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

Tag Archives: preclusion

The Class Action as Trust – Two Views

Posted in Scholarship

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… Continue Reading

Adequacy in non-class actions

Posted in Scholarship

The adequacy requirement of Rule 23(a)(4) tends to be under-studied and under-enforced.  That’s why it is always a pleasure to read new work on adequacy. Now, Professor Elizabeth Burch has published her latest discussion of the adequacy requirement: Adequately Representing Groups. Professor Burch focuses on the standard that should apply when attacking adequacy after the… Continue Reading

Adequacy of Counsel, Attorneys’ Fees, and Malpractice – Wyly v Weiss

Posted in Lawyers

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… Continue Reading

Two Views of Comity in Class Actions

Posted in Certification

 Last week, there were two appellate opinions, one from the Seventh Circuit and one from the Tenth, that are worth some attention. They’re worth discussing together as well, because while only one is really helpful for defendants, both discuss different conceptions of how to argue comity in class actions. The first is Smentek v. Dart (7th… Continue Reading

The Ten Most Significant Class Action Cases of 2011

Posted in Certification

 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… Continue Reading

Embedded Aggregation

Posted in Settlement

 As both plaintiffs and defendants get more sophisticated, the problem of how to litigate mass torts grows more complicated. In particular, both litigants and courts struggle with the question of when a verdict should have preclusive effect in mass tort litigation, and when it should not. Before he passed away last year, Vanderbilt law professor Richard… Continue Reading

Bonus Case – Brown v. RJ Reynolds

Posted in Certification

Late last year, the Eleventh Circuit ruled on the preclusive effect of a state-certified class action in federal court.  The Federalist Society very kindly asked me to comment on it for their online journal Engage.  It turned out to be a really interesting project, because what started out as an opinion about preclusion turned out… Continue Reading