August 22, 2008
New Scholarship on Using a Cost-Benefit Analysis in Certification
Patrick Luff, a student at Michigan, has posted his piece, "Bad Bargains: The Mistake of Allowing Cost-Benefit Analyses in Class Action Certification Decisions," on SSRN. Here's the abstract:
The class action is a bete noir, attacked by corporate counsel, politicians, the media, and the public as unfair to businesses and individuals alike. In recognition of these complaints, proposed changes to the Federal Rules of Civil Procedure are a recurrent theme in complex litigation scholarship. One such example has been the suggestion that, in determining whether or not to certify a class action, the judge should weight the perceived costs and benefits that the certification decision would produce. However, as this Article will show, the arguments that favor a cost-benefit analysis stage in class action certifications fail because they are based on insufficient or misguided criteria. This Article emphasizes that the correct criteria by which to judge class certification decisions will be those that are conducive to public goods - such as deterrence of socially harmful conduct - and private goods - such as individual compensation for wrongdoing. In assessing proposed rules that would insert a cost-benefit analysis into class action certifications, this Article concludes that only a rule that avoids such a test can achieve the public and private goals that are the proper ends of the class action device.
August 19, 2008
Drug and Device Law on MDL
In this post on the Drug and Device Law Blog, a guest blogger Pearson Bownas discusses a defense side point of view on when the MDL grants motions to transfer. An interesting post, and I'd be interested in hearing any contrary points of view. You can find it here.
August 18, 2008
Iraq Injuries Spur Putative Class Action
According to the Fulton County Daily Report, a wrecker driver who was employed in Iraq with Houston-based Kellogg, Brown & Root claims that the company sent him without adequate training. Here's a brief excerpt of the story:
On Tuesday, his lawyers filed a class action lawsuit in Fulton County Superior Court in Georgia outlining Curtis "Bubba" Coffey's own experiences with the multinational contractor and pointing to several other highly publicized reports of deaths, accidents and sexual assaults allegedly tied to the company. Similar actions have been filed in other court jurisdictions across the nation with mixed results.
The complaint, filed on the same day a Congressional Budget Office report estimated that the United States spent more than $85 billion on contractors in Iraq between 2003 and 2007, targets KBR and nine subsidiaries, describing them as a "sham" and "corporate fiction" designed to "perpetrate a fraud for the direct personal benefit of KBR."
But "our main focus is that KBR is taking American folks, telling them that everyone they'll be working with is skilled, that everyone's trained," said Atlanta attorney E. Adam Webb. "Then they get to Iraq, and there's no training, no experience, people that speak no English -- that's what caused the direct issue here."
According to Webb and details contained in the lawsuit, Coffey, 45, was an experienced tow-truck driver who had earned his "WreckMaster" certification and was hired by KBR to "recover disabled vehicles, including tanks, personnel carriers, jeeps, cars and trucks." He was told that only persons with more than three years of experience would be considered for such employment and that extensive specialized training would be provided. But upon arriving for training at Camp Anaconda in Iraq in February, Coffey was rushed through an "ineffectual" training regimen with "trainers who were often inexperienced themselves," according to the suit.
The case name and number are Coffey v. Kellogg Brown & Root, No. 2008-CV-154929 and is filed in the Fulton County Superior Court. The article doesn't mention what the class definition is, but from the article itself, it sounds like one that might be subject to CAFA's removal provision.