First of all, let me apologize for missing Tuesday’s post: a combination of travel, jet lag, and one or two minor crises at home were just distracting enough that nothing went up. Since I’m still feeling the effects of each, today’s post will be pretty light. Normal service should resume next week.

(And while I don’t usually get into personal details on this blog, I will also note that I have a baby due sometime in the next month, so we’ll see just how long that "normal service" will last.)

So, with that said, let me point you to a … 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

 I’ve written before about the uses to which defense counsel can put a well-taken named plaintiff deposition. And, once again, an opinion has come along that showcases just how important the named plaintiff deposition is as a weapon to defeat class certification.

The case, Burns v. Bayer Corp., 2012 U.S. Dist. LEXIS 33183 (S.D. Ill. Mar. 13, 2012), is part of the Yaz multi-district litigation (which previously yielded an extremely useful motion to strike opinion). Yaz is an oral contraceptive, and the FDA has also approved it for use in treating acne and premenstrual dysphoric disorder. It … Continue Reading

As you may know, most bloggers have some kind of service that provides a statistical analysis of their site. In addition to telling us how many of you visit, and what you read, and whether you come back, these services also tell us what searches bring (some of) you here. And, over the last year and change, there are certain searches that have recurred enough that I consider them "frequently asked questions." Here are four, with brief answers:

What is the definition of "bet the company" litigation? This is–at least to me–a surprisingly common question. My own … Continue Reading

Before we dive in today, I just want to apologize for not getting this post up yesterday. I’m in Boston, visiting my brand-new nephew, and so I’ve been a little preoccupied. So today’s post will be a quick one.

Every defense counsel in class actions has faced having to negotiate a protective order with the other side. Plaintiffs, who often wish to release documents to the press for maximum PR leverage, or to share documents with other attorneys to bank favors, will often push for free document-sharing provisions. Defendants, by contrast, often want to make sure that their proprietary … Continue Reading

Defendants face a dilemma when dealing with absent class members. On the one hand, they often have valuable information about a case, either as sources for variations that would defeat certification or as trial witnesses. On the other hand, plaintiffs will vigorously oppose any contact with absent class members, even if it is for a proper business purpose (like, say, responding to customer inquiries), as an improper attempt to either influence or harass members of the proposed class. So how should defendants handle taking discovery of absent class members?

Carefully. Today’s case, Antoninetti v. Chipotle, Inc., 2011 U.S. … Continue Reading

I’ve talked before about the problem of circularity in securities class actions. Briefly put:

[A] securities class action takes money from the firm, and pays it to the shareholders, minus costs and attorneys’ fees. The hitch is that the firm is owned by the shareholders, which means that the attorneys have just taken money from the shareholders’ property and handed it to them directly, while taking a one-third cut for themselves.

At the time, I pointed out that while the circularity critique may suggest that securities class-acton plaintiffs are inadequate the moment they bring a lawsuit, courts were unlikely … Continue Reading

 Confidential Witness Confidential

The confidential witness is the bane of the securities defendant’s existence. While there may be some legitimate reasons to keep a witness confidential, the words "Confidential Witness #1" can also hide problems with the plaintiffs’ case, like sloppy research or outright misrepresentation.

How do we know this is the case? Well, many defendants have "Confidential" horror stories, but more importantly, these problems are sometimes revealed in the case proper. Case in point:City of Livonia Employees’ Retirement System v. Boeing Co.  As the Northern District of Illinois puts it in its opinion, the case reads like an … Continue Reading

E-discovery: a term that has evolved from an interesting sidenote to something that can strike fear into the hearts of the most hardened defense lawyers. The Wall Street Journal Law Blog covered this issue a few weeks ago, pointing to a recent study by several King & Spalding lawyers published in the Duke Law Journal: Sanctions for E-discovery Violations: By the Numbers. The article is an excellent source for cases involving e-discovery sanctions. While it doesn’t specifically mention class actions, there is no question it applies to this field of litigation. Discovery is often a one-sided affair in Continue Reading

Plaintiffs in securities class actions often use "confidential witnesses" in their complaints to substantiate various allegations. The practice makes some sense at the complaint stage: it allows the plaintiff to plead fraud and loss causation with the specificity required by the PSLRA, without exposing potential witnesses to backlash from their employer should the case never proceed past the motion-to-dismiss stage. But once the motion to dismiss has been decided, is there any need for a plaintiff to keep confidential witnesses confidential?

In In re Netbank Securities Litigation, 259 F.R.D. 656 (N.D. Ga. 2009), the plaintiff alleged … Continue Reading