Posts Tagged ‘class actions’

Campbell-Ewald v. Gomez: make mine moot

Can a defendant in a class action moot the whole proceeding by offering the named plaintiff the full value of his claim, thus “picking him off”? No, or at least not in the case at hand in Campbell-Ewald v. Gomez, the Supreme Court ruled on Wednesday by a 6-3 margin. I discuss the case in a new post at Cato. More, Alison Frankel/Reuters, Howard Wasserman/Prawfs; earlier here and here]

December 30 roundup

  • Federal Circuit court of appeals says government can’t deny trademark as “disparaging” just because it frowns on its expressive content, implications are favorable for Washington Redskins in their legal case [Eugene Volokh, Paul Alan Levy, In Re Simon Shiao Tam opinion, case won by past Overlawyered guestblogger Ron Coleman]
  • Mentally ill man walks into San Diego county recorder’s office, submits properly filled-out deed transferring major sports stadium to his name, chaos ensues [San Diego Union Tribune]
  • Lawsuit against prolific California class action firm includes details on how it allegedly recruits plaintiffs, shapes testimony [Daniel Fisher]
  • New Jersey: “Man Sues Because Alimony Checks Were Mean To Him” [Elie Mystal/Above the Law, ABA Journal]
  • Blustery Texan Joe Jamail, “greatest lawyer who ever lived” or not, was no stranger to Overlawyered coverage [Houston Chronicle, Texas Monthly (“We only overpaid by a factor of five, and that felt like a win”), Daniel Fisher (city should have cut down beloved oak tree in road median because “it isn’t open season on drunks”)] Jamail’s best-known case gave me chance to write what still might be my all-time favorite headline, for a Richard Epstein article in what is now Cato’s (and was then AEI’s) Regulation magazine: “The Pirates of Pennzoil.”
  • Hotel security camera footage may help decide whether Eloise tainted-sandwich tale will end up shelved as fiction [New York Post]
  • Your War on Drugs: shopping at garden store, throwing loose tea in trash after brewing combine with police goofs to generate probable cause for SWAT raid on Kansas family’s home [Radley Balko] More: Orin Kerr.

Supreme Court and constitutional law roundup

December 16 roundup

  • Judge Jed Rakoff reviews new book by Columbia lawprof John Coffee on future of class actions [New York Review of Books]
  • About that “vaping could cause popcorn lung” scare: “All conventional [cigarette smoke] contains… levels of diacetyl… a lot higher than those produced by e-cigarettes.” [Michael Siegel]
  • A peek inside Kinder Surprise eggs, global candy favorite that cannot lawfully be brought into the U.S. [Business Insider, earlier]
  • Man’s suit against New York’s Metropolitan Museum of Art as “too white” raises eyebrows [New York Post, ArtNet]
  • Courageous: in Saudi Arabia, lawyer Waleed Abulkhair, who has represented blogger Raif Badawi, imprisoned for doing his job [Scott Greenfield]
  • Lawyer’s advice: bosses face legal risk if they let their employees join in #ElderlyChristmasSongs Twitter levity [Jon Hyman]
  • Current food labeling standards “provide a big nudge for people to eat less saturated fats and more carbohydrates,” contrary to what many doctors now advise [Ike Brannon, Cato]

Liability roundup

December 2 roundup

  • Nice work: how one lawyer cleans up filing piggyback class actions after the Federal Trade Commission and other enforcement agencies cite marketers for violations [Daniel Fisher, Forbes]
  • Cites inmate’s 18-year history of frivolous complaints: “Prisoner can’t sue USA Today for not printing gambling odds, Pennsylvania court says” [PennLive]
  • Canada’s pioneering cap on regulation could be a model for U.S. [Laura Jones, Mercatus via Tyler Cowen]
  • “He had a right to shoot at this drone, and I’m going to dismiss this charge” [Eugene Volokh on Kentucky case noted in July]
  • Dear John: Los Angeles may use license-plate readers to go after drivers who enter “wrong” neighborhoods [Brian Doherty]
  • Asylum law (which differs in numerous ways from refugee law, among them that it typically addresses claims of persons already here) hasn’t quite solved its own vetting problem [flashback from last year, more]
  • Georgia lawyer “sanctioned for ‘deploying boilerplate claims’ and ‘utterly frivolous’ arguments” [ABA Journal]

New York Times blasts arbitration. What’s missing?

The New York Times, which can scarcely mention firearms policy without invoking the Gun Lobby, runs a big feature endorsing the claims of arbitration opponents that is curiously evasive about the role of the Litigation Lobby. Daniel Fisher, Forbes:

The writers who penned today’s New York Times Page One expose of arbitration clauses say they examined thousands of court documents and interviewed hundreds of lawyers, yet they fell for a rookie mistake: They confused class-action plaintiffs for the real thing….

The “article splayed across four pages of the Sunday Times” profiles the owner of the Italian Colors restaurant, the named plaintiff in a class action against American Express that went to the Supreme Court, as if he were typical of “plaintiffs [who] sprang up spontaneously and went out and hired lawyers to vindicate their rights?

Who were his lawyers? The Times doesn’t think you need to know. But here’s the main one: Gary B. Friedman, an attorney who specializes in suing credit-card companies. He recently suffered a bit of bad press when a federal judge in New York threw out a proposed settlement of another class action against Amex because Friedman had displayed “improper and disappointing conduct” by communicating sensitive information to a lawyer for the other side. The judge criticized Friedman for “blatant collusion” by negotiating a settlement with the defense that was “contrary to the wishes of the putative class.”

Now why couldn’t the enterprising Times reporters find room in such a large story for a mention of Friedman? Perhaps because he represents the real face of consumer class actions. These aren’t lawsuits by little guys like Carson trying to vindicate their rights against big corporations. Most are lawsuits by wealthy attorneys trying to get wealthier, by using the mechanism of the class action — originally developed to allow courts to declare classes of plaintiffs in civil-rights cases — to present companies with an offer they can’t refuse: Settle and pay us a rich fee, or risk a devastating loss in court.

Fisher summarizes: the Times “reports without skepticism the plaintiff-lawyer version of the story.” That’s a shame on a topic where even such a liberal figure as California Gov. Jerry Brown, who recently vetoed an anti-arbitration bill, acknowledges there are genuine concerns on both sides.

Our coverage of contractually agreed pre-dispute arbitration — including both the practical and the freedom-of-contract arguments for it — goes back to the early days of this site, including Coyote (“Here is how you should think about this proposed law: Attorneys are the taxi cartels, and arbitration is Uber. And the incumbents want their competitor banned.”), James Taranto on the Times as “two papers in one,” Andrew Pincus on arbitration as still pretty much the Litigation Lobby’s number one target. Much coverage also at Point of Law, including Ted Frank on a familiar-sounding law firm’s use of pre-dispute arbitration clauses.

P.S. I’ll bet he has: “Having worked extensively with Silver-Greenberg on this series over the past several months…” [Deepak Gupta, Public Citizen]

And: more thoughts at Cato at Liberty, including links to Cato work and discussion of why consumers so seldom switch from one provider to another in search of more favorable fine print on class action availability.

Supreme Court roundup

Liability roundup

  • Preview of testimony from Dr. Robert Taub, formerly of Columbia U., in upcoming asbestos-referral corruption trial of former New York assembly speaker Sheldon Silver [NY Post]
  • Class action procedure: “Big Changes to Rule 23 in 2018? Be Sure to Weigh In Now” [Paul Karlsgodt, Andrew Trask]
  • In case it wasn’t clear already — but Overlawyered readers knew, didn’t they? — the aunt who sued her nephew wasn’t really upset with her young relative, she was trying to get at insurance money [New Jersey Civil Justice Institute]
  • “Judge’s Solution To Lead-Paint Problem May Be A Public Nuisance Itself” [Daniel Fisher]
  • “Randy Maniloff: Lawyers want to force teams to use ‘foul pole to foul pole’ netting to protect fans from injury” [W$J, earlier]
  • House passes bill to re-toughen Rule 11 sanctions, prospects for getting past White House uncertain [Rep. Lamar Smith press release, Texans for Lawsuit Reform on Lawsuit Abuse Reduction Act]
  • Denver: “a case that lawyers say is the first product liability claim in the nation involving the legal marijuana industry” [Greenfield Reporter]