2013 did not offer the blockbuster docket in front of the Supreme Court that 2011 did, but that didn’t stop the Court from issuing a number of opinions whose effects will be felt for some time to come. In addition, a number of other courts took bold steps to either support or constrain class action practice. The key trends coming out of 2013: watch out for predominance, and watch out for tricky settlement provisions. Also, pay attention to the complaint; key flaws can still lurk in there.
Class action practice provides plaintiffs with some odd pleading incentives. Two that cause continual problems are the need to keep things vague (in order to emphasize commonalities over any variations that may arise from more specific details) and the need to frame one’s complaint as broadly as possible to maximize the potential recovery in settlement negotiations.
As it turns out, it is in fact possible to plead a complaint that is too broad and too vague. In fact, the Eastern District of Louisiana entertained a case like this a few months ago, in Duvio v. Viking Range Corp., 2013 … Continue Reading
Since the Supreme Court issued its opinion in Smith v. Bayer Corp., comity has become a more important doctrine to the class action world. Bayer, as you may recall, said that the denial of certification does not have a preclusive effect, but suggested that, instead, courts might use the doctrine of comity to reach the same result when plaintiffs’ counsel file repetitive class actions in the hope of winning certification in just one.
Colorado citizen Landis Edwards bought the online quest game Elder Scrolls: Oblivion. He played it, a lot. In fact, he played it until it broke. According to Mr. Edwards, the game suffered from an animation defect that occurred after about 200 hours of gameplay.
So Mr. Edwards sued, on behalf of a class of Colorado residents who had also bought the game. Edwards v. Zenimax Media Inc., No. 12-cv-00411-WYD-KLM, 2012 U.S. Dist. LEXIS 137520 (D. Colo. Sep. 25, 2012). What Mr. Edwards didn’t mention was that his lawsuit was a copycat of another class action filed by the … Continue Reading
Back in 1990, Kenneth Carter was in an automobile accident with an underinsured motorist, one serious enough to exhaust the other party’s limited bodily injury coverage. Carter’s policy allowed him to stack coverage, meaning he probably had $150,000 coming to him. But his insurer didn’t tell him that, instead allowing him to believe that he only had $50,000 in coverage. So Carter sued his Allstate, his insurer, and made a settlement demand for $250,000. (His counsel represented a few other claimants with similar allegations, and made individual settlement demands of up to $6 million for them.) Allstate tried to remove … Continue Reading
At its height, the mass-tort litigation against Merck for its drug Vioxx received a great deal of press attention. And, when Merck settled with most of the plaintiffs, its decision to only settle with attorneys who were willing to resolve their entire inventory of Vioxx cases generated controversy among the legal commentariat.
Last week, one set of plaintiffs’ lawyers placed an unusual coda onto the Vioxx litigation. They filed a class action challenging the Vioxx settlement, Weeks v. Merck & Co., 2012 U.S. Dist. LEXIS 78954 (E.D. La. Jun. 6, 2012).. (They did so on behalf of … Continue Reading
Earlier today, I had the distinct pleasure of presenting at the CLE International Class Action conference in Los Angeles with an old friend of mine, plaintiff’s lawyer Garrett Wotkyns of Schneider Wallace. The topic was The Gauntlet: Early Challenges to Class Certification, which regular readers will know is a topic near and dear to my heart. (Cue joke about defense lawyers’ hearts.)
The slides, which contain only a few in-jokes and as many obscure Clint Eastwood references as we could cram in, are available for download here.
Many thanks to the nice folks at CLE International for … Continue Reading
This week’s case is the first known follow-up to the Sixth Circuit’s Pilgrim opinion, Rikos v. Proctor & Gamble Co., 2012 U.S. Dist. LEXIS 25104, (S.D. Ohio 2012). In Rikos, the plaintiff sued Proctor & Gamble for allegedly misrepresenting the ability of its product Align to aid in digestion. The plaintiff filed in the Southern District of California, and asserted claims on behalf of a nationwide class.
Proctor & Gamble promptly transferred the case to the Southern District of Ohio. Then it moved to dismiss. (The court granted the motion to dismiss claims for injunctive relief, denied it for … 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
Last week, the Sixth Circuit affirmed a trial court’s decision striking class allegations where a proposed nationwide class would necessarily invoke the laws of fifty different jurisdictions. (Russell Jackson has an excellent writeup of the opinion here.) There is no question the opinion is a useful one for defendants. And, since it’s the first appellate opinion on a motion to strike in decades, it may be time for an overview of where the motion to strike class allegations stands today.
In the past year, a large number of motions to strike have been filed. (I count at least 25 … Continue Reading