Archives: Class Actions

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LIBOR Over-the-Counter Plaintiffs Win Class Certification of Price-Fixing Claims Against Banks

By Barry Barnett on Posted in Antitrust, Class Actions
Today, United States District Judge Naomi Reice Buchwald in Manhattan issued LIBOR VII, in which the court granted class certification under Rule 23(b)(3) to a class of plaintiffs who bought over-the-counter instruments that paid interest in terms of the London Interbank Offered Rate (LIBOR) and who allege that LIBOR-setting banks conspired to suppress LIBOR during the … Continue Reading

Pharma Buyers Too Few for Class

By Barry Barnett on Posted in Antitrust, Class Actions
U.S. District Judge Mitchell S. Goldberg ruled on August 28, 2017 that a class of 24 to 25 direct purchasers did not satisfy the “numerosity” requirement of Rule 23(a)(1) for class certification. Florence Drug Co. of Florence, Inc. v. Cephalon, Inc., No. 06-c-1797, ECF 1072 (E.D. Pa. Aug. 28, 2017), on remand from In re Modafanil Antitrust Litig., 837 … Continue Reading

Dieselgate — Antitrust Edition

By Barry Barnett on Posted in Antitrust, Class Actions
You will recall that two years ago Volkswagen got in $14.7 billion worth of class action trouble for rigging software in its diesel cars to fake compliance with U.S. emission standards. The We now learn that Volkswagen didn’t act alone.… Continue Reading

Opt-Outs on Parade

By Barry Barnett on Posted in Class Actions, Procedure
Arise, ye claimants For more than 40 years, you could wait (and wait and wait) to decide whether or not to opt out of a class action in order to pursue your own individual case. You didn’t have to squawk until (1) you got formal notice of your right to remove yourself from the class … Continue Reading

Into the Lions’ Dens

By Barry Barnett on Posted in Class Actions, Commercial, Corporate, and Contracts, Intellectual Property, Procedure
Location The place of suit matters a lot in civil cases. Suing at home helps the plaintiff — by keeping her costs low, giving her comfort that local judges and juries will give her fair treatment, and throwing out-of-town defendants off balance. All of that bigly boosts the plaintiff’s chances of success. But a trio of … Continue Reading

A Trial Lawyer for the Supreme Court?

By Barry Barnett on Posted in Antitrust, Class Actions, Commercial, Corporate, and Contracts, Intellectual Property, Procedure, Securities
In the last quarter-century and more, no current member of the Supreme Court tried a lawsuit of any kind to a judge or jury. Almost none of the justices has ever tried a civil case to verdict. And before their honors became appellate judges, only one of their number served as a full-time trial judge. Does … Continue Reading

No Class?

By Barry Barnett on Posted in Antitrust, Class Actions
A question of numbers Class actions can save courts and parties a lot of time and money. But what if the class includes just a few members? How much time and money will the class action device save then? The Third Circuit grappled with that “numerosity” question in In re Modafinil Antitrust Litig., 837 F.3d … Continue Reading

A New Day in the Fifth Circuit?

By Barry Barnett on Posted in Class Actions, Commercial, Corporate, and Contracts, Energy, Procedure
Possible shift In 2014, the ABA Journal called the Fifth Circuit the “nation’s most divisive, controversial and conservative appeals court”. Liberal blog Jezebel deemed it “exceedingly conservative”. Even The Wall Street Journal described the court this year as “conservative-leaning”. But in a recent case over limits on voting rights, the court ruled for the left-leaning opponents of the restrictions. And last week, … Continue Reading

Three Reasons Class Actions Will Rebound, Part 2

By Barry Barnett on Posted in Antitrust, Class Actions
We left off last Monday in the middle of something — the Seventh Circuit’s latest proof of its leadership in the law of class actions. My talk of the Seventh Circuit surge followed a segment on The outsize influence of Justice Scalia. Now let’s finish up with the surge before turning to the third and final reason … Continue Reading

Three Reasons Class Actions Will Rebound

By Barry Barnett on Posted in Antitrust, Class Actions
Have class actions — after a steady decline under the Roberts Court — begun a come-back? I believe they have. And I offer here, and in the next post, three reasons they will continue to rebound. The outsize influence of Justice Scalia Justice Antonin Scalia disliked class actions. He advocated putting a spotlight on class … Continue Reading

Feds Propose Pro-Class Action Rule for Banks

By Barry Barnett on Posted in Arbitration, Class Actions, Procedure
Last October, the Consumer Financial Protection Bureau published a study on how banks and other lenders use bans on class actions to save money. The study resulted from a mandate in the Dodd-Frank Wall Street Reform and Consumer Protection Act. As I noted when the study came out: In 2016, despite contracts that mandate one-on-one arbitrations, … Continue Reading

How to Make the Real Bad Guys Pay

By Barry Barnett on Posted in Class Actions, Fees, Procedure
The Times’s Gretchen Morgenson asked in her “Fair Game” column whether making “financial executives personally liable for a portion of any . . . legal settlements” in class actions — regardless of personal fault — would cut down on bad conduct. I bet it would. But I have a better idea. Promise to pay class … Continue Reading

Lessons from an Epic Case — Trust

By Barry Barnett on Posted in Antitrust, Class Actions, Commercial, Corporate, and Contracts, Procedure
12+ years In its more than 12 years of life, the case of Comcast Corp. v. Behrend has offered dozens of chances for the lawyers to persuade — or not. Although class counsel suffered a tough 5-4 defeat in the U.S. Supreme Court, we convinced judges often enough to eke out $35 million in cash, bill credits, and services for … Continue Reading

Keeping Secrets

By Barry Barnett on Posted in Arbitration, Class Actions, Commercial, Corporate, and Contracts
Exposure A U.S. appeals court judge told me a few years ago that private contracts between businesses should call for settling disputes through bench trials rather than by arbitration. But neither the judge nor I thought to mention a factor that may matter more than the relative quality of justice in courts versus private arbitration. … Continue Reading

Lessons from an Epic Case — Bring Your Checkbook

By Barry Barnett on Posted in Antitrust, Class Actions, Commercial, Corporate, and Contracts
Bring your checkbook Today resumes the series on take-aways from the epic case of Comcast Corp. v. Behrend — an antitrust class action that began more than a dozen years ago, produced dozens of opinions, and survived a loss in the U.S. Supreme Court before ending in a $50 million settlement, the benefits of which class … Continue Reading

Lessons from an Epic Case — The Need for Speed

By Barry Barnett on Posted in Antitrust, Class Actions, Procedure
On December 8, 2003, the antitrust class action that lawyers know as Comcast Corp. v. Behrend started a 12-year odyssey through the federal courts. On December 15, 2015, the settlement that will end Behrend became final. Today begins a five-part series on lessons that Behrend taught. This post will focus on a need that all plaintiffs share: … Continue Reading

Why Some Deals Result in Disputes

By Barry Barnett on Posted in Arbitration, Class Actions, Commercial, Corporate, and Contracts, Energy, Securities
Last Thursday, the Association for Corporate Growth hosted a talk in Dallas about deals that result in a lawsuit or arbitration. Several dozen deal-makers, mergers and acquisitions lawyers, and consultants attended. The Honorable Jeff Kaplan of JAMS, Elizabeth Brandon of Vinson & Elkins, and I gave the talk. Ladd Hirsch of Diamond McCarthy organized and … Continue Reading

The Next Death Threat to Class Actions

By Barry Barnett on Posted in Antitrust, Class Actions
Class action skeptics Since 2011, a 5-4 majority of the Supreme Court has made class actions harder to bring and tougher to sustain. In the current term, the Court’s quintet of class action skeptics — Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas — may use a pair of cases in which it has … Continue Reading

Rewards of RICO

By Barry Barnett on Posted in Class Actions, Commercial, Corporate, and Contracts
The Third Circuit’s decision in In re Avandia Marketing, Sales Practices & Product Liability Litigation, No. 14-1948 (3d Cir. Oct. 26, 2015), accepts a path-breaking fraud-on-the-intermediary theory under the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), which allows you to recover three times your actual damages plus reasonable attorneys’ fees. Expect more cases like this.… Continue Reading
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