In response to governmental recommendations, stay-at-home orders, and shelter-in-place orders, colleges and universities transitioned to distance learning to keep their students, staff, visitors, and communities safe and healthy.  Nonetheless, the plaintiffs’ bar has viewed this as an opportunity to pounce and even advertise to sue colleges and universities nationwide.  Indeed, plaintiffs’ attorneys have filed over 60 class action lawsuits against higher education institutions and many, many more are likely to come.

A review of many of these class actions provides a roadmap to the strategy and what is likely to be asserted against your institution if it has not already … Continue Reading

 My apologies for not posting last week; things have been very busy on a number of fronts, and that meant that Countermeasures suffered. It shouldn’t happen again for a while.

One of those things has been the publication of the 2014 edition of the Class Action Playbook

In addition to the new, stylish beige cover, and the inclusion of the most recent Supreme Court Term’s major cases, there are a few other things that you’ll notice are different about this edition of the Playbook. Namely:

  • * The Playbook is now published by LexisNexis/Bender. For more details, see
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I have a few smaller news items to announce. So, if you’d like to learn about some longer-form content similar to the kinds of things I write about here, read on. If not, feel free to come back next Tuesday for some more class-action oriented content.

New book. Betting the Company: Complex Negotiation Strategies for Law & Business (co-authored with Andrew DeGuire) now has both a cover and a release date from Oxford University Press. Brandeis business Professor Ben Gomes-Casseres says it’s

"Invaluable! Full of ready-to-use advice, rooted in both theory and practice."

And Southwestern University Law professor … Continue Reading

 Shown here with its prior incarnation.

On Saturday, my author’s copy of the Class Action Playbook, Second Edition arrived.  Writing this was a significant project for me in late 2011/early 2012, so I’m chuffed to see it finally out. 

But wait, I hear you say.  Didn’t you just publish the original edition recently?  Why do a new edition so soon?

Good question.  From the preface of the 2d Edition:

It has been only two years since we published the first edition of the Class Action Playbook, and we have to admit, while we had thought that we might eventually publish a second

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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

 Class-action lawyers are no strangers to conspiracy. It forms the basis of many antitrust claims, as well as providing plaintiffs with a way of leveraging evidence against a poorer defendant into a case against defendants with deeper pockets.

Defending conspiracy class actions can be frustrating: savvy plaintiffs will often use any evidence of parallel conduct as evidence of conspiracy, and any lack of evidence as evidence of a coverup. Or, they could until the Supreme Court rendered its decision in Bell Atlantic Co. v. Twombly (as well as its companion case, Ashcroft v. Iqbal.) These two cases have … Continue Reading

Earlier this week, the Seventh Circuit, in an opinion by Judge Richard Posner, granted an injunction to Sears under the All Writs Act to block a class action that had been filed in federal court in California. The opinion, Thorogood v. Sears, Roebuck & Co., is noteworthy for a couple of reasons. First, it extends relief under the All Writs Act to defendants facing copycat class actions in other jurisdictions. Second, it does so in response to a plaintiff’s attempt to leverage a settlement using the threat of class-action discovery.

Steven Thorogood, the nominal plaintiff here, … Continue Reading

The Class Action Playbook, on sale today!

Today, The Class Action Playbook is available for sale.  Yesterday, I posed what is probably the biggest objection to buying the book: why would plaintiffs’ lawyers be interested in what a pair of defense lawyers have to say bout class action?  So, from the introduction:

Our best answer is that we hope the proof is in the reading. In writing this book, we have aimed to provide an unbiased analysis of the strategic choices involved for both sides in class actions. To that end, we have tried not to speculate about plaintiffs or their motives. Our discussions

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Tomorrow, October 1, 2010, The Class Action Playbook goes on sale.    So, today and tomorrow, I’m running run brief excerpts from the book’s introduction to give readers an idea of the approach my coauthor Brian Anderson (the O’Melveny & Myers lawyer, not the Brewers’ play-by-play announcer) and I have taken.  Today, a brief discussion of the strategic approach to class actions:

[C]lass actions are different than other civil litigation. Any lawsuit requires a lawyer to think strategically along one dimension: Will the tactics he adopts help his client win the case on the merits? In class

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