Friday, January 29, 2010
The ABA Journal article is here. Apparently class actions have already been filed by consumers who claim that their cars are now worthless. The article quotes the Wall Street Journal quoting Richard Nagareda (Vanderbilt)
"Since it will be hard to represent a nationwide class," he said, "I don't think this litigation will be a big moneymaker for plaintiffs."
Wednesday, January 27, 2010
In Engle v. Liggett Group, 945 So.2d 1246, the Florida Supreme Court decertified a smoker class action, but held that factual findings in a class action of cigarette smokers could be preclusive in subsequent actions by individual plaintiffs. Now the 11th Circuit is charged with deciding whether this violates due process and what exactly the preclusive effect of the factual findings in the original class action will be in Brown v. R.J. Reynolds Tobacco Co., 08-16158.
The case was argued by NYU law professor Sam Issacharoff on behalf of the plaintiffs and Andrew Frey of Mayer Brown for the defendant tobacco company. A description of the argument can be found on Law.com.
Thanks to Richard Nagareda (Vanderbilt) for alerting me to these developments.
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.
BNA Law Week has an article by George Sibley and Alan Rudin called "Toxic Torts Minus Toxicity: Of Consumer Fraud Claims Relating to Food." 78 U.S.L.W. 2423.
The thesis of the article is that the proliferation of cases attacking the use of various substances in food (such as trans-fat) via consumer fraud claims rather than other types of torts (such as latent injury suits seeking medical monitoring or damages for increased risk). According to the authors, these claims are succeeding.
We do a poor job of regulating the food supply and manufacturer representations about the healthfulness of their wares. If you want to follow these issues from a plaintiff's perspective, Bill Marler's blog is very interesting.