imageThe 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 action lawyers big bonuses for finding the actual bad guys and making them pay. Continue Reading How to Make the Real Bad Guys Pay

imageUsing a fraction of a fraction instead of a percentage can cost an oil and gas fortune.

The lesson came in Hyshaw v. Dawkins, No. 14-0984 (Tex. Jan. 29, 2016), a fight over a 69 year-old will. It shows what a mess can result from the fondness of oil and gas people for a particular kind of fraction — the sort with an eight in the denominator. Continue Reading Oil and Gas + Fractions Equal a Mess

imageA tough clause to beat

A little over two years ago, the Supreme Court held that judges must enforce forum-choice clauses in the absence of “extraordinary” reasons “unrelated to the convenience of the parties”. Atlantic Marine Construction Co., Inc. v. United States District  Court for the Western District of Texas, 134 S. Ct. 568, 580 (2013).

On the day that  the 9-0 Court handed down Atlantic Marine, I wrote that it “will bring joy to firms that put [the] clauses in their contracts in hopes of making lawsuits too costly to pursue.”

Has the case borne out my forecast of joy?

Yes. Yes indeed. Continue Reading The Value of Forum-Choice Clauses

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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 the Philadelphia-area class.

Class plaintiffs prevailed mostly because we had the better side of the issues. But we also did a better job of earning the trust of the decision-makers we appeared before — the district judges in Boston and Philadelphia, appellate judges on the First and Third Circuits, and even justices of the Supreme Court.

Let me give you a few reasons for my view. Continue Reading Lessons from an Epic Case — Trust

imageExposure

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. As a recent 2-1 ruling by the Ninth Circuit just reminded us, federal courts strongly favor public access to case records — even if the records include deeply embarrassing documents that a party produced in discovery. Continue Reading Keeping Secrets

imageBring 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 members started receiving last month.

Today’s lesson underscores a harsh reality — and one that critics of class actions tend to forget: Class actions cost class counsel not only their time but also their money, potentially large quantities of it. Continue Reading Lessons from an Epic Case — Bring Your Checkbook

imageOn 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: the need for speed in getting to a final outcome, whether favorable or not. But it highlights a danger that exists especially in legally complex cases — the risk that the governing law will make reaching a favorable final resolution more costly, time-consuming, and risky.  Continue Reading Lessons from an Epic Case — The Need for Speed