(Reuters) – The plaintiffs’ firm Lieff Cabraser Heimann & Bernstein, working with regular appellate counsel Samuel Issacharoff of New York University School of Law, submitted a compelling petition last week at the 11th U.S. Circuit Court of Appeals, asking the appellate court to reconsider a three-judge panel’s ruling in Graham v. R.J. Reynolds. In that April 8 decision, the 11th Circuit held that Florida smokers’ strict liability and negligence claims against tobacco companies are implicitly preempted because Congress has imposed federal regulation on cigarettes but has not banned them. Lieff Cabraser’s brief argues not only that the 11th Circuit opinion is at odds with a previous 11th Circuit decision based on the same basic facts and case law but that it’s also contrary to U.S. Supreme Court precedent.
It is the rare securities fraud class action that goes to trial. Typically, once shareholders have survived a motion to dismiss and won certification of a class, defendants pull out their wallets. Settlements may not come until summary judgment motions are decided and a mediator has entered the case, but they are a near certainty for class actions that get past the preliminaries. Only a vanishingly small number of securities fraud cases go to trial.