Longtime readers may remember that last February I had the pleasure of participating in the DePaul Law Review’s symposium on Class Action Rollback.  The article from that symposium will be appearing shortly in the DePaul Law Review, and a very late draft of it is now available at SSRN. Without further comment, here is the SSRN abstract for the article:

Most discussions of legal doctrine assume that litigants will react to a change in doctrine, but not that they will try to influence that doctrine further by adopting new arguments or finding loopholes in the doctrine itself.

Continue Reading

 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

BNA’s Class Action Litigation Report has published an article by yours truly that adapts this post about arbitration post-Concepcion and tries to add a little more scholarly rigor.  

They’ve also graciously allowed me to make it available here, where you can find it suitable for downloading, printing, and stuffing in the stocking of your favorite class-action defense lawyer.  (It makes great kindling to go with the coal.)… Continue Reading

Late last year, the Eleventh Circuit ruled on the preclusive effect of a state-certified class action in federal court.  The Federalist Society very kindly asked me to comment on it for their online journal Engage.  It turned out to be a really interesting project, because what started out as an opinion about preclusion turned out to be more about the nature of commonality.  Here’s a quick preview of the argument:

While at first glance Brown addresses the preclusive effect of the Engle class action, the real question the Eleventh Circuit wrestled with was the scope of Rule 23(b)(3)’s predominance

Continue Reading

If you’ll forgive the second piece of self-promotion in a week: the Washington Legal Foundation (which keeps the always-interesting Legal Pulse blog) has just published a Legal Opinion Letter evaluating several of the arguments in favor of overturning the 9th Circuit’s Dukes v. Wal-Mart decision, written by yours truly.  

I’ll be participating in a briefing for the WLF on this issue in a few weeks (specific details when I get them), and another one a few days later for the American Constitution Society.   … Continue Reading

Enron.  The Toyota sudden acceleration MDL.  The Microsoft antitrust class actions.  There are no shortage of class actions that have arisen from government investigations of various kinds.  But while seeing a class action complaint arrive on top of a government subpoena can be stressful, it’s not necessarily the end of the world.  In fact, the defenses of each can harmonize in surprising ways.

On Tuesday, my colleague John Adams and I presented a CLE session on how to defend class actions that arise from government investigations of various kinds.  In it, we explained:

  • best practices for handling government
Continue Reading

Earlier this week, the Seventh Circuit, in an opinion by Judge Richard Posner, granted an injunction to Sears under the All Writs Act to block a class action that had been filed in federal court in California. The opinion, Thorogood v. Sears, Roebuck & Co., is noteworthy for a couple of reasons. First, it extends relief under the All Writs Act to defendants facing copycat class actions in other jurisdictions. Second, it does so in response to a plaintiff’s attempt to leverage a settlement using the threat of class-action discovery.

Steven Thorogood, the nominal plaintiff here, … Continue Reading