ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Wednesday, August 1, 2012

New in Print

Pile of BooksNorman D. Bishara, and David Orozco. Using the Resource-Based Theory to Determine Covenant Not to Compete Legitimacy, 87 Ind. L.J. 979 (2012)

Charles K.Whitehead, Sandbagging: Default Rules and Acquisition Agreements, 36 Del. J. Corp. L. 1081 (2011)

In addition, we just learned of this publication by a reader of the blog:

Eric Voigt, A Company's Voluntary Refund Program for Consumers Can Be a Fair and Efficient Alternative to a Class Action,"31 Rev. Litig. 617 (2012)

Here is Professor Voigt's description of his article:

My article concludes that Rule 23 requires courts to consider a company's voluntary refund program (and other non-judicial methods) in determining whether the proposed class action is the superior procedure.  My conclusion is strongly supported by the Advisory Committee Notes to the 1966 amendment to Rule 23, as well as commentary by two former members of the Committee (including Professor Wright), the original purpose of the superiority requirement, and courts’ initial interpretations of the 1966 amendment.  No federal court or scholar has analyzed the historical meaning of Rule 23(b)(3) as it applies to a voluntary refund program. 

The last part of my article discusses what features a refund program should have for it to qualify as a fair and efficient alternative to a class action.  The fairness prong requires companies to (1) replace the product at issue or reimburse consumers for out-of-pocket expenses, such as the product’s purchase price and any property damages caused by the product, and (2) notify most affected consumers about the refund program so that the program is a real, not illusory, remedy.  The type of notice depends on the circumstances.  For example, in some cases, postings at the point of sale would be sufficient; in other cases, notice should be published nationally on the internet and in print. 


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