Plaintiff and defense lawyers tend to talk past each other a lot when discussing the legal theories underlying the class action. Plaintiffs talk of deterrence, and the need for easier certification requirements. Defendants talk about potential abuses of the device, and the need for due process. Plaintiffs prefer the "entity theory" of class actions. Defendants prefer the "joinder" theory. So to find academics on either side agreeing to anything substantive can be quite rare.

And that’s why it is notable that two law professors–from different ends of the spectrum–are now arguing that courts should look at class actions as trustsContinue Reading

 Since the Supreme Court issued its opinion in Smith v. Bayer Corp., comity has become a more important doctrine to the class action world. Bayer, as you may recall, said that the denial of certification does not have a preclusive effect, but suggested that, instead, courts might use the doctrine of comity to reach the same result when plaintiffs’ counsel file repetitive class actions in the hope of winning certification in just one.

In the Seventh Circuit, Judge Posner quickly dashed that hope, pointing out that comity is also not a preclusive doctrine, which meant that courts were … Continue Reading

Colorado citizen Landis Edwards bought the online quest game Elder Scrolls: Oblivion. He played it, a lot. In fact, he played it until it broke. According to Mr. Edwards, the game suffered from an animation defect that occurred after about 200 hours of gameplay.

So Mr. Edwards sued, on behalf of a class of Colorado residents who had also bought the game. Edwards v. Zenimax Media Inc., No. 12-cv-00411-WYD-KLM, 2012 U.S. Dist. LEXIS 137520 (D. Colo. Sep. 25, 2012). What Mr. Edwards didn’t mention was that his lawsuit was a copycat of another class action filed by the Continue Reading

 Last week, there were two appellate opinions, one from the Seventh Circuit and one from the Tenth, that are worth some attention. They’re worth discussing together as well, because while only one is really helpful for defendants, both discuss different conceptions of how to argue comity in class actions.

The first is Smentek v. Dart (7th Cir. 2012). Smentek was a class action filed on behalf of Illinois prisoners who had been denied dental care in violation of the due process clause. It was the third of its kind. How did that happen? In the first two class actions, various … Continue Reading