- “Businesses Warn Fear of Lawsuits Could Stall Rebooting of Economy” [Andrew G. Simpson, Insurance Journal; New York Times (“liability companies could face if employees were to get sick after returning to work”); Eugene Volokh (Jim Salzman proposal on assumption of risk legislation, and the constitutional angle)]
- Emergency declaration triggered liability protections for people and enterprises responding to outbreak [Andrew Bayman, Geoffrey Drake, and Mark Sentenac, King & Spalding; Jim Beck, Drug & Device Law] 2005 pandemic-preparedness bill’s liability protections were inevitably assailed by Sen. Edward Kennedy and Public Citizen [Tyler Cowen]
- “Protect the Doctors and Nurses Who Are Protecting Us; They need immunity from lawsuits and prosecution for triage decisions.” [I. Glenn Cohen, Andrew Crespo, and Douglas White, New York Times; Erik Larson, Bloomberg]
- “Class Actions During COVID-19” [Frank T. Spano and Elizabeth M. Marden, Polsinelli]
- From before the crisis: “New York Holds that Registration to do Business does not Constitute Consent to General Personal Jurisdiction” [Stephen McConnell, earlier here and here]
- More from before the crisis: Federalist Society debate between Brian Fitzpatrick and Ted Frank on Fitzpatrick’s new book The Conservative Case for Class Actions; trucking business reels under huge verdicts [Matt Cole, Commercial Carrier Journal, parts one and two, earlier here, etc.] Ex-client sues Houston’s “Car Wreck Clyde” charging case running and other no-nos [Brenda Sapino Jeffreys, Texas Lawyer] In Florida, “‘Inconspicuous’ political cash helped trial lawyers notch wins against insurers” [Matt Dixon and Arek Sarkissian, Politico]
Posts Tagged ‘class actions’
Liability roundup
- Class actions: “How to pick lead counsel, Judge Alsup-style” [Alison Frankel, Reuters]
- Foiled by video: “N.J. man busted staging slip-and-fall for insurance money learns his sentence” [Noah Cohen, NJ Advance Media]
- More on the “reptile theory” of jury persuasion [Drug and Device Law: Stephen McConnell, more from James Beck; earlier here, here, etc.]
- Trial lawyer consultants are sticking with their story that Toyotas are subject to electronically induced sudden acceleration that cannot be overcome by the brakes, and the Fair Warning website is not the place to expect a skeptical reaction to that [Amy Martyn, Fair Warning, our coverage]
- Arbitration-killing bill: so-called FAIR Act is trial bar top priority in Congress [Phil Goldberg, Washington Examiner]
- “Can a new study solve Johnson & Johnson’s talc problem?” [Chuck Dinerstein, American Council on Science and Health]
“Woman Upset She Didn’t Lose Weight Loses ‘Diet’ Dr Pepper Lawsuit Appeal”
The Ninth Circuit has “refused to reinstate a class-action lawsuit by a woman who argued that the makers of Diet Dr Pepper committed fraud.” “No reasonable consumer would assume that Diet Dr Pepper’s use of the term ‘diet’ promises weight loss or management,” wrote Judge Jay Bybee. The unanimous three-judge panel also declined to accept of lawyers for named plaintiff Shana Becerra that the depiction of “attractive, fit models in the ads implies that Diet Dr Pepper will help its consumers achieve those bodies.” [AP/NBC Los Angeles; opinion in Becerra v. Dr Pepper/SevenUp at Court Listener]
Also: “Woman sues Blue Buffalo dog food company for making her pooch fat” [Emily Saul, New York Post]
Ted Frank reviews “A Conservative Case for Class Actions”
Brian Fitzpatrick’s new book A Conservative Case for Class Actions isn’t particularly conservative in its recommendations, and is based on a faulty premise as to the business model of the class action as currently pursued in American courts, writes Ted Frank [National Review]
Class action roundup
- “Prices may vary” disclaimer said too small: “A Couple Is Suing Taco Bell for Overcharging Them $2.18 for Chalupas” [Jelisa Castrodale, Vice] “Bronx man sues NBC Universal over ‘unlimited’ soda refills at theme park” [Emily Saul and Natalie O’Neill, New York Post]
- An old Florida law bans the use in alcoholic beverages of grains of paradise, a spice widely available online, resulting in a class action lawsuit against makers of a well-known British gin [Baylen Linnekin]
- Post-decision Federalist Society podcast on Frank v. Gaos (Supreme Court remands on standing issue without resolving issue of cy pres adequacy) with the eponymous Ted Frank;
- “FTC’s comprehensive study finds median consumer class action claims rate is 9%” [Alison Frankel, Reuters]
- A recent Ted Frank win: “U.S. appeals court voids Google ‘cookie’ privacy settlement that paid users nothing” [Jonathan Stempel, Reuters] “Zappos data breach settlement: users get 10% store discount, lawyers get $1.6m” [Catalin Cimpanu, ZDNet] “Worse, 10% code doesn’t stack w/ existing discounts.” [@tedfrank on Twitter]
- California privacy law fuels class actions over smart speakers such as Amazon’s Alexa, Google Home and Apple’s Siri [Alicia A. Baiardo & Christine M. Mastromonaco, Class Action Countermeasures]
“Wuest’s litigation history is more than unusual”
Judge William Alsup of the federal court in San Francisco has refused a motion to certify a privacy class action in which the named plaintiff would be a man who has “filed 10 other California Invasion of Privacy Act actions, none of which ever reached the class certification stage” but instead concluded with private settlements [Mario Marroquin, Legal NewsLine; Alison Frankel, Reuters]
“Wuest’s litigation history is more than unusual,” Alsup wrote. “This order finds that it shows a pattern of using the threat of class action to extract an undeserved premium on an individual claim. This pattern is further evidenced by the fact that in several of the bases, both Wuest and his counsel received settlement amounts disproportionate to maximum recovery allowed under the statute.
“The pattern is quite clear. The premium was something rightfully due to the ‘class’ but no absent putative class member ever got anything. Wuest and his counsel got it all.”
Liability roundup
- Little kid gets into driver’s seat, depresses gas pedal, injures mother, lawsuit tries to blame this on Tesla [Linette Lopez, Business Insider via Ted Frank]
- “New York court strikes down $7 million talc/asbestos verdict, says plaintiff’s evidence was lacking” [Daniel Fisher, Legal NewsLine]
- “How a Jury Asked for 10 Million Dollars Came to Award $2,500” [Brunswick, Ga.; Katheryn Tucker, Fulton County Daily Report (reg)]
- If Europe adopts American-style class action mechanisms, it should also look to the procedural safeguards we’ve had to develop to cut down on abuse [Kevin LaCroix, D&O Diary]
- “Setting the Record Straight About the Benefits of Pre-Dispute Arbitration” [Victor Schwartz and Christopher Appel, Washington Legal Foundation]
- Judge turns away Justice Department challenge to Dial soap class action settlement [Mark Hayward, New Hampshire Union Leader]
Ruin by multiplication, in a New York bill
A pending New York bill, A.679/S.2407, would amend the state’s chief consumer protection law to raise guaranteed minimum statutory damages forty-fold, to $2,000 per sued-over transaction. Combine that with class action features that would enable multiplicative application to whole classes of repeat transaction, and the result should terrify business [Jonah Knobler, New York Law Journal]
Class action roundup
- Supreme Court remands Frank v. Gaos to lower court on standing issue, thus sidestepping cy pres question; dissenting from per curiam ruling, Justice Clarence Thomas writes that cy pres payments are “not a form of relief to the absent class members and should not be treated as such (including when calculating attorney’s fees)” [opinion; Ronald Mann, SCOTUSBlog]
- New Manhattan Institute report details problems with cy pres, including its use to support ideologically fraught groups and those advancing plaintiffs’-side interests [James Copland, Trial Lawyers Inc. Update 2019: Cy Pres]
- “Apricot scrub” product was marketed as an exfoliant, court recognizes, and abrasive properties of crushed walnut shells as ingredient are feature not bug [Eric Alexander, Drug and Device Law]
- Cough drop action could provide soothing relief for counsel’s bank account [David Andreatta, Rochester Democrat and Chronicle]
- “Don’t import US-style class action abuses – think-tank” [Law Society Gazette, Ireland]
- As part of its newly active stance on class action oversight, U.S. Department of Justice intervenes in cookie labeling settlement [Amanda Bronstad, Law.com; U.S. Statement of Interest in Cowen v. Lenny and Larry’s]
Higher education roundup
- Oops! “Tulane sophomore unknowingly named as plaintiff in lawsuit over college bribery scandal” [John Simerman, New Orleans Advocate] “Admissions scandal class action is ‘fascinating’ but likely doomed – experts” [Alison Frankel, Reuters] Plus advice from Ken at Popehat;
- Some problems with the idea of a sweeping presidential order to decree free speech on campus — and a promising if more modest step the White House could take instead [Donald Downs, Cato] Two more views on how universities can “fend off outside intervention and, more importantly, be true to their own mission… [by] nurturing a better free speech culture” [Keith Whittington, parts one and two; John McGinnis]
- “‘If racial preference [in college admissions] is unjust, then it doesn’t magically become just because people notice some other injustice that has different beneficiaries,’ Olson said. ‘Two things can be unjust at the same time, and two injustices do not add up to one justice.'” [John Blake, CNN, quoting me on the argument that the admissions scandal somehow proves preference advocates’ case]
- Harvard lawprof and residential dean Ronald Sullivan under fire for defending unpopular figures facing MeToo charges
[Randall Kennedy, Chronicle of Higher Education; Conor Friedersdorf (quoting HLS prof Janet Halley: “Finally, the ‘climate survey’ technique is a dangerous precedent as a matter of employment rights and as a threat to academic freedom. It’s a thinly veiled version of the heckler’s veto.”)] - The Snuggle is real: very long list of demands by Sarah Lawrence students occupying campus building includes consistent access to detergent and fabric softener [Sarah Lawrence Phoenix; Pamela Paresky, Psychology Today] Rather more seriously, the students demand the college reconsider the tenure status of a professor who published a mildly conservative op-ed in the NYT [Colleen Flaherty, Inside Higher Ed]
- Even if occasionally subverted by dishonest actors, standardized tests remain the gold standard among transparent, objective ways to improve the accuracy of college success prediction [Jenna A. Robinson, Martin Center]