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 won a motion to dismiss, but the court allowed the plaintiff to file an amended complaint.

At that point, Janssen moved the court to bifurcate discovery. But where the typical motion to bifurcate asks for merits discovery after class-related discovery, Janssen asked for Continue Reading

Amber Pieloor filed a class action against her bank, the Gate City Bank of North Dakota. She accused the bank of re-sequencing a number of her financial transactions. Re-sequencing occurs when a bank records transactions in an order other than that in which they were received. Accusing banks of re-sequencing has become common; and it appears that some banks, in fact, have re-sequenced debits–charging the largest ones first before moving on to smaller debits–in order to maximize the number of overdraw fees they can charge.

There were two problems with Ms. Pieloor’s complaint. First, she was not arguing that … Continue Reading

There’s a fascinating strategic story buried deep within Snigdha Prakash’s book on the early Vioxx litigation, All the Justice Money Can Buy: Corporate Greed on Trial. It’s revealed in two passages, one toward the beginning of the book, one toward the end.

At the beginning of the book (and the trial it covers), New Jersey Superior Court Judge Carol Higbee [] proposes bifurcating several upcoming Vioxx trials into two phases: a general causation phase, followed by a damages phase. As Prakash reports:

The plaintiffs embraced the proposal. Trying several cases together would give them multiple opportunities to beat Merck

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 I’m going to try a new semi-regular feature, which is to provide summaries of some of the seminal cases on which class-action defendants frequently rely. Instead of focusing on the tactics that led to these rulings, I’ll be highlighting the most commonly-used passages, as well as some that may be wrongly overlooked.

We’ll start this out with In re Rhone-Poulenc Rorer (7th Cir. 1995). In re Rhone-Poulenc Rorer involved a particularly difficult set of facts: a proposed class of HIV-positive hemophiliacs sued a group of drug companies that manufactured blood solids. Because the companies did not know enough about … Continue Reading