Thursday, August 25, 2016

Rosenbaum on RICO & Class Actions

Briana Rosenbaum has posted on SSRN a draft of her article, The RICO Trend in Class Action Warfare, which will be published in the Iowa Law Review. Here’s the abstract:

Aggregate litigation, including class-actions and mass actions, have been under attack for decades. Recent Supreme Court cases have further weakened class actions, and the current Congress is considering numerous aggregate litigation and tort reform efforts. Recently, defendants in aggregate litigation have employed an additional tactic by filing civil RICO cases against plaintiffs’ counsel alleging they fraudulently concealed a few baseless lawsuits among larger sets of claims. The predicate acts in those RICO cases consist solely of litigation filings: the filing of complaints and related litigation documents in aggregate litigation. Members of the defense bar have made no secret of the fact that these RICO cases are part of a larger strategy to prevent plaintiffs’ attorneys from bringing large-scale litigation. Despite the rich literature on aggregate litigation, there is little scholarship exploring this recent aggressive use of RICO by the defense bar and corporate interest groups to punish plaintiffs’ attorneys for the alleged fraudulent filing of aggregate litigation.

This Article pulls together several previously unassociated areas of law—including RICO, Rule 11, complex litigation, SLAPP motions, and asbestos litigation—to develop a model for defendants’ use of RICO as a tool of reprisal. It argues that holding plaintiffs’ attorneys liable under civil RICO solely for litigation activities is illegal, results in the lamentable federalization of state common law, and leads to improper forum shopping. The RICO reprisal also avoids legitimate state protections for litigation activity and is a thinly veiled attempt by the defense bar to further weaken aggregate litigation by targeting the plaintiffs’ attorneys themselves. This use of RICO punishes the aggregate litigation device itself, rather than the underlying fraudulent conduct; as a remedy for frivolous aggregate litigation conduct, it is both over- and under-inclusive. The Article concludes by proposing several alternatives, including effectively barring any civil RICO action targeting attorneys’ pure litigation activities without a showing of malicious intent—a proposal that draws on existing common law litigation privilege doctrine.

 

 

 

August 25, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Tuesday, August 23, 2016

Sant’Ambrogio & Zimmerman on the Agency Class Action

Michael Sant'Ambrogio and Adam Zimmerman have posted on SSRN a draft of their article, Inside the Agency Class Action, which will be published in the Yale Law Journal. Here’s the abstract:

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.

A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes. 

This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies—including agency policymakers, staff and adjudicators—we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.

 

 

 

 

August 23, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Friday, August 19, 2016

California Supreme Court Decision on Class Action Attorney Fees

Last week the California Supreme Court issued an important decision on how to calculate the amount of attorney fees in class actions: Laffitte v. Robert Half International Inc.

Alison Frankel (Reuters) has this report.

 

Download Laffitte v Robert Half Intl (Cal.)

 

 

 

August 19, 2016 in Class Actions, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Friday, August 12, 2016

Proposed FRCP Amendments Published, Comment Period Begins

The Committee on Rules of Practice and Procedure has published proposed amendments to the Federal Rules of Civil Procedure (along with proposed amendments to the Appellate, Bankruptcy & Criminal Rules). The proposed FRCP amendments include—among other things—changes to Rule 23’s provisions on class actions.

Download Proposed Amendments August 2016

The comment period runs until February 15, 2017. Comments on the FRCP amendments can be submitted here.

In addition, the Civil Rules Committee will be holding the following public hearings:

  • Washington, DC on November 3, 2016
  • Phoenix, AZ on January 4, 2017
  • Dallas/Ft. Worth, TX on February 16, 2017

Here are the U.S. Courts website’s general links for published proposed amendments and rules committee hearings.

 

 

 

August 12, 2016 in Class Actions, Federal Rules of Civil Procedure | Permalink | Comments (0)

Friday, May 27, 2016

Forced Individual Arbitration of Wage-and-Hour Claims Violates NLRA

            The Seventh Circuit Court of Appeals, in an opinion by Judge Diane Wood, held that forcing an employee to agree to bring any wage-and-hour claim through individual arbitration violated the National Labor Relations Act.  Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016).

            Epic sent an email to some employees with an agreement requiring them to bring wage-and-hour claims only through individual arbitration and to waive the right to participate in any class, collective, or representative proceeding.  The email said that employees were “deemed to have accepted this Agreement” if they continued to work at Epic. 

            Plaintiff agreed at the time, but later sued Epic in federal court for violations of the overtime requirements of the Fair Labor Standards Act and Wisconsin law.  Epic moved to compel individual arbitration.

            Section 7 of the NLRA provides that “[e]mployees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.  The Seventh Circuit stated, “Section 7’s ‘other concerted activities’ have long been held to include ‘resort to administrative and judicial forums.’”  The court held that “the phrase ‘concerted activities’ in Section 7 should be read broadly to include resort to representative, joint, collective, or class legal remedies.”   Thus, “insofar as it prohibits collective action, Epic’s arbitration provision violates Sections 7 and 8 of the NLRA.”

            Further, the Federal Arbitration Act did not “save[] the ban on collective action.”  The district court’s denial of the motion to compel arbitration was affirmed. 

May 27, 2016 in Class Actions, Recent Decisions | Permalink | Comments (0)

Wednesday, May 25, 2016

Goings-On in the Committee that Never Sleeps (a/k/a the Civil Rules Advisory Committee)

            The indefatigable Advisory Committee on Civil Rules met on April 14, 2016 and prepared a report to the Committee on Rules of Practice and Procedure (the Standing Committee), which will meet June 6-7, 2016.  The report begins at page 251 of the Agenda book, and the draft minutes of the April 14 meeting begin at page 489 of the Agenda book.

            The report has three parts.  First, the Advisory Committee recommends that the Standing Committee approve proposed amendments to Rule 5 (e-service and e-filing), Rule 23 (class actions), and Rule 62 (stays of execution of judgment) for publication this summer. 

            Second, the Advisory Committee recommends that the Standing Committee approve two pilot projects for submission to the Judicial Conference.  The first pilot project would test a system of mandatory initial disclosures that would be more robust than those currently required by Rule 26(a)(1).  The second pilot project would test the effectiveness of court-wide adoption of practices to reduce “cost and delay.”

            Third, the Advisory Committee:

 (a) “describes proposals under active consideration for eventual publication and adoption,” including:

  • a new subdivision of Rule 5.2 dealing with redaction (super exciting stuff!);
  • studying “concerns about the operation of Rule 30(b)(6)(deposition of an entity)”; and
  • “consideration of the Rule 81(c) provisions for demanding a jury trial after a case is removed from state court”; and

(b) briefly mentions suggestions for rules amendments that the Committee has “removed from the agenda” (i.e., rejected for now), including:

  • the “separate document” requirement of Rule 58;
  • suggestions to assist pro se litigants;
  • amending the pleading standard in Rule 8(a)(2) (“The time has not yet come for such a project.”); and
  • mandatory disclosure of third-party financing arrangements.

        In future posts, I will discuss some of these developments in more detail.

May 25, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, May 18, 2016

SCOTUS Vacates Ninth Circuit in Spokeo, Remands for New “Concreteness” Inquiry

The Supreme Court issued Spokeo, Inc. v. Robins, No. 13-1339, earlier this week.  In a majority opinion unlikely to make anyone happy, the Court vacated the Ninth Circuit’s decision, which held that Robins had adequately alleged Article III standing, and remanded.

A Brief Recap

Robins’ complaint alleged that Spokeo maintained an inaccurate consumer report about him on its website, in violation of the Fair Credit Reporting Act’s requirement that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”  In particular, Robins alleged that a photo purporting to be Robins on the site wasn’t him, and that the site incorrectly stated that he was in his 50s, married, employed in a professional or technical field, has children, has a graduate degree, and is in the top 10% for wealth. 

The upshot of this disseminated misinformation, Robins alleged, was that when he was “out of work” and “actively seeking employment,” he encountered “[imminent and ongoing] actual harm to [his] employment prospects.”  

The Majority Opinion

You wouldn’t know that Robins alleged actual harm to his employment prospects by reading the majority opinion, which didn’t mention it.  Instead, the majority opinion by Justice Alito (joined by Roberts, Kennedy, and Thomas and inexplicably by Breyer and Kagan) managed to further stultify constitutional standing doctrine by seizing on the Court’s prior repetition of the phrase “concrete and particularized” in describing the “injury in fact” required for standing.  The Court now finds it obvious that these are separate, distinct requirements: (1) concrete and (2) particularized (although the Court cited no case that actually discussed these terms separately).  The Ninth Circuit, held the majority, applied the “particularized” branch but not the “concreteness” branch.

Continue reading

May 18, 2016 in Class Actions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, March 25, 2016

SCOTUS Decision in Tyson Foods v. Bouaphakeo: Another Important Case on Class Actions

This week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, covered here, here, and here. Tyson Foods is one of several important class action cases on the Court’s docket this Term—and the second one decided so far. Like Campbell-Ewald back in January, the Tyson Foods decision is generally good news for proponents of class actions. By a 6-2 vote, the Court upheld class certification under Rule 23(b)(3).

Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts wrote a separate concurring opinion, which was joined in part by Justice Alito. Justice Thomas wrote a dissenting opinion, which Justice Alito joined. All the opinions are worth a read, but below are a few highlights from Justice Kennedy’s majority opinion.

First, Justice Kennedy emphasized that the presence of some individualized issues is not fatal to Rule 23(b)(3)’s predominance requirement:

The predominance inquiry “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” [2 W. Rubenstein, Newberg on Class Actions], §4:49, at 195–196. When “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1778, pp. 123–124 (3d ed. 2005) (footnotes omitted).

Justice Kennedy also provided some important guidance on the Supreme Court’s 2011 Wal-Mart decision, clarifying that “Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.” He recognized the practical reality that “[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability. Manual of Complex Litigation §11.493, p. 102 (4th ed. 2004).” And:

In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class. To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot “abridge . . . any substantive right.” 28 U. S. C. §2072(b).

The Court ultimately did not resolve the second question in Tyson Foods, which was originally framed as “whether a class may be certified if it contains ‘members who were not injured and have no legal right to any damages.’” After noting that Tyson Foods had “reframe[d] this argument” in its merits brief, Justice Kennedy declined to address it “because the damages award has not yet been disbursed, nor does the record indicate how it will be disbursed.” The Court therefore remanded the case, recognizing that Tyson Foods “may raise a challenge to the proposed method of allocation when the case returns to the District Court for disbursal of the award.” In his final paragraph of analysis, however, Justice Kennedy noted that the potential for “uninjured class members” to recover from the class judgment appeared to be a problem “of [Tyson Foods’] own making,” because Tyson Foods had argued against having bifurcated liability and damages proceedings.

For additional coverage, check out:

 

March 25, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, March 18, 2016

Seiner on Class Actions in the Technology Sector

Joe Seiner has posted on SSRN a draft of his essay, Tailoring Class Actions to the On-Demand Economy, which will be published in the Ohio State Law Journal. Here’s the abstract:

In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.

The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.

Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important — yet unexplored — area of the law.

 

March 18, 2016 in Class Actions, Recent Scholarship, Web/Tech | Permalink | Comments (0)

Tuesday, February 23, 2016

Dodson on Opt-In Class Actions

Scott Dodson (Hastings) has posted An Opt-In Option for Class Actions

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes over broad and ill-defined classes; these critics favor an opt-in model. This bimodal debate — opt out vs. opt in — has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on an opt-out or an opt-in basis? This article explores such an opt-in option. It considers the effects of opt-in classes’ enhanced cohesiveness and representational character on the ease of class certification, the logistical challenges of opt-in mechanisms and the technological advances that can mitigate those challenges, the doctrinal feasibility of allowing an opt-in option, and the potential pitfalls the option presents. The article concludes that the opt-in option has positive potential, and it offers specific proposals for rule makers to consider.

 

 

February 23, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Thursday, February 11, 2016

Morley on Injunctive Relief and De Facto Class Actions

Michael Morley has posted on SSRN a draft of his article, De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Other Constitutional Cases. Here’s the abstract:

When a court holds that a legal provision is unconstitutional; inconsistent with, or preempted by, federal law; or invalid under an agency's organic statute or a framework statute such as the Administrative Procedures Act, the court must decide whether to grant injunctive relief and, if so, how broad that relief should be. In particular, the court must decide whether to issue a Plaintiff-Oriented Injunction or a Defendant-Oriented Injunction. A Plaintiff-Oriented Injunction bars the government defendants from enforcing the challenged provision only against the plaintiffs in the case or affected members of plaintiff organizations. A Defendant-Oriented Injunction, in contrast, completely bars the government defendant from enforcing the challenged provision against anyone in the state or nation.

Many courts tend to award Defendant-Oriented Injunctions in election law and voting rights cases, even when they are not brought as class actions, without recognizing or addressing most of the pertinent issues that choice implicates. Individual plaintiffs typically lack Article III standing to seek relief protecting the rights of third parties not before the court. And such third parties may neither fall within the court’s personal jurisdiction nor wish to challenge the provision at issue. Defendant-Oriented Injunctions in non-class cases also raise asymmetric preclusion concerns, undermine the policy considerations underlying Rule 23, and allow trial courts to enforce their rulings beyond the geographic limits of their jurisdiction. 

Continue reading

February 11, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Tuesday, February 9, 2016

Choi and Pritchard on SEC Investigations and Securities Class Actions

A new article by Professors Stephen J. Choi and A.C. Pritchard, SEC Investigations and Securities Class Actions: An Empirical Comparison, has been published in the Journal of Empirical Legal Studies.

Abstract:

Using actions with both an SEC investigation and a class action as our baseline, we compare the targeting of SEC-only investigations with class-action-only lawsuits. Looking at measures of information asymmetry, we find that investors in the market perceive greater information asymmetry following the public announcement of the underlying violation for class-action-only lawsuits compared with SEC-only investigations. Turning to sanctions, we find that the incidence of top officer resignation is greater for class-action-only lawsuits relative to SEC-only investigations. Our findings are consistent with the private enforcement targeting disclosure violations at least as precisely as (if not more so than) SEC enforcement.

February 9, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Palmer on Partisan Appointments to Special Courts and Panels

A new article, Does the Chief Justice Make Partisan Appointments to Special Courts and Panels?, by political science professor Maxwell Palmer (Boston University), has been published in the Journal of Empirical Legal Studies.

Abstract:

The Chief Justice of the Supreme Court has the exclusive and independent power to appoint federal judges to various special courts and panels, including the Foreign Intelligence Surveillance Court (FISC), the court that oversees all domestic surveillance for national security, including domestic data collection by the National Security Agency (NSA). This article examines the propensity of Chief Justices to appoint co-partisan judges to these panels. Such appointments may serve to produce decisions and policies that align with the Chief Justice's preferences. I use computational simulations to model the appointment decisions made by Chief Justices. I find that there is less than a 1 percent chance that a neutral Chief Justice would appoint as many Republicans to the FISC as have been appointed in the last 36 years. I further show that the Chief Justice is not selecting appointees on other observable judicial characteristics, such as age, experience, gender, senior status, or caseload. These results have important implications for the creation of judicial institutions, the internal politics of the judiciary, legislative delegation, and the powers and oversight of the national security state.

February 9, 2016 in Class Actions, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Friday, January 22, 2016

Article on Spokeo, Inc. v. Robins Now on St. Thomas Journal of Complex Litigation Website

I'm overcoming my reticence to post twice about one of my articles, because I want to promote the law students at St. Thomas University School of Law who have labored to establish the new St. Thomas Journal of Complex Litigation (JCL).  The final version of my article, "Spokeo, Inc. v. Robins: The Illusory 'No-Injury' Class Reaches the Supreme Court," has just been posted on the JCL website.  The abstract is available on SSRN here. 

The St. Thomas JCL is pleased to accept submissions through ExpressO or Scholastica from judges, attorneys, law faculty, and law students.  Information on submissions is here.   

 

 

January 22, 2016 in Class Actions, Recent Scholarship, Standing, Supreme Court Cases | Permalink | Comments (0)

Wednesday, January 20, 2016

Today’s SCOTUS Decision in Campbell-Ewald v. Gomez

The Supreme Court issued its decision today in Campbell-Ewald Co. v. Gomez, a closely watched case on class actions, Article III, and mootness (covered earlier here and here). Justice Ginsburg’s majority opinion begins:

Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.

Justice Ginsburg’s opinion is joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas adds a sixth vote, but writes a separate concurring opinion. Chief Justice Roberts writes a dissenting opinion, joined by Justices Scalia and Alito, and Justice Alito writes a dissenting opinion as well.

 

 

 

January 20, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, January 15, 2016

SCOTUS Cert Grant in Microsoft v. Baker: Appellate Review of Orders Denying Class Certification

Today the Supreme Court granted certiorari in Microsoft Corp. v. Baker, limited to the following Court-generated question:

Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

January 15, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Sunday, January 10, 2016

House Passes Bill Aimed to Stifle Class Actions

On January 8, the House of Representatives passed the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016.  (The L.A. Times called the "fairness in class action" part of the title "Orwellian" and "shameless[].")

For additional coverage of the bill, see our post from last Friday.

The bill goes to the Senate next for consideration.  

 

January 10, 2016 in Class Actions, Current Affairs, Mass Torts, MDLs | Permalink | Comments (1)

Friday, January 8, 2016

House to Vote on Bill Strictly Limiting Class Actions

The House of Representatives is close to taking up a bill (H.R. 1927) that some are calling the "Volkswagen bail-out bill" due to its stymieing effect on class actions.  Another part of the bill, the Huffington Post charges, "would force the online disclosure of sensitive personal information of sick and dying asbestos victims seeking compensation for their illnesses."

When we last reported on this bill, it dealt only with class actions.  That bill has now been amended and combined with another bill on asbestos claims, resulting in the "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2015." 

The latest draft of the portion of the bill on class actions reads as follows:

SEC. 2. FAIRNESS IN CLASS ACTION LITIGATION.

(a) IN GENERAL.—No Federal court shall certify any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.

(b) CERTIFICATION ORDER.—An order issued under Rule 23(c)(1) of the Federal Rules of Civil Procedure that certifies a class seeking monetary relief for personal injury or economic loss shall include a determination, based on a rigorous analysis of the evidence presented, that the requirement in subsection (a) of this section is satisfied.

The House Judiciary Committee has issued House Report 114-328 on the class action portion of the bill.  The Democrats opposing the bill stated in their dissenting views that the bill is “a solution in search of a problem” and “represents the latest attempt to shield corporate wrongdoers and deny plaintiffs access to justice.”  They concluded: 

H.R. 1927 is an unnecessary bill that threatens to deny millions of plaintiffs access to Federal courts by creating potentially insurmountable obstacles to class action certification and raising litigation costs. Moreover, it disrespects the Federal courts by imposing new burdens on them and by circumventing the congressionally created Rules Enabling Act process by which Federal civil procedure rules are amended after extensive input from the bench and bar.

Meanwhile, at the annual meeting of the Association of American Law Schools, members of the Advisory Committee on Civil Rules are scheduled to discuss potential class actions reforms today.  I am not at the conference this year, and would be interested to learn if anyone mentions H.R. 1927 and how that bill might relate to proposals before the Advisory Committee. 

The House yesterday passed a resolution limiting amendments to and debate on the bill.

Professor Alexandra D. Lahav testified against the bill last April.  

 

 

January 8, 2016 in Class Actions, Current Affairs, Mass Torts | Permalink | Comments (0)

Wednesday, December 16, 2015

CAFA Governs Attorneys’ Fees in Class Settlement Involving Michaels’ Vouchers

          An interesting opinion by U.S. District Judge William G. Young:

  • provides a definition of “coupons” as used in the Class Action Fairness Act;
  • makes sense of the “poorly drafted” CAFA provision regulating attorneys’ fees in so-called coupon settlements; and
  • incidentally speculates on the relationship between MDL case assignment, the potential loss of judgeships in a district, and the strictness of a district judge’s scrutiny of attorneys’ fees in class action settlements.

Tyler v. Michaels Stores, Inc., No. CV 11-10920-WGY, 2015 WL 8484421 (D. Mass. Dec. 9, 2015).

            This class action, based on Massachusetts consumer law, alleged that Michaels “asked customers for their zip codes as part of credit card transactions to reverse engineer those customers' addresses using commercially available databases, and then used those addresses to carry out aggressive and unwanted marketing campaigns.”  [Internal quotation marks omitted.]  After Michaels moved to dismiss, the federal court certified legal questions to the Supreme Judicial Court of Massachusetts, which held plaintiffs’ allegations sufficient under state law. 

            After discovery, the parties settled and the court approved the settlement, reserving a ruling on class counsel’s request for fees.  Under the settlement, class members were to receive a $10.00 or $25.00 “voucher” to be used on any merchandise in Michaels’ physical stores, with certain restrictions on use.  The face value of the vouchers was $418,000.00.  The value of the vouchers actually redeemed by class members was $138,620.00.

            Class counsel requested fees and costs of $425,000.00, asserting that Massachusetts law, not CAFA, governed the fees request because the vouchers were not “coupons” as used in CAFA, 28 U.S.C. § 1712, which applies to settlements that “provide[] for a recovery of coupons to a class member.”  Surprisingly, CAFA does not define “coupon.”  Surveying other cases, the Court “essay[ed] such a definition: when class members must transact business with the defendant to obtain the benefit of the settlement, the settlement ‘provides for a recovery of coupons’ under section 1712. In other words, coupons must be redeemed; conversely, if an award must be redeemed, it is a coupon.”  Under that definition, the Michaels vouchers were coupons, and section 1712 applied to the fees request.

            That didn’t settle the matter, however, because section 1712 is bewilderingly drafted.  (I won’t reprint it here: just read subsections (a), (b), and (c), if you dare, and see if you can decipher them.)  Again after surveying other cases, the Court held that even in a coupon-only settlement, section 1712 “vests the Court with the discretion to choose between using a percentage-of-coupons-redeemed method, or the lodestar method.” 

          Here, the Court chose the lodestar method (attorney hours worked times hourly fee) for two reasons:  “[f]irst, class counsel vindicated the important public policy goals of Massachusetts' consumer protection statute,” and “[s]econd, and most importantly, they obtained binding precedent from the Supreme Judicial Court that will influence conduct far beyond that of Michaels.”  However, the Court warned:

Given the hostility to disproportionately large fee awards to class counsel evident in the legislative history -- at least insofar as fees generated from obtaining coupon settlements were concerned -- counsel may reasonably expect that this Court will generally award attorneys' fees based on a percentage of the actual value of the coupons redeemed by class members, absent the groundbreaking nature of this case.

[Footnotes omitted.]

            The Court found that the requested hourly fee of $650.00 for partners was unreasonable, and cut it to $350.00.  This yielded a lodestar of $312,895.00 in attorneys’ fees, which was awarded along with $14,005.30 in costs.

            In other words, the fees award, even though reduced from what was requested, still ended up being more than twice as much as the value of the vouchers actually redeemed by class members.  Personally, I have no problem with that: in my opinion, the primary purpose of the consumer class action is not to compensate the plaintiff class, but to hold the defendant accountable for violating the law.  Others obviously disagree.   

            Here’s where the Court’s two-page footnote 29 comes in.  The Court’s point appears to be this: at least one pro-business advocacy group has argued to the Judicial Panel on Multidistrict Litigation that the Panel’s decision where to send an MDL should “rest on a district judge’s strict scrutiny of claims for attorneys’ fees in class action settlements.”  In other words, business interests have argued that the more strictly a district judge scrutinizes fees requests, the more that judge should be favored as the transferee court in an MDL.  But why should judges want to be the transferee court in an MDL?  Because all of those transferred cases will now be counted as part of that judge’s, and that district’s, civil caseload.  (When a civil case is filed in one district, and transferred to another district for whatever reason, including MDL, it is counted as a filing in both the transferor and the transferee court.  So, for example, if the Panel transfers 5,000 MDL cases to another district, the transferee district gets 5,000 cases added to its total filings.)  This accrual of cases “tend[s] to immunize that court against the potential loss of a judgeship,” because recommendations by the Judicial Conference to add or subtract authorized district court judgeships are based in part on the number of case filings that district has.

            So the Court in Tyler candidly “confess[ed] that, when awarding attorneys' fees in this case, it contemplated -- but rejected as wholly inappropriate -- an additional consideration: the views of the Judicial Panel on Multidistrict Litigation.”       

December 16, 2015 in Class Actions, MDLs, Recent Decisions | Permalink | Comments (0)

Monday, December 14, 2015

SCOTUS Decision in DIRECTV v. Imburgia: Federal Arbitration Act Overrides State Contract Law (Again)

Today the Supreme Court issued its decision in DIRECTV, Inc. v. Imburgia. The vote was 6-3, with Justice Breyer writing the majority opinion. Justice Thomas writes a dissenting opinion, and Justice Ginsburg writes a dissenting opinion joined by Justice Sotomayor.

As covered earlier here and here, Imburgia is another case involving the Federal Arbitration Act (FAA). The particular issue is whether the FAA allows California to construe an arbitration provision referring to California state law (the “law of your state”) to mean state law as it existed prior to the U.S. Supreme Court invalidating certain aspects of California contract law in its 2011 decision in AT&T Mobility LLC v. Concepcion. That was how the California Court of Appeal construed the arbitration agreement in Imburgia, but Justice Breyer’s majority opinion disagrees, concluding instead that such a construction itself violates the FAA by failing to “place arbitration contracts on equal footing with all other contracts.”

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December 14, 2015 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (1)