“Texas’s giant legal reform“, Jun. 18-19, 2003.

“To tame Madison County, pass the Class Action Fairness Act“, Jun. 12-15, 2003; “‘Reforming class action suits’” (Class Action Fairness Act), Apr. 25-27, 2003.

“Judge kicks class-action lawyers off case” (H&R Block), May 15, 2003.

“Class action lawyer takes $20 million from defendant’s side“, Mar. 15-16, 2003.

“FBI probes Philadelphia’s hiring of class action firm“, Jan. 31-Feb. 2, 2003.

“Ninth Circuit panel sniffs collusion in bias settlement fees“, Dec. 16-17, 2002.

Auctions: “Third Circuit cuts class action fees“, Sept. 25-26, 2001; “Letter to the editor” (competitive bidding for class representation), Jun. 13, 2001 (& Oct. 1-2, 2002). 

“7,000 missing colors, many of them crisply green“, Aug. 29, 2002. 

“‘Junk-fax’ suit demands $2 trillion“, Aug. 26, 2002; “Junk-fax litigation: blood in the water“, July 24, 2001; “Junk-fax bonanza“, March 27, 2001; “Junk fax litigation, continued“, March 3-5, 2000; “In Houston, expensive menus” (unsolicited faxes), Oct. 22, 1999. 

“Penthouse sued on behalf of disappointed Kournikova-oglers“, Jun. 3-4, 2002. 

“The mystery of the transgenic corn“, May 14-15, 2002. 

“Editorial-fest“, Mar. 11, 2002; “Washington Post on class action reform” (good editorial), Aug. 29-30, 2001; “Actions without class” (Washington Post editorial), Dec. 2, 1999. 

“The thrill of it all: plaintiffs win 28 cent coupon“, Feb. 27-28, 2002. 

“‘Toyota buyers’ suit yields cash — for lawyers’“, Feb. 18-19, 2002; “Golf ball class action” (Acushnet Co.), Nov. 18-19, 1999; “Class action coupon clippers” (Washington Post on settlement abuses), Nov. 15, 1999. 

“‘Congress looks to change class action system’“, Feb. 11-12, 2002; “‘They’re making a federal case out of it … in state court’“, Nov. 7-8, 2001. 

“Selling out the class?” (allegations of collusive settlement in H&R Block case), April 5, 2001 (& see Dec. 3). 

“Swiss banks vindicated“, Nov. 1, 2001. 

Letter to the editor (lawyers’ own incremental billing disclosed?), Oct. 22, 2001 (& see Dec. 3). 

“Counterterrorism bill footnote” (forum shopping), Oct. 16, 2001; “Best little forum-shopping in Texas” (class actions make their way to Texarkana), August 27, 1999. 

“Employment class actions: EEOC to the rescue“, Sept. 10, 2001. 

“220 percent rate of farmer participation” (USDA black farmer settlement), July 25, 2001.

“The rest of Justice O’Connor’s speech“, July 6-8, 2001. 

“Blockbuster Video class action“, June 11, 2001 (& see July 3-4 (Vince Carroll column)). 

“Letter to the editor” (First USA credit cards), June 13, 2001; “Bank error in your favor” (credit card holders), Sept. 27-28, 2000; & letter to the editor, Sept. 3, 2001. 

“Ghost blurber case“, June 12, 2001. 

“NFL satellite ticket class action“, June 5, 2001 (& update Aug. 20-21: court disallows settlement). 

“Insurance class settlement scuttled“, Feb. 26, 2001. 

“Florida lawyers’ day jobs, cont’d” (hotbed of class action filing), Dec. 11-12, 2000; “Florida’s legal talent, before the Chad War” (Florida Marlins ticketholders), Dec. 8-10, 2000. 

“Obese soldiers class action“, Nov. 10-12, 2000. 

“Sweepstakes, for sure” (American Family Publishers), Oct. 20-22, 2000; “Update: Publishers’ Clearing House case“, Feb. 29, 2000. 

“Courtroom crusade on drug prices?“, Oct. 19, 2000. 

“Class actions: are we all litigants yet?“, Aug. 23-24, 2000. 

Coke: “Class-action lawyers to Coke clients: you’re fired“, July 21-23, 2000; “‘Coke plaintiff eavesdrops on lawyers; case unravels’” (what do lawyers tell each other after they think their clients have hung up on the conference call?), July 19-20; “‘Ad deal links Coke, lawyer in suit’” (Willie Gary, suing Coke, cuts lucrative ad deal with it), May 11, 2000.

“Target Detroit” (lawyers countersue DaimlerChrysler and exec personally), July 19-20, 2000; “Turning the tables” (DaimlerChrysler sues class action lawyers), Nov. 12, 1999. 

“Class-action assault on eBay“, July 13, 2000. 

“AOL ‘pop-up’ class action” (ads said to be unfair), June 27, 2000. 

“Rise, fall, and rise of class actions” (enormous increase in filing rates in past decade), Mar. 10-12, 2000. 

“Criticizing lawyers proves hazardous” (columnist Bill McClellan makes fun of class-action attorneys, they sue him for libel), Nov. 4, 1999 (update Nov. 30: he criticizes them again, though suit is still pending); “Update: Publishers’ Clearing House case” (judge approves settlement including legal fee request; agreement reached to end libel suit), Feb. 29, 2000. 

“Secrets of class action defense“, Feb. 25, 2000; “Mobile Register probes class action biz” (BancBoston and other mortgage escrow cases), Feb. 7, 2000. 

“AOL upgrade’s sharp elbows“, Feb. 12-13, 2000. 

“Weekend reading: columnist-fest” (Laura Pulfer on suit against Ralph Lauren outlet stores; Alex Cockburn on Swiss banks), Feb. 5-6, 2000. 

“From our mail sack: unclear on the concept“, Jan. 28, 2000. 

“Santa came late” (suit against Toys-R-Us for missing Christmas delivery), Jan. 19, 2000. 

“Pokemon litigation roundup“, Jan. 10, 2000;  “Pokemon cards update“, Oct. 13, 1999; “Pokemon-card class actions“, Oct. 1-3, 1999

“Expert witnesses and their ghostwriters” (life insurance class actions), Jan. 4, 2000. 

“Lawyers for famine and wilderness-busting?” (anti-biotech), Jan. 3, 1999. 

“Class action toy story” (antitrust), Dec. 29-30, 1999. 

“‘In race to sue Microsoft, some trip’” (lawyers inadvertently copy details of pleadings in earlier cases), Dec. 23-26, 1999. 

“Rolling the dice, cont’d” (suits over online gambling), Dec. 7, 1999 (earlier report, Aug. 26). 

“Beware of market crashes” (class action sought against E*Trade for alleged computer-related trading losses), Nov. 26-28, 1999. 

“Are they kidding, or not-kidding?” (proposals for suits against makers of fattening foods, losing sports teams), Nov. 15, 1999. 

“Public by 2-1 margin disapproves of tobacco suits” (if class actions are filed on behalf of the public, why don’t they reflect public opinion?), Nov. 5-7, 1999. 

“Demolition derby for consumer budgets” (class action against State Farm over generic crash parts), Oct. 8, 1999. 

“Power attracts power” (Boies joins anti-HMO effort), Sept. 30, 1999; “Impending assault on HMOs“, Sept. 30. 

“$49 million lawyers’ fee okayed in case where clients got nothing” (secondhand smoke action), Sept. 28, 1999; “Personal responsibility takes a vacation in Miami” (tobacco class-action verdict), Jul. 8, 1999.

“Judge throws out four WWII reparations lawsuits“, Sept. 20, 1999. 

“Tainted cycle” (Milwaukee taxpayers sue themselves), Sept. 2, 1999. 

“Three insurers sued for $100 million” (how the press covers class action announcements), Aug. 20, 1999.

Resources on class actions are found at many different places on Overlawyered.com.  For example, most of the massive lawsuits filed against individual industries over personal injury to classes of consumers are covered on pages specific to the subject matter of the cases, such as the pages on firearms litigation, tobacco litigation, managed-care litigation, breast implant litigation, product liability, and so forth. 

This page assembles resources on class actions as a procedural device and as an institution.  Among topics covered are the unique role in this area of an “entrepreneurial” plaintiff’s bar that decides on its own behalf who and how to sue and lines up clients as needed; the history of the device and the reasons why it is either sharply limited or virtually unknown in the courts of other industrial democracies; the distinctive ethical problems that arise because of the extreme difficulty of policing lawyers’ faithfulness to the interests of the absent class; and the operations of the class action “industry” in the areas in which it has been a familiar part of the American legal landscape for decades, namely shareholder litigation and class actions over consumer and antitrust grievances aggregating large numbers of (usually smallish) claims. 

Background — procedural history, ethical issues:

Overlawyered.com‘s editor wrote about class actions (as well as “champerty and maintenance”, the “invisible-fist theory”, and other topics) in Chapter 3 of his book The Litigation Explosion; an excerpt is online. 

Chapter 5 (“The New Town Meeting”) of Peter Huber’s book Liability: The Legal Revolution and Its Consequences contains a valuable discussion of the class action format, particularly as it applies to the so-called toxic tort; it is unfortunately not online. 

Lawrence Schonbrun, a Northern California attorney who has developed a specialty in filing challenges to excessive class action attorneys’ fee requests, wrote a prescient article in 1996 on “coupon deals”, “separately negotiated” fees from defendants, and other innovative ways the class action bar was finding to escape scrutiny of its remuneration.  (“Class Actions: The New Ethical Frontier“) 

Shareholder litigation:

A starting point for research on this topic is Stanford Law School’s comprehensive Securities Class Action Clearinghouse.  See also the commentaries on this site. 

In Felzen v. Andreas (1998), Judge Frank Easterbrook of the Seventh Circuit wrote that “Many thoughtful students of the subject conclude, with empirical support, that derivative actions do little to promote sound management and often hurt the firm by diverting the managers’ time from running the business while diverting the firm’s resources to the plaintiffs’ lawyers without providing a corresponding benefit.”  He cited a long list of scholarly articles including Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 Stanford L. Rev. 497 (1991), which found that the “structural characteristics common to securities class actions . . . combine to produce outcomes that are not a function of the substantive merits of the case.” and Roberta Romano, The Shareholder Suit: Litigation without Foundation?, 7 J. L. Econ. & Organization 55 (1991), which examined 39 shareholder suits filed between the late 1960s and 1987 and concluded that “shareholder litigation is a weak, if not ineffective, instrument of corporate governance.” 

In 1995 Congress passed the Private Securities Litigation Reform Act, which aimed to rectify some of the worst abuses in the field.  This client memo from Fried, Frank describes the wider powers institutional investors obtained under the act to influence litigation going on purportedly in the name of investors such as themselves. 

In Polar International Brokerage v. Reeve, a New York federal judge rejected a proposed class action settlement and request for $200,000 in attorneys’ fees, saying it offered shareholders “nothing of real value”.  (Deborah Pines, National Law Journal, May 24, 1999). 

Although the securities bar frequently alleges that well-known companies in Silicon Valley and elsewhere are run by crooked managements that fleece their shareholders, they ironically turn out to keep a lot of their (very substantial) stock holdings invested in the very same companies. (Paul Elias, San Francisco Recorder, June 8, 1999).  Among the reasons is that in many cases they have accepted stock as payment for dropping earlier legal actions. 

Other class action resources:

The Federalist Society publishes a Class Action Watch newsletter.  The first issue is in conventional web-page format. The second issue is a PDF document (Adobe Acrobat needed to view; get it here). 

Among the better-known law firms representing class action plaintiffs are Milberg Weiss Bershad Hynes & Lerach LLP, Lieff, Cabraser, Heimann & Bernstein LLP, Cohen Milstein, Hausfeld & Toll, Krause & Kalfayan, and Barrack, Rodos & Bacine. 

Actuary Jack Patterson has written an account for a plaintiff’s lawyer readership of class actions against life insurance companies, one of the big practice areas of the 1990s. 

The class action bar also files many antitrust suits on behalf of large groups of consumers or business purchasers.  The Antitrust Policy web site collects many worthwhile resources on antitrust law.

Filed under: antitrust, Bill Lerach, Bill McClellan, champerty, Chrysler, class actions, copyright, Detroit, forum shopping, Houston, libel slander and defamation, Madison County, Melvyn Weiss, Milberg Weiss, Philadelphia, reparations, State Farm, Switzerland, The Litigation Explosion, tobacco, Toyota, Willie Gary

“Hiker cuts off use of his name“, Jun. 4-6, 2003.

“Start that movie on time, or else“, Feb. 20, 2003 (& Jan. 10).

“Fair housing law vs. free speech“, Jan. 31-Feb. 2, 2003.

“Campaign regulation vs. free speech“, May 18-21, 2000 (& Oct. 4-6, 2002). 

“‘Greek net cafes face ruin’” (ban on computer games), Sept. 23, 2002.

“Penthouse sued on behalf of disappointed Kournikova-oglers“, Jun. 3-4, 2002. 

“Privacy claim by Bourbon Street celebrant“, Sept. 28-30, 2001 (& Mar. 6, 2002, Apr. 15, 2002). 

“Radio daze” (Clear Channel hardball), Aug. 31-Sept. 2, 2001. 

“The document-shredding facility at Pooh Corner” (Disney dispute with rights holders), Aug. 24-26, 2001. 

“‘Internet Usage Records Accessible Under FOI Laws’” (schools case), Nov. 14, 2000. 

“Collateral damage in Drug War” (customer records of Denver’s Tattered Cover bookstore subpoenaed), April 28-30, 2000 (update, Oct. 27-29: judge orders records handed over); “‘Power lawyers may sue for reparations’” (sue textbook makers over representation of blacks?), Oct. 25, 2000; “Baleful blurbs” (book publishers sued over errors in cover copy), Nov. 16, 1999. 

“Illegal to talk about drugs?“, May 30, 2000. 

“Dusting ’em off” (laws against profanity in public), May 18-21, 2000. 

“Thought for the day” (Posner on censorship), April 25-26, 2000. 

“Verdict on Consumer Reports: false, but not damaging“, April 10, 2000; “Costly state of higher awareness” (libel suit, author Deepak Chopra), March 9, 2000.

“Mormon actress sues over profanity” (says Univ. of Utah theater dept. insisted she utter foul language in scripts), Jan. 24, 2000.

“FCC as Don Corleone“, Oct. 5-6, 1999.

“The shame of the ACLU” (Aguilar v. Avis: ACLU intervenes on anti- free-speech side), Sept. 7, 1999.

“Weekend reading” (tabloid law), Aug. 7-8, 1999.

“The Law on Trial“, Wall Street Journal, October 14, 1997 (review of Beyond all Reason by Daniel Farber and Suzanna Sherry). 

“Shut Up, They Explained” (“zero-tolerance” harassment policies), Reason, June 1997. 

“Judge Dread” (on Robert Bork, Slouching Toward Gomorrah), Reason, April 1997.

Filed under: ACLU, advertising, Australia, Bill McClellan, broadcasters, Chrysler, Clear Channel, copyright, Dallas, deep pocket, Denver, fair housing, free speech, Italy, John Stossel, libel slander and defamation, Madison County, music and musicians, newspapers, Norway, online speech, reparations, Sweden, trademarks, Utah

“Intel sued in notorious county“, Aug. 30-Sept. 2, 2002. 

“Sic ’em on Segway“, Aug. 1, 2002; “Segway, the super-wheelchair and the FDA“, Dec. 12, 2001. 

“‘Every Man a Cyber Crook’“, Feb. 6-7, 2002. 

“Draconian hacker penalties?“, Sept. 28-30, 2001. 

“‘Lawsuit demands AOL stop anti-Islamic chat’“, Sept. 3, 2001; “EEOC: unfiltered computers ‘harass’ librarians“, June 4, 2001. 

“Dotcom wreckage: sue ’em all“, Aug. 7-8, 2001. 

“Brace for data-disaster suits” (hacker attacks, viruses), May 29, 2001; “Suing Nike for getting hacked“, July 12, 2000; “Deep pockets blameable for denial-of-service attacks?“, Feb. 26-27; “Antitrust obstacles to hacker defense“, Feb. 10-11, 2000. 

“Anonymity takes a D.C. hit“, May 21, 2001. 

“Techies fear Calif. anti-confidentiality bill“, May 15, 2001. 

“Internet service disclaimers“, Dec. 13-14, 2000. 

“‘Stock Options: A Gold Mine for Racial-Discrimination Suits?’“, Dec. 11-12, 2000; “Feds’ mission: target Silicon Valley for race complaints“, Feb. 29, 2000. 

Labor law: “Digital serfs?“, Jan. 26-28, 2001; “Goodbye to gaming volunteers?“, Sept. 12, 2000 (& update Oct. 3); “Why rush that software project, anyway?” (California overtime law), March 29; “Microsoft temps can sue for stock options“, Jan. 11, 2000 (& see Feb. 17; letters, Dec. 20); “‘Click here to sue!’” (AOL volunteer suit), Sept. 7, 1999; “Click here to sue!” (employee misclassification suits), Aug. 19, 1999. 

“Tax software verdict: pick a number” (Mississippi verdict; government contracting), Sept. 5, 2000. 

“Class-action assault on eBay“, July 13, 2000 (update Nov. 22-23; class action certified). 

“‘Parody of animal rights site told to close’“, July 3-4, 2000 (& Aug. 29-30, 2001). 

“A Harvard call for selective rain” (some Internet regulation, not too much), July 3-4, 2000. 

“AOL ‘pop-up’ class action” (ads said to be unfair), June 27, 2000. 

“Harassment-law roundup” (Internet startups vulnerable), May 4, 2000; “Dot-coms as perfect defendants” (sex harassment suits), Jan. 17; “Harassment-law roundup” (Juno cases), Feb. 19-21, 2000.. 

“Silicon siege” (Ebay antitrust investigation, other cases; T.J. Rodgers warns against rapprochement with Washington), April 7-9, 2000. 

“Terminix vs. consumer critic’s website“, March 31-April 2, 2000. 

“Music stores sue Sony” (objecting to company-store hyperlinks included with CDs), Feb. 25, 2000. 

“Silicon siege” (AOL 5.0 upgrade), April 7-9, 2000; “AOL upgrade’s sharp elbows“, Feb. 12-13, 2000. 

“Green cards gather moss” (immigration delays), Feb. 4, 2000. 

“Santa came late” (Toys-R-Us e-tailing shortfalls), Jan. 19, 2000; “Beware of market crashes” (online brokerages “probably” liable for computer outages), Nov. 26-28, 1999. 

“Your fortune awaits in Internet law” (cybersquatting), Jan. 13-14, 2000; “Time to rent a clue” (domain name disputes), July 28, 1999. 

“Rolling the dice, cont’d” (suits over online gambling), Dec. 7, 1999 (earlier report, Aug. 26). 

“Mounties vs. your dish” (Canadian satellite law), Nov. 1, 1999. 

“Founders’ view of encryption“, Oct. 29, 1999. 

“In Houston, expensive menus” (junk faxes class action), Oct. 22, 1999 (update April 3, 2000: claims thrown out). 

“Foam-rubber cow recall” (Gateway Corp. premium), Oct. 22, 1999. 

“Feds: dissent on smoking = racketeering” (suit deems website advocacy unlawful), Sept. 23, 1999. 

“Effects of shareholder-suit reform“, Sept. 22, 1999. 

“Our award-winning errors” (this site’s 404 message), Aug. 14-15, 1999. 

“Weekend reading” (word counts on litigators’ briefs), Aug. 7-8, 1999. 

“Censorship via (novel) lawsuits” (lawyers blame school shootings on video games, Internet sites), July 22, 1999. 

“Thought for the day” (Cravath’s Robert Joffe on foreign companies’ unwillingness to let American law govern contracts), July 11, 1999.

Filed under: animal rights, antitrust, Canada, copyright, deep pocket, eBay, Houston, Italy, libel slander and defamation, Mississippi, Sweden, technology, trademarks

AVweb includes articles by its law columnist, Phillip J. Kolczynski, on such topics as product liability, liability for homebuilt aircraft, and aircraft owner liability. 

Walter Olson, “Kingdom of the One-Eyed” (pilot vision and ADA), Reason, July 1998. 

Walter Olson, “Life, Liberty, and the Pursuit of a Good Beer” (alcoholic pilot and ADA), Washington Monthly, September 1997.

Filed under: airlines, Alaska, assumption of risk, Australia, aviation, Canada, Denver, France, Germany, libel slander and defamation, Pittsburgh, Switzerland, zero tolerance

“Thanks for the memories” (coaching of witnesses), June 1998 (& subsequent letters exchange with William Hodes) 

“Tobacco Analysts Meet the Plaintiff’s Lawyers” (abuse of pretrial discovery), Wall Street Journal, August 30, 1995. 

“Juries on Trial“, review of The Jury by Stephen J. Adler and We the Jury by Jeffrey Abramson, Reason, February 1995. 

“Sue City: The Case Against the Contingency Fee“, excerpt from The Litigation Explosion, Policy Review, Winter 1991 [in two parts] [part one] [part two] 

“Dentists, Bartenders, and Lawyer Unpopularity“, Manhattan Institute Civil Justice Memo #37, April 1999. 

“Lawyers with Stethoscopes: Clients Beware“, Manhattan Institute Civil Justice Memo #26, June 1996. 

“Taming the Litigators: Why Not More Disclosure?“, Manhattan Institute Civil Justice Memo #24, February 1996.

ABA Center for Professional Responsibility
Overview — Rules of Lawyer Conduct
U.S. Judges Code of Conduct
California Rules of Professional Conduct
D.C. Rules of Professional Conduct

Some online articles of interest:

James McCauley, “The Ethics of Making Legal Services Affordable…” (Virginia bar; discusses unauthorized practice, pro se litigation) 

Rep. Chris Cox, Testimony on tobacco settlement (1997)

Lawrence Schonbrun, “Class Actions: The New Ethical Frontier” (Manhattan Institute, 1996)