Tuesday, January 26, 2010
A very interesting post from the folks at Drug and Device Law Blog available here. Note that as everything they write, this is from the defense perspective. As they note, fraud on the market theories allow class actions to be certified even in cases where reliance is an issue because reliance is presumed. Should this doctrine be imported from securities law? Apparently, most states say no. But there is some contrary precedent. They write:
We remind defense counsel to use this chart with appropriate caution. In particular, there's some contrary precedent, maybe a dozen or two cases nationwide. It mostly falls into two categories: (1) interpretations of state securities law statutes, and (2) older federal cases, involving tag-along pendent state claims from the era of "certify first and worry later" that existed prior to the Supreme Court's crackdown on class actions in the mid-1990s. Adhering to our policy of not doing the other side's research for them, we don't include it here. Just be aware that there are some stray adverse cases out there, and research accordingly.