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Earlier this month, I wrote about the class-action provisions of the new Fairness in Class Action Litigation Act, which has passed out of the Judiciary Committee and is headed for a floor vote in the House.  At the end of that post, I promised a further explanation of the mass action provisions as well.  These provisions are aimed primarily at multi-district litigation (MDL), which is rapidly becoming a substitute for class proceedings when dealing with numerous personal-injury claims.

Section 4 – would amend the federal jurisdiction statute, allowing the court to sever claims made by an in-state plaintiff if … Continue Reading

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The House of Representatives has reintroduced the Fairness in Class Action Litigation Act (FICALA), and it’s more substantial than the 2015 version.  The previous version, you may recall, attempted to reinforce the typicality requirement to minimize the number of “no injury” class actions brought.  It cleared the House, but died in the Senate.  It appears that House Republicans sense an opportunity with the new administration to enact more sweeping class reforms.
I testified in support of the 2015 Act, and having read the new bill, I like it even more. I think it lives up to its … Continue Reading

One of the things that makes legal academia so frustrating to practitioners (and possibly courts) is that much of it appears to focus on easily-researched questions, instead of the genuinely difficult questions that would yield some practical use.

Case in point: there is remarkably little scholarship that takes on the question of how litigators actually litigate cases. And that’s what makes Lynn Lopucki’s and Walter Weyrauch’s 2000 article A Theory of Legal Strategy so unique. Almost no other legal article has attempted to take on the question of how strategy fits into the development of the common law. … Continue Reading

Earlier this year, it became clear that the Advisory Committee on Civil Rules is considering possible amendments to Rule 23. As Tony Lathrop’s post summarizes, the “front burner” issues at the moment largely concern class action settlements, focusing in on possible limits to cy pres relief and greater clarity on what Rule 23(e)’s “fair, reasonable, and adequate” criteria mean.

I think these are great ideas for possible amendments.  I’m certainly on record about the possible problems that arise from cy pres relief, and I’ve also written about the proliferation of settlement standards that arise from Rule 23(e)’s vague … Continue Reading

 As it turns out, Chicago poet and journalist Carl Sandburg is one of–if not the–first person to be credited with an old piece of advice for lawyers:

If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.

As well as sourcing Sandburg’s quote, in his article for the journal American Politics Research, Law, Fact, and the Threat of Reversal From Above, University of Alabama professor Joseph L. Smith uses the latest in computer content … Continue Reading

 When the Rules Committee amended Rule 23 in 1998 to allow for interlocutory appeals, it made them discretionary. The result, as I’ve written before, is that class action litigators have had to make these appeals attractive to appellate courts in much the same way that appellate litigators must prepare certiorari petitions. 

But, as it turns out, there is one way for plaintiffs at least to ensure that an appellate court hears a denial of certification.

In Berger v. Home Depot USA, Inc., No. 11-55592, 2014 U.S. App. LEXIS 2059 (9th Cir. Feb. 3, 2014), the plaintiff had … Continue Reading

Thurgood Marhshall was, of course, a Justice of the Supreme Court. But before that, he was an absolutely incredible litigator; he was the primary strategist behind the NAACP’s litigation campaign to desegregate public institutions. In the wake of his victory in Brown v. Board of Education, he published The Rise & Collapse of the "White Democratic Primary," 26 J. Negro Educ. 249 (1957). 

The "white primary system" was a system of rules and tacit agreements in Jim Crow South that effectively disenfranchised African-Americans. At the time, the Democratic Party held a virtual monopoly on public office in … Continue Reading

This week, we ask the question: what happens to a class action after the defendants win an appeal?

The case posing this question is Glaberson v. Comcast Corp., No. 03-6604, 2013 U.S. Dist. LEXIS 160892 (E.D. Pa. Nov. 12, 2013). And the facts should be familiar: Glaberson is the current name for the case the Supreme Court heard as Comcast Corp. v. Behrend. 

After the Supreme Court reversed Behrend, the parties began litigating the question of what happened to the case next. The plaintiffs argued that they should have the opportunity to file another motion for class … Continue Reading

Earlier this year, Professor Arthur Miller published a summary of developments in civil procedure over the last several years, entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure.

Professor Miller is one of the giants of civil procedure. He may or may not have been the hard-nosed Professor Perini in Scott Turow’s memoir One-L. He was, for a select generation of us Bostonians, the host of legal affairs show Miller’s Court. 

But he’s also the head of Milberg LLP’s appellate practice. And he wears his plaintiff-side … Continue Reading

 Longtime readers may remember that last February I had the pleasure of participating in the DePaul Law Review’s symposium on Class Action Rollback.  The article from that symposium will be appearing shortly in the DePaul Law Review, and a very late draft of it is now available at SSRN. Without further comment, here is the SSRN abstract for the article:

Most discussions of legal doctrine assume that litigants will react to a change in doctrine, but not that they will try to influence that doctrine further by adopting new arguments or finding loopholes in the doctrine itself.

… Continue Reading