We’re in the middle of the holiday season, and that means that folks are making (or, for those who celebrate Hannukkah, checking off) their wish lists. This October, the Chamber of Commerce’s Institute for Legal Reform compiled one of their own in their report A Roadmap for Reform: Lessons from Eight Years of the Class Action Reform Act. Why pay attention to this report? As class action defense counsel, don’t we already know what we’d like?
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.
Robert Klonoff, Dean of the Lewis & Clark Law School, has produced a new article, The Decline of Class Actions (forthcoming from the Washington University Law Review), that provides a much-appreciated overview of recent developments in class action law from a plaintiff’s perspective. (Disclosure: Dean Klonoff provided a very nice blurb for the Class Action Playbook.) Regular readers of this blog know that I am actually a big fan of plaintiffs’ perspectives: I think understanding them is crucial to a conscientious and seals defense of class action litigation. And while there is much to like in … 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
My apologies for posting late this week; I’m suffering from a little jet lag. I spent yesterday in Virginia at the annual conference for the American College of Court Business Judges, where John Beisner and I were presenting a number of developments in class action litigation. Today I’m England, and by tonight, I will be in the Hague for the 5th Annual Conference on the Globalization of Class Actions and Mass Litigation, where Paul Karlsgodt (of ClassActionBlawg) and I will be eagerly taking notes.
Before John and I presented on Monday, we were treated to a panel discussing … Continue Reading
Skadden attorneys John Beisner, Jessica Miller, and Jordan M. Schwartz have drafted a white paper for the Institute for Legal Reform titled “Cy Pres: A Not So Charitable Contribution to Class Action Practice.” Relying heavily on Martin Redish’s critique of cy pres recovery, they trace cy pres relief from its “pre-Christian” origins as a means of distributing estates to its most recent abuses. Their final recommendation is interesting, and fairly moderate:
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in order to mitigate the legal and ethical concerns associated with cy pres awards, any application of the cy pres doctrine—even in the
What is grand strategy? It’s a term that’s usually thrown around in military, security, and foreign policy circles. As the military historian Liddell Hart defined it in his classic book Strategy:
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[T]he role of grand strategy – higher strategy – is to co-ordinate and direct all the resources of a nation, or band of nations, towards the attainment of the political object of the war – the goal defined by fundamental policy.
while the horizons of strategy is bounded by the war, grand strategy looks beyond the war to the subsequent peace. It should not only combine
Securities class actions have often drawn criticisms from both defense counsel and their ideological allies. One of the more interesting criticisms has been that securities class actions may be nothing more than shell games moving money around in such a way that the only parties to benefit are the lawyers. The theory goes like this: when a plaintiff files a securities class action, she seeks compensation for a drop in the value of her shares. The firm, faced with a bet-the-company lawsuit, settles (with a payout to the plaintiffs’ lawyers). The settlement, on a prorated basis, goes to the plaintiff. … Continue Reading
Class-action defense guru John Beisner has published a new study on third-party litigation financing: “Selling Lawsuits, Buying Trouble: Third-Party Litigation Funding in the United States” (US Chamber Institute for Legal Reform, October 2009). Since it’s published by the US Chamber of Commerce, this is an advocacy piece, and one aimed more at policymakers than courts. (Beisner reaches one empirical conclusion: that allowing widespread third-party funding in Australia led to an increase in class-action filings there.)
While the policy arguments are certainly not dull, I’m more interested in the strategic implications of the piece for class-action lawyers.
And … Continue Reading