LIBOR Over-the-Counter Plaintiffs Win Class Certification of Price-Fixing Claims Against Banks
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
Multiples for Pharma Buyers Pursuing Opt-Out Antitrust Claims
Existential threshold
The number of companies that can bring treble-damages claims against drug manufacturers for violating federal antitrust law has dwindled. The scarcity has grown so acute that last week it crossed an existential threshold.
Continue Reading
Pharma Buyers Too Few for Class
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
Dieselgate — Antitrust Edition
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
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 and (b) you failed to timely respond by saying “I opt out. Leave me alone. I would rather do it myself! More money for me!!”
But the thing that gave you leisure — American Pipe tolling — went partially poof last week. The Supreme Court ruled 5-4 (with Gorsuch in the role of Scalia) that tolling may apply to a statute of “limitations” but doesn’t stop the tick-tock under a statute of “repose”. California Public Employees’ Retirement Sys. v. ANZ Securities, Inc., No. 16-373 (U.S. June 26, 2017).
Wake up, people! You may need to move fast.
Continue Reading
Into the Lions’ Dens
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 recent U.S. Supreme Court rulings promise to make plaintiffs’ home fields more like patches of weeds than acres of sweet verdance.
Continue Reading
A Trial Lawyer for the Supreme Court?
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 the justices’ nearly total lack of trial-lawyer chops matter? Has the almost utter absence of actual trial experience in fact degraded the quality of civil justice? And will confirming the nomination of a former trial lawyer like Neil Gorsuch make a difference?
Continue Reading
No Class?
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 238 (3d Cir. 2016).
The answer it gave — that a class with 20+/- mostly big members may not pass the test — could reshape how courts handle antitrust cases worth billions of dollars.
A New Day in the Fifth Circuit?
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, the court sitting en banc voted 11-5 to revive a $250+ million class action. Torres v. S.G.E. Management, L.L.C., No. 14-20128 (5th Cir. Sept. 30, 2016) (en banc).
Has the court’s center of gravity shifted?