As some of us predicted years ago, global litigation continues to expand in both class actions and other forms of collective actions.  Now, there’s a new tool to help litigations better assess global possibilities. The tool is described as follows in a November 22, 2017 post at Global Legal Post:

“Baker McKenzie has launched an interactive class action tool which provides information ‘at a glance’ on the key characteristics of collective action mechanisms in more than 25 countries

More on the tool can be found at aBaker web page, which is here.

Thanks to the seldom bashful Seventh Circuit, Ted Frank has toppled the stupid Subway settlement. Kudos to Ted, on this one (as opposed to some of his other actions). I for one am very tired of receiving useless notices in securities class actions where in fact I was ripped off by a company’s lack of disclosure, but the class relief is illusory and only the lawyers (both sides) make out well. The Subway opinion is open access online here.

A couple of key quotes are set out below:

“After the settlement, just as before, the rare sandwich that falls short of the full 12 inches will still provide the customer the same amount of food as any other.”  

“After the settlement — despite the new measuring tools, protocols, and inspections — there’s still the same small chance that Subway will sell a class member a sandwich that is slightly shorter than advertised.”

“The injunctive relief approved by the district judge is utterly worthless.”

 

Despite the many who said Europe would never allow class actions, it has happened, in varying ways and to varying degrees. The big news of late is a UK ruling disallowing an opt-out class action. The ruling, and other UK developments, are summarized in a July 23,  2017 post at D & O Diary. The first two paragraphs are pasted below; the entire article (and the opinion) should be read.

“The highest-profile attempt to utilize the new U.K. regime for consumer class actions has come to a grinding halt. The case involved a claim alleging that MasterCard’s fee structure had resulted in overcharges to tens of millions of U.K. consumers. On July 21, 2017, the Competition Appeal Tribunal, newly re-organized to oversee the consumer class action regime, declined to grant the necessary collective proceedings order that would have allowed the action to go forward. The tribunal’s ruling is highly fact-specific and its decision to decline the collective proceedings order very much reflects the specific features of the claims against MasterCard, but the ruling nevertheless does raise concerns about the viability of the class action regime and its attractiveness to prospective claimants in other cases. A copy of the Tribunal’s July 21, 2017 order can be found here.

Background

In 2015, the U.K. Parliament enacted The Consumer Rights Act of 2015, which represented a comprehensive overhaul of the U.K.’s consumer protection and unfair trade practices laws. Among many other changes, the Act introduced an “opt-out” collective action mechanism. In particular, the Act broadens the jurisdiction of the Competition Appeal Tribunal, including the introduction of procedures for the tribunal to hear damages claims on an “opt-out” collective action basis. The Act also includes provisions for collective settlements and collective redress schemes.”

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With so many executive orders being challenged in many forums, keeping track of the events presents challenges similar to the challenges in tracking events in mass tort litigation. Below, a note on the best resource I know of for tracking the civil rights cases. Guest posts are welcome if others know of better resources.

A University of Michigan law school web site provides open and timely access to the papers from the ongoing State of Washington case against Trump. That’s the case which produced the national  injunction of the executive order on Trump’s Executive Order more commonly known as the Muslim ban.  The web site is called the Civil Rights Litigation Clearing House. See https://www.clearinghouse.net/index.php.

 The group appears to be collecting papers from all the executive order cases. As an Illini, it pains me to say it, but: Go Blue! Hopefully lawyers for all sides agree that open and timely access to information is critical for people to see the true picture instead of having to rely on the media.

This morning, the 9th Circuit refused DOJ’s emergency request to end the national injunction.

The government already filed its paper seeking a stay. The court set a briefing schedule that has a brief being filed tonight (Sunday) by the State of Washington at 1 minute before midnight (perhaps a Cinderella story :)).  Judging by the oral argument before the district judge, the brief may well include some of Trump’s tweet and other statements which were argued as showing racial bias and hatred.

The government replies in a brief due Monday at 3pm Pacific. See https://www.clearinghouse.net/detail.php?id=15606

No time set for a ruling.

The growing breadth and depth of global class actions is explored in a September 20, 2016 post at D&O Diary. Riffing off of Professor Coffee’s recent article, Kevin LaCroix pulls together several of his past posts, along with other data and updates, including some interesting observations about class action developments in Asia, as well as Canada and Australia. Beyond pointing out the facts, he includes the following two notable observations:

“Discussion

Coffee’s review of these issues is entirely consistent with my own analysis in several prior blog posts. One particular aspect of Coffee’s discussion that I found particularly apt is his discussion of how all of these things have come together despite what is perhaps an almost universal disdain outside the U.S. for U.S.-style litigation, particularly U.S. class action litigation. I am fortunate to have been able to travel around the world for various professional meetings in recent years. Often I am the only American in the room. I have become quite accustomed to hearing the locals express deep distain for the U.S. litigation model. But what has happened over the years is that slowly but surely despite the disdain for U.S. litigation procedures, many countries have adopted procedural reforms that reflect aspects of U.S. style litigation, even U.S. class action litigation. Often these reforms arise when local investors aggrieved by a corporate scandal push for legislative reform so that they have some procedural mechanism for redress.

Professor Coffee correctly notes that role that entrepreneurial U.S. plaintiffs’ lawyers have played in driving some of these changes and in establishing procedural pathways to be used in pursuing collective investor claims. He also alludes to the role of third-party litigation funding, but in my view the role of third-party litigation funding is even more significant than Coffee’s account suggests. Coffee’s article does not even mention the rise of securities class action litigation in Australia and Canada, the two countries other than the U.S. where class action litigation is most common. In both of those countries, third-party litigation funding has played an indispensable role in the rise of class action litigation (and U.S. plaintiffs’ law firms have not played nearly as critical of a role). Many recent litigation initiative arising out of high profile scandals have also been led by litigation funding firms (refer here, for example).”

It’s been obvious for years that lawyers, litigation funders and MBAs could and would engineer global class actions almost as well (maybe better) than financial engineers would engineer tax avoidance. And Morrison laid much of the groundwork back in 2009, which some of us saw coming.

Global securities class actions are now very real and powerful.  Professor John Coffee lays out some of the engineering of global class actions in a wonderfully succinct new article of September 19, 2016 on Columbia’s Blue Sky Blog.

Napoli Shkolnik has pushed out a new splash with a class action water contamination suit in NY involving a Grumman facility.  The introduction to its September 13, 2016 press release explains:

“NEW YORK, NY–(Marketwired – September 13, 2016) – Napoli Shkolnik PLLC has filed a class action lawsuit against Northrop Grumman Corporation and Northrop Grumman Systems Corporation (collectively “Grumman”) on behalf of fifteen Bethpage residents who have been injured by a massive toxic plume emanating from Grumman’s operations. For the past sixty years, Grumman has caused the release of numerous toxic contaminants, including trichloroethylene (“TCE”), tetrachloroethylene (“PERC”), and other volatile organic compounds (“VOCs”), as well as polychlorinated biphenyls (“PCBs”), arsenic, cadmium, chromium, lead, and mercury into the ground at its facilities. Grumman never timely warned the surrounding community of the contamination and has continuously failed to remediate the contamination.”

 

Excluding Justices Thomas and Alito,  SCOTUS this week not surprisingly concluded that statistical proof can be used in class actions to prove up damages in at least some cases, even if there are some differences between class members. As presented by SCOTUSblog, the issues in Tyson were:

“Issue: (1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.”

This Tyson Foods outcome should not surprise anyone who thought beyond the narrow bounds of partisan thinking. After all, clinical trials for lifesaving drugs, for example, often succeed or fail based on statistics, even though it is well known that the people in the trial are individually variable humans.

The Tyson case also presented an element of  “be careful what you wish for.”  Imagine, for example, the plight of defendant companies if they were barred from using statistical proof (i.e. epidemiology) to defeat claims with a relative risk of below 2.0 (to date, most such calculations defy reality by assuming all humans are the same, which we know is not true).

The headline is the view presented in an October 31, 2014 post by Paul Karlsgodt at the ClassActionBlawg.com. The point he makes in general is that defendants seldom like discrete issue class actions, but the discrete issue class action cases are making a come back after they fell out of favor in the mid 1990s, as described in a partisan post in October 1995 from the Manhattan Institute regarding Judge Posner’s opinion in the Rhone Poulenc blood contaminant litigation. That ruling was a turning point in the move away from discrete issue class actions.  As Mr. Karlsgodt points, out, however, Judge Posner recently wrote a ruling that identifies the prospects for useful discrete issue class actions.

A take away? Legal rules change, litigation cycles change, and judicial and academic sentiments change, all influenced by developments in society and business models, among other variables.