Securities class actions are interesting for many reasons. They involve large stakes, and so they also attract outsized personalities. They are also more strictly regulated than other class actions. And, as a result, they often lead to unusual tactics for class action litigation. For example, as Professor Mark Gideon points out in his article Recanting Confidential Witnesses in Securities Litigation, 45 Loy. U. Chi. L.J. 575 (2014), because of the heightened pleading requirements they face, securities plaintiffs rely increasingly on confidential witnesses to prop up their complaints, particularly when pleading scienter.

Professor Gideon expresses concern about those courts Continue Reading

April Fool’s–a day that one cannot trust what one reads on the Web, is fortunately over. So, please rest assured that Rutgers law student Brandon Riley’s note We’re Cramped as Hell, and We Won’t Take It Anymore: Plotting a Class Action Disability Claim on Behalf of the Very Tall against Air Carriers for a Failure to Accomodate, 44 Rutgers L.J. 123 (2013), is an actual publication with an actual argument. Riley plots out how one might bring a class action on behalf of very tall people (defined, via statistical analysis, as anyone taller than six foot three) under Rule … Continue Reading

Loyola of Los Angeles professor Georgene Vairo wrote a piece called What Goes Around, Comes Around: From the Rector of Barkway to Knowles for the Review of Litigation.

Professor Vairo’s piece makes two overall arguments: (1) the class action is a political, rather than procedural, problem; and (2) the recurring debates over use of the device will continue to "come around" until the Supreme Court decisively resolves the question of how preclusive a class action is supposed to be. The piece aims to be a comprehensive historical overview of the class action, from its medieval roots to the current … Continue Reading

 As it turns out, Chicago poet and journalist Carl Sandburg is one of–if not the–first person to be credited with an old piece of advice for lawyers:

If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.

As well as sourcing Sandburg’s quote, in his article for the journal American Politics Research, Law, Fact, and the Threat of Reversal From Above, University of Alabama professor Joseph L. Smith uses the latest in computer content … Continue Reading

One of the perennial questions at class certification (at least under Rule 23(b)(3)) is whether the class is superior to other forms of adjudication. Defendants will often raise individual lawsuits as a viable alternative, but, in cases involving heavily regulated industries, they may also invoke the possibility of allowing a regulatory agency to address the problem as well. Stanford professor David Freeman Engstrom has pursued that argument to its logical extreme in his epic (97-page) Yale Law Journal article Agencies as Gatekeepers. (PDF here.)

Professor Engstrom’s primary focus is on whether any of the various scholarly proposals to give … Continue Reading

Professor Suja Thomas (of Oddball Cases fame) has jumped into the debate over proportionality in discovery with a post over at Prawfsblawg.  The debate, prompted by the upcoming amendments to FRCP 26, asks whether a party should be able to withhold discovery on the grounds that it is disproportionate to the needs (and the amount in controversy) of a given case.

Class action defendants have an obvious incentive to support the proportionality amendment. After all, between e-discovery and the asymmetric discovery that exists in class actions, defendants can face immense pressure to settle meritless claims simply to avoid Continue Reading

University of Idaho law professor Wendy Gerwick Couture has published an interesting working paper analyzing a data set of dismissal opinions from securities fraud class actions: Around the World of Securities Fraud in 80 Motions to Dismiss. The paper is a quick read, distilling her data into eight major observations.

Among her most interesting findings:

Scienter is the largest problem for plaintiffs. Most defendants have had an intuition that plaintiffs have difficulty meeting the scienter requirement of the PSLRA.  Professor Couture’s data supports that intuition.

Failure to plead a strong inference of scienter, as required by the Private

Continue Reading

 Houston law professor D. Theodore Rave’s new paper Settlement, ADR, & Class Action Superiority (forthcoming from the Journal of Tort Law) contains an interesting insight about class action practice: when you get right down to it, there is little functional difference between (1) a class action settlement, (2) an AT&T "gold-plated" arbitration clause, and (3) a customer service action like a voluntary recall.  Or, as Professor Rave puts it:

Functionally, what is happening with class settlements, voluntary compensation schemes, and mandatory arbitration clauses in form contracts is very similar. Private actors are effectively designing a system of

Continue Reading

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

Since Judge Posner’s opinion in McReynolds v. Merrill Lynch almost two years ago, the issue of issue certification has been enjoying a renaissance. The latest entry in the discussion of how to look at issue certification comes from defense lawyer (and Georgetown adjunct law professor) Mark Perry, in his article Issue Certification under Rule 23(c)(4): A Reappraisal, 62 DePaul L. Rev. 733 (2013).

Perry bases his analysis on the proposal offered by Columbia Professor John Coffee that appeared in the 2011 version of his "New Class Action Landscape" memo. (A smart move: Professor Coffee is a … Continue Reading