At this point, I’m well aware that I tend to sound like an old crank when reviewing class action scholarship; much of it repeats the same old stuff, predicts the imminent demise of the class action in its current form, and looks at the same Supreme Court cases instead of digging into where the real action happens. And that is why I am happy to report that this year, there were quite a few articles that did take different approaches to various problems in class actions. Yes, we still had some of the same Supreme Court rehashes, but even some … Continue Reading

2013 did not offer the blockbuster docket in front of the Supreme Court that 2011 did, but that didn’t stop the Court from issuing a number of opinions whose effects will be felt for some time to come. In addition, a number of other courts took bold steps to either support or constrain class action practice. The key trends coming out of 2013: watch out for predominance, and watch out for tricky settlement provisions. Also, pay attention to the complaint; key flaws can still lurk in there.

(1) Comcast Corp v. Behrend (Supreme Court).  This case was … Continue Reading

Many observers of class actions (including me) have promoted the use of mediators in negotiating class action settlements. Properly used, a mediator can not only help the sides reach agreement, but also document that the process underlying the settlement was fair, reasonable, and adequate.

Hamline Law School Professor James Coben has published an article taking a different view. In Creating a 21st Century Oligarchy: Judicial Abdication to Class Action Mediators, he worries that relying too much on mediators ignores the interests of absent class members just as much as potentially "collusive" settlements.

Coben’s article is … Continue Reading

Fordham law professor Howard M. Erichson has a new paper up at SSRN on "The Problem of Settlement Class Actions."  Based on dicta in the Supreme Court’s opinion in Amchem Products, Inc. v. Windsor, courts have taken to certifying classes for settlement purposes only without worrying about "manageability," that is, whether the case could actually be tried as a class action.

As a result, settlement class actions have long posed strategic dilemmas for plaintiffs and defendants alike. Among them:

  • How much can the defendant concede without compromising its ability to defend the case if the settlement falls
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Today’s case, Critchfield Physical Therapy, P.C. v. Techhealth, Inc., 2013 U.S. Dist. LEXIS 13440 (E.D. Mo. Feb. 1, 2013), is a short one, but it contains a valuable lesson.

Critchfield filed a class action against Techhealth. The basis of the lawsuit was not important enough for the court to mention in this opinion. What was important was that a mediation conference was scheduled in the case. A representative of Techhealth attended, as did its counsel. But on the plaintiff’s side, only plaintiffs’ counsel showed up. This is not an unusual arrangement in a class action: I have attended several … Continue Reading

As one might expect from a holiday week, last week produced few class action opinions.  On the other hand, the Economist had an excellent article on the peculiarities of bargaining with Somali pirates.  Based on two working papers in the past year, it examines "how two parties bargain when neither has good information available."  The money quote:

They found that Somali pirates pretend to be more sophisticated than they are, whereas shipowners pretend to be poorer. Nowadays both sides have an interest in a speedy resolution, since a prolonged negotiation incurs costs. For the shipowner, the cargo

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 So, you may have noticed that posting has been slightly sporadic lately. There have been two big reasons for this: first, my daughter was born at the end of June, and blogging must sometimes give way to taking care of her; second, I have just delivered the manuscript for Betting the Company: Complex Negotiation Strategies for Law & Business (co-written with my old friend Andrew DeGuire) to my publisher. It should be out sometime in 2013, but the crimp it put in my schedule occurred now.

So, to try to get back to my old two-a-week schedule, let me … Continue Reading

One of the unusual things about being an expat for a prolonged period of time is watching US news from the outside. Even though I have access to any number of American news outlets, being in a place where I am not surrounded by people who all share the same obsession with the 2012 Presidential race does afford some interesting perspective. And there is no question that, even from this moderate distance, American politics does look unusually polarized right now: it appears that large part of the electorate disagree so fundamentally on basic principles that agreement on anything seems unlikely.… Continue Reading

 This week, one of the few sandwiched between Queen Elizabeth’s Diamond Jubilee and the yearly recurrence of the Fourth of July, this expat lawyer finds his thoughts turning to the founding of the United States. In particular, what a royal mess it might have been. After all, as a document, the constitution has lasted 225 years, and–some bumps aside–still works pretty well.

And it was a document that was produced by committee, a committee of 55 members. And, as it turns out, few members of that committee were present for the entire Convention. Instead, many of them … Continue Reading

Sometimes, I run across articles while researching that don’t justify a full-fledged post, but that do provide a few helpful nuggets. This week, I’m having just that issue. So here are three somewhat interesting ideas, with which you can do what you will.

How to manage your negotiating team.  There’s not a lot groundbreaking in the Harvard Business School reprint, but the tips are still helpful. Most helpful one for lawyers? Give everyone on your team a role, even that new associate. At best, it facilitates group loyalty and exploits previously untapped strengths.  At the very least, it … Continue Reading