough; doing so and still having your credit report still list your discharged debts as "delinquent" is enough to drive some people to litigation. And that’s how several credit agencies found themselves on the receiving end of a series of Fair Credit Reporting Act class actions.

In this case, the defendants settled, offering the plaintiffs injunctive relief and some pro-rated monetary relief, as well as paying attorneys fees and some incentive awards for the named plaintiffs.

The settlement drew objections, however. The trial court approved the settlement nonetheless, but on appeal, in Radcliffe v. Experian Continue Reading

In 1998, the class action plaintiffs’ firm Milberg Weiss filed sued Computer Associates for violating the federal securities laws by lying about its revenues in order to increase its stock price. In a perfectly unremarkable development, it was appointed co-lead counsel of the consolidated class. (Various firms had filed a total of eleven complaints.) Over the next four years, the pressure on Computer Associates mounted. Thirteen more complaints were filed, and the US Attorney’s office (EDNY) and SEC launched a joint investigation of the firm.

So Computer Associates decided to settle the case. After seven months of mediation with … Continue Reading

Northside Chiropractic doctor Michael Dubick made the mistake of–after a cold call from salesmen–buying advertising space in Yellowbook. He negotiated for a certain kind of advertisement, but the published ad looked nothing like what he had asked for, and lacked even basic information about his business (like his name). So he sued, and added class allegations to his complaint. Yellowbook also listed his advertisement under "Massages – Non-Therapeutic," a possible crack about chiropractors at best, and solicitation of a whole different kind of client at worst.

So Dr. Dubick filed a class action against Yellowbook, and moved for certification. (… Continue Reading

 This was a busy year for class-action jurisprudence. Clearly, most of the Supreme Court cases had some effect on class action practice. But the district and appellate courts also rendered a host of rulings this year that significantly affect class-action practice. Despite what a number of academics and plaintiffs’ lawyers have claimed, the class action is not dead.  That said, it’s probably true, to quote plaintiff’s lawyer Daniel Girard, that while the "death of the class action" is overstated, the "Golden Age of the private attorney-general" is over. There were so many interesting opinions in the past year, … Continue Reading

Regular readers know that I usually average two posts a week here, discussing a case on Tuesday, and offering a think piece on Thursday. But a case came down the other day that justifies switching up the schedule. The case is Creative Montessori Learning Centers v. Ashford Gear LLC, and the issue is under what circumstances a court may find class counsel inadequate to represent a class.

Creative Montessori is a Telephone Consumer Protection Act case; the TCPA prohibits the sending of "junk faxes" or "blast faxes" to recipients without their consent. Because it allows for damages of $500 … Continue Reading

Today’s piece of "classic" scholarship is by Linda Mullenix, Professor of Law at the University of Texas. Published in 2004, Taking Adequacy Seriously: The Inadequate Assessment of Adequacy in Litigation & Settlement Classes, 57 Vand. L. Rev. 1687 (2004), took an in-depth look at the routine under-enforcement of Rule 23(a)(4)’s adequacy requirement.

To put the case simply, courts pay lip service to the concept of adequate representation but fail to robustly engage in any meaningful inquiry to establish the existence of such adequate representation. For judges, the adequacy inquiry usually is the least-rigorously examined requirement for

Continue Reading

 Over the last ten days, Judge Baer issued a followup order in the Gildan Activewear case and gave an interview to the New York Law Journal discussing his reasoning. The order–which found both plaintiffs’ firms to be adequate, and stressed that it was not criticizing their hiring practices–was pretty much a non-event. But Judge Baer’s interview–in which he reaffirmed his belief that he has both the power and the responsibility to review a firm’s diversity in discharging his Rule 23(f) function, has led to additional blog commentary. My own opinion on whether he can do so (probably yes) and whether … Continue Reading

 A number of courts have held that Rule 23(a)(4)’s adequacy requirement mandates two inquiries:

(1) whether there are irreconcilable conflicts of interest between the class representative and the absent class members, and
(2) willingness and ability of the representative to take an active role in and control the litigation and to protect the interests of absentees.

The law on what constitutes a conflict of interest is well-developed. But what does "willingness and ability" mean? The Eighth Circuit recently shed some light on the question in the course of deciding an appeal in a civil-rights lawsuit, Rattray v. Woodbury County.… Continue Reading