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

 Houston law professor D. Theodore Rave’s new paper Settlement, ADR, & Class Action Superiority (forthcoming from the Journal of Tort Law) contains an interesting insight about class action practice: when you get right down to it, there is little functional difference between (1) a class action settlement, (2) an AT&T "gold-plated" arbitration clause, and (3) a customer service action like a voluntary recall.  Or, as Professor Rave puts it:

Functionally, what is happening with class settlements, voluntary compensation schemes, and mandatory arbitration clauses in form contracts is very similar. Private actors are effectively designing a system of

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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.

(1) Comcast Corp v. Behrend (Supreme Court).  This case was … Continue Reading

 Settlement opinions are often not that interesting. The vast majority of them are by-the-numbers approvals of proposed settlements that offer little insight about how Rule 23 works. This is especially true of preliminary approval opinions. But every once in a while, a court refuses even the preliminary approval of a settlement.  When that happens, class action lawyers can usually learn a few things about how not to settle a case.

Better v. YRC Worldwide Inc., No. 11-2072-KHV, 2013 U.S. Dist. LEXIS 163569 (D. Kan. Nov. 18, 2013), is such a case. It was a proposed settlement of a … Continue Reading

In her new article Symmetry & Class Action Litigation, 60 UCLA L. Rev. 1494 (2013), Connecticut law professor Alexandra Lahav has spotted what appears to be an interesting inconsistency in the way modern courts treat class action: despite case law to the contrary, courts often treat certification of a litigation class more rigorously than certification of a settlement class. One can think of any number of reasons for this: courts favor settlements of large disputes; they like clean dockets; there are fewer possible parties to appeal. Professor Lahav believes that it reveals a pro-defendant bias in the courts:

The

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Yesterday, I received my author’s copy of Betting the Company: Complex Negotiation Strategies for Law & Business, which I wrote with old friend Andrew DeGuire of Johnson Controls, Inc. We’ve been informed that Amazon is now shipping orders (a month earlier than expected).

So today’s post is a brief excerpt, to let you all know what we’ve been working on for the last eighteen months.

Throughout this book, we use “complex negotiations” to mean negotiations with (or among) organizations. Why? Because nego- tiations between organizations have a number of characteristics that may place them on the complex end of

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 Two plaintiffs’ firms filed nearly identical class actions against a dietary supplement company, alleging that one of its weight loss supplement didn’t work. The cases were filed within two weeks of each other, one in federal court (Branca v. Iovate Health Sciences USA, Inc.), and one in California state court (Garcia v. Iovate Health Sciences USA, Inc.). Shortly thereafter, the defendant filed a motion to stay in the federal case, because it had settled the case in state court.

So far, this was all just run-of-the-mill procedural maneuvering. So why make it the subject of … Continue Reading

Back in January, NERA Economic Consulting published yet another interesting paper, entitled Dynamic Litigation Analysis: Predicting Securities Class Action Settlements as a Case Evolves, by Dr. Ronald Miller.

Using the data NERA has collected on securities class actions over 20 years, Dr. Miller comes to some interesting conclusions about motions practice in securities cases. Most notably:

 

  • Few securities class actions are resolved at the summary judgment stage.
  • The filing of a motion to dismiss has little effect on settlement value of securities cases, but the granting of dismissal can reduce the value of a settlement by up
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 … from November’s cases so far:

  • CAFA has not changed the rule that a counterclaim cannot confer federal jurisdiction.  Resurgent Capital Servs., LP v. Thomason, 2012 U.S. Dist. LEXIS (W.D. Mo. Nov. 5, 2012) (remanding case).
  • Courts get suspicious when parties widen the scope of a class action during settlement negotiations.  Smith v. Levine Leichtman Capital Partners, Inc., 2012 U.S. Dist. LEXIS 163672 (N.D. Cal. Nov. 15, 2012) (denying approval of settlement).
  • If you’re going to settle a class action, you still need a workable class definition.  Supler v. FKAACS, 2012 U.S. Dist. LEXIS 159210
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