Class Action Litigation

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Antonin Scalia

U.S. Supreme Court Justice Antonin Scalia’s death on Saturday has already triggered concerns about the possible outcome of the numerous important cases now pending before the Court, and has further agitated an already tumultuous Presidential election campaign. The furious debate that is already well underway about the nomination of Justice Scalia’s successor could be one of the key issues in the current campaign, and perhaps beyond. While these controversies are likely to continue and to dominate the headlines for some time to come, a different process will also be taking place, and also will likely continue for some time – that is, the debate over Justice Scalia’s legacy.
Continue Reading Justice Scalia’s Business Law Legacy

increasingOn the panel in which I participated during last week’s PLUS D&O Symposium, one of the important topics we discussed was the question of coverage under a D&O insurance policy for claims under the Telephone Consumer Protection Act, a topic about which I have previously written on this blog. That a once-obscure statute like the TCPA has become an important topic of conversation is no accident. The fact is that the number of TCPA actions filed has absolutely exploded, as detailed in a recent study published by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.
Continue Reading There’s a Reason You Are Suddenly Hearing About the TCPA Everywhere You Go

supremesAfter the Supreme Court issued its decision last week in Campbell-Ewald Co. v. Gomez (here), in at least some quarters the story about the decision spread under the heading that the Court had issued an important Telephone Consumer Protection Act ruling. The case in which the Court issued its decision does indeed involve a TCPA damages claim. However, the Court’s analysis did not address the plaintiff’s TCPA claim as such. The Court’s ruling – which addressed the issue of whether or not an unaccepted offer of judgment moots a class action plaintiff’s claim – is nevertheless important.

As discussed below, the Court’s ruling in the Campbell-Ewald case sets the stage for further litigation on the question of whether, by taking a different approach than the defendant did here, class action defendants might yet be able to moot a class action suit by “picking off” the named plaintiff’s claim. The Court’s decision in the Campbell-Ewald case may also prefigure the Court’s consideration of standing issues in the Spokeo case, another case that raises basic justiciability issues and that remains pending on the Court’s docket for this term.  
Continue Reading Why the Supreme Court’s Recent Class Action Decision is Important and What May Be Coming Next

daumierOne of the legal issues that attracts continuous  vigorous debate is the question of whether or not class actions in general, and securities class actions in particular, produce a social benefit sufficient to justify their sometimes enormous costs. This question receives an interesting and readable analysis in an article in the November 19, 2015 issue of The New York Review of Books entitled “The Cure for Corporate Wrongdoing: Class Actions vs. Individual Prosecutions” (here) in which Southern District of New York Judge Jed Rakoff reviews Columbia Law Professor John Coffee’s new book, Entrepreneurial Litigation: Its Rise, Fall, and Future (here).  While Judge Rakoff provides his (quite positive) assessment of Professor Coffee’s book, he also  delivers his own analysis of the issues Professor Coffee raises, as well as of the prescriptions Professor Coffee proposes for the class action defects he has identified, as discussed below.
Continue Reading Class Action Litigation, Professor Coffee, and Judge Rakoff