Alison Frankel

Judge Charles Breyer, MDL disruptor?

January 21, 2016

(Reuters) – These are early days in the consolidated consumer litigation over Volkswagen’s emissions cheating software, but U.S. District Judge Charles Breyer of San Francisco has already shown lawyers that he – and not the class action bar – is firmly in charge. I have a strong suspicion that the judge will continue to ignore the usual MDL dance steps as he nears a decision on which plaintiffs’ lawyers will lead the case.

Why class action bar’s SCOTUS win in Campbell-Ewald could be tenuous

January 20, 2016

(Reuters) – A majority of the U.S. Supreme Court showed Wednesday that it knows exactly what defendants have been up to in class actions involving relatively small damages for individual class members. In the court’s opinion in Campbell-Ewald Company v. Gomez, five justices said defendants can’t squelch class actions by offering full judgment to named plaintiffs and asserting the case is therefore moot, even if the named plaintiff rejects the offer.

Firms in new Company Doe case v. CFPB ask judge to keep identities secret

January 19, 2016

(Reuters) – Remember the 4th U.S. Circuit Court of Appeals’ stirring “Company Doe” opinion in April 2014? A business later revealed to be the California baby products maker ErgoBaby had sued anonymously to block the Consumer Product Safety Commission from reporting what ErgoBaby considered an inaccurate and potentially damaging incident report on the CPSC’s public database. The 4th Circuit said it understood why ErgoBaby didn’t want its name revealed in a case that was, after all, brought to protect the company’s public image. But the appellate panel ruled the First Amendment right of access to court records “does not yield” to a corporation’s fears about its reputation.

Can Islamic State victim’s widow win suit against Twitter?

January 14, 2016

(Reuters) – If the widow of a U.S. government contractor killed in a 2015 Islamic State shooting in Amman, Jordan, wins her newly filed Anti-Terrorism Act suit against Twitter, there could be enormous consequences for social media sites. As my colleague Jon Stempel reported Thursday, extremist groups are well known to use the Internet to recruit new members and plan attacks. Liability to victims of these attacks – and the treble damages available under the ATA – could mean significant exposure and reputational harm for sites frequented by extremists.

9th Circuit panel stands up for open courts in Chrysler unseal opinion

January 13, 2016

(Reuters) – In my business, every document filed under seal is a provocation. Obviously, protective orders are sometimes the only way businesses can shield trade secrets and people can preserve their privacy, but as the U.S. Supreme Court said in the 1978 decision Nixon v. Warner Communications, the public’s right of access to court records is deeply rooted in common law. Confidentiality should a rare exception, not a reflexive default.

Supreme Court passes on another dormant Commerce Clause test

January 12, 2016

(Reuters) – The U.S. Supreme Court on Monday declined to review a 2015 ruling from the 9th U.S. Circuit Court of Appeals that struck down part of a California law granting resale royalties to fine artists. The artists who filed a petition for certiorari pitched the case as a chance for the justices to rethink the court’s 1989 precedent on the constitutionality of state laws that impact commerce in other states but are not discriminatory or burdensome. But the Supreme Court is in no rush to accept that invitation. In fact, the justices just last month rejected a request to take up a 10th Circuit case that raised the same issue.

Delaware prosecutor puts another dent in banks’ ‘too big to jail’ armor

January 7, 2016

(Reuters) – Late Wednesday, Delaware U.S. Attorney Charles Oberly announced the indictment of Wilmington Trust, which is accused of hiding failed loans in its commercial real estate portfolio in 2009 and 2010. The bank’s supposed deception of regulators and investors propped up the bank’s shaky financials as it undertook a $274 million stock offering in February 2010 to repay money it had accepted from the U.S. government’s Troubled Asset Relief Program.

How Fitbit heart-rate class action intends to bust arbitration agreement

January 6, 2016

(Reuters) – Class action lawyers didn’t need the New York Times’ epic series on mandatory arbitration to alert them to the impact of corporate contracts requiring consumers to waive their right to sue. Plaintiffs’ lawyers have been engaged for years in hand-to-hand battles over arbitration clauses, in a war to prove class action waivers are unconscionable. Unfortunately for them, the U.S. Supreme Court has rendered the campaign almost entirely unsuccessful, despite overwhelming statistical evidence that class actions deliver more cash to more consumers than individual arbitrations.

Fight over Cosby wife’s evidence raises novel question: Are depositions ‘testimony’?

January 5, 2016

Camille Cosby, the wife and business manager of comedian and accused serial sexual assaulter Bill Cosby, won’t be deposed Wednesday after all.

The Supreme Court’s next big class action controversy: ascertainability

January 4, 2016

(Reuters) – A confession: When I speculated last October that the hot-button issue of class action ascertainability – the process of figuring out just who is a member of a plaintiffs’ class – could arise at the U.S. Supreme Court in Tyson Foods v. Bouaphakeo, I was wrong. The Tyson case, as you will recall, was at its heart a dispute over the certification of a class of meat-processing plant workers who ended up winning a $6 million wage-and-hour judgment against Tyson. Tyson’s lawyers at Sidley & Austin wanted to inflate the case into an inquiry over the constitutionality of certifying classes that may contain uninjured class members. Tyson’s final Supreme Court brief insisted that at the very least, trial courts should require class action lawyers to offer a mechanism for culling plaintiffs who haven’t been injured, which is exactly what ascertainability literalists demand.