Erstwhile defender of Madison County legal practice Evan Schaeffer attacks the recent lawsuit over Janet Jackson’s Super Bowl halftime show. (“Notes from the (Legal) Underground” blog, Feb. 8). Mr. Schaeffer’s legal analysis is this instance is impeccable — and ironic.

Mr. Schaeffer writes:

Common issues of fact and law do not predominate. The case is also unmanageable because too many sub-issues would have to be litigated on behalf of each person in the class. In this case, there are approximately 80 million people in the class. That?s 80 million individual mini-trials on issues such as these: Did you, Mr. Class Member, actually witness the lewd act? How has the brief glimpse of the Defendant?s breast affected you? Have you experienced sleeplessness? Irritability? Nightmares? Have you found it necessary to seek professional help? You get the idea.

The problem, of course, comes when judges refuse to enforce the requirement of “manageability” or “commonality” in class action law — as frequently happens in Madison County. Every criticism Mr. Schaeffer makes in this paragraph of the Super Bowl lawsuit is at least equally applicable to, for example, the Madison County class action lawsuit against Philip Morris over “light” cigarettes–and Philip Morris had additional arguments against class certification. (Philip Morris appellate brief, Dec. 10; Philip Morris motion to decertify the class because of conflict of interest of plaintiffs’ attorney, Mar. 14, 2003). The Illinois Supreme Court is likely to reverse the trial court decision to certify a class, but there was a risk for a while that the defendant would be unable to pay the bond on the bankrupting $10 billion judgment. Faced with such risks, many corporate defendants are forced to pay extortion to trial lawyers. And, because plaintiffs often get to choose their venue, they know to seek out the judges who won’t enforce class action requirements appropriately. Which is why the number of class actions filed in Madison County has increased from three to 106 between 1998 and 2003. (See Jan. 5).

In such an environment, it matters little that 90% of courts will get these questions right. All it takes is for one of the other 10% to rule to achieve a wealth transfer from pension holders owning stock to trial lawyers.

Mr. Schaeffer also correctly points out that the Super Bowl lawsuit is an improper multi-state lawsuit. Seventy-seven percent of class actions filed in Madison County in 2001 sought to certify multi-state or nationwide class actions. (John H. Beisner & Jessica Davidson Miller, “Class Action Magnet Courts: The Allure Intensifies”, Manhattan Institute, Jul. 2002). See update Feb. 14 (case withdrawn); May 28 (another case loses).

Full disclosure: Mr. Beisner and Ms. Miller are colleagues of mine at O’Melveny & Myers LLP.

Filed under: class actions, Illinois, Madison County, Manhattan Institute