In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Supreme Court held that Article III requires plaintiffs to establish a “concrete and particularized” injury-in-fact, “even in the context of a statutory violation.” Although the Supreme Court noted that “intangible” injuries, including the “violation of a procedural right” can be sufficient in some circumstances, the Supreme Court made clear that “a bare procedural violation, divorced from any concrete harm” to the plaintiff cannot satisfy the injury-in-fact requirement. Given the limited guidance provided by the Supreme Court, the circuit courts have taken differing approaches to what constitutes an injury-in-fact … Continue Reading
A few weeks ago, the Duke Law Center for Judicial Studies held a conference on class action settlements in San Diego, to discuss best practices in the wake of the likely Rule 23 amendments. Like all of its conferences, this one was held under the Chatham House Rule, which dictate that you can repeat the substance of anything said but not the identity of the speakers. The candor these rules foster is extraordinary, and lead to valuable discussions. So, with that in mind, here are the five most important things attendees took away from the conference.
- Plaintiff-oriented amendments
In what is rapidly becoming a trend, the Supreme Court denied certiorari in yet another class action (this time Martin v. Blessing, but one Justice wrote an accompanying opinion to signal where the Court may come out should the issue arise again.
Martin is one of several cases in which SDNY Judge Harold Baer imposed a requirement that class counsel representing a class in a large-scale settlement must include female and minority members on its team. (For more, see here and here.)
In this case, CCAF’s Ted Frank filed an appeal challenging the practice on Constitutional grounds. … Continue Reading
For many, the start of a new year is not just a time to look ahead, but also a nice landmark for looking back. So it is with class-action litigators. In the past month, there have been at least four different "Year End Reviews" of class actions. (I’m not counting my own, which are more top ten lists than anything else.)
So how do these various reviews stack up? Pretty well, actually.
So the small corner of the legal world that includes class action lawyers is up in arms this week because Jon King, formerly of Hausfeld LLP, has filed a wrongful termination complaint against his former employer, alleging that he was fired because he complained about ethical conflicts at the firm.
Hausfeld LLP is run by Michael Hausfeld, who has a larger than life reputation. And the complaint certainly contains its share of juicy allegations (Hausfeld LLP tried to spy on its landlord?), although, as Alison Frankel notes, portions of it read more as King’s attempt to … Continue Reading
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 the next four years, the pressure on Computer Associates mounted. Thirteen more complaints were filed, and the US Attorney’s office (EDNY) and SEC launched a joint investigation of the firm.
So Computer Associates decided to settle the case. After seven months of mediation with … Continue Reading
For the last three months, much of the law-firm world has been watching the slow-motion train wreck that was the dissolution of Dewey & LeBeouf. The legal blogosphere has written a lot about what the collapse means, and offered numerous theories about why Dewey failed so spectacularly in only a few months. Most focus on the income guarantees for a number of partners. Some go so far as to worry about criminal conduct. And it seems clear that there was at least some level of mismanagement. (As usual, Adam Smith, Esq. has an outstanding discussion of the many … Continue Reading
I’ve spent a lot of time over the last two years poking (as best I can) into the head of the entrepreneurial plaintiff’s lawyer. That is, the plaintiff’s lawyer that treats her lawsuits like business opportunities, keeping a diversified portfolio and working to maximize the profit from each opportunity. But there is another kind of lawyer that brings class actions, one often referred to as the "cause lawyer." Rather than working for profit, this group is motivated by a desire for social change. Cause lawyers are rarer in class action practice, but they’re not nonexistent. So, how does the … Continue Reading
For the last six or seven years, a growing academic literature has put forward the argument that the primary justification for class actions is not to compensate absent class members, but to deter corporate wrongdoing. That justification has formed the basis of a number of arguments, from Professor Fitzpatrick’s proposal that class action attorneys earn a 100% commission on their cases to Professor Lahav’s that the law should go a little easier on the class-action lawyer. It also underlies many of the fears that tightening the class-action rules may lead to rampant corporate misconduct.
Few practitioners or scholars have … Continue Reading
(I’m recovering from a cold, and on deadline for a book, so my apologies that this post is a little late and a little short.)
Today’s piece of "classic scholarship" was published in Public Choice in 2003. The authors, Jeffrey Haymond and James E. West, took a public-choice perspective on the class action, arguing that class actions are basically a wealth-transfer from corporations to plaintiffs’ lawyers. (In this case, it’s not something that class-action lawyers should take personally. Public choice theory tends to treat any movement of money as a "wealth transfer." Taxes are a wealth transfer. So are campaign … Continue Reading