After watching an infomercial, Harry Wiedenbeck bought a "comprehensive" medical health insurance plan for himself and his wife. When the insurer subsequently denied a claim based on his wife’s hospitalization, Mr. Wiedenbeck filed a class action alleging fraud and bad faith on behalf of all Wisconsin residents who had bought the plan.

The subsequent case, described in Wiedenbeck v. Cinergy Health, Inc., No. 12-cv-508-wmc, 2013 U.S. Dist. LEXIS 134672 (W.D. Wis. Sep. 20, 2013), contained a number of procedural machinations, including the use of an offer of judgment. But I’d like to focus on the class certification debate, because … Continue Reading

 Last week, the District of Montana ruled on the defendants’ motion to dismiss in Pfau v. Mortenson (the infamous "Three Cups of Tea" class action). The lawsuit alleged that author Greg Mortenson had made up aspects of his biography in writing and marketing his bestselling memoir Three Cups of Tea.  The plaintiffs–a pair of Montana lawmakers–specifically claimed that Mortenson and his publisher had engaged in a criminal enterprise (a term of art for RICO claims) to market his book as nonfiction despite the falsehoods it allegedly contained.

When the complaint was filed, I wrote about how … Continue Reading

To get lawsuits into court and past preliminary motions, plaintiffs often have to argue some pretty stupid things. They have to argue that they did not know coffee is hot or that they trusted Google Maps directions over their own eyes. Sometimes, to get a class action that far, plaintiffs’ lawyers have to argue that entire populations that dumb, such as when they argue that people did not know that Nutella is fattening. What’s a defense lawyer to do in situations like this?

The Third Circuit has offered some help. The lawsuit, McNair v. Synapse Group, Inc. … Continue Reading

To start, a brief apology.  A combination of a virus and a heavy schedule this week means that this entry will be brief.  

I’m just going to point to this news item, which details a class action that’s been filed against former President Jimmy Carter’s book Peace Not Apartheid

[A] group of Carter’s detractors have filed suit against the 39th President of the United States, alleging that the book was falsely marketed as “the absolute truth” on the subject of peace negotiations between Palestine and Israel.

The action says that Carter’s book contains “demonstrable falsehoods, omissions,

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 In Basic, Inc. v. Levinson, the Supreme Court recognized a rebuttable presumption of fraud on the market for securities-fraud cases. That presumption allowed for certification of a number of securities class actions. Plaintiffs since have taken that presumption and tried to apply it to various other sets of facts, most notably tobacco (although that attempt was ultimately unsuccessful) and drug marketing (also unsuccessfully). But the fact that class-action plaintiffs keep arguing for this presumption means that it’s important for defense counsel to understand the theory underlying it.

So let’s look at the actual Basic case. … Continue Reading