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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 Opt-Outs on Parade

IMG_0359Location

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 Into the Lions’ Dens

imageWe 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 class actions will rebound: Politics.
Continue Reading Three Reasons Class Actions Will Rebound, Part 2

Patent pirates?
New rules for patent pirates.

Extraordinary protection

Since 2007, wanton patent infringers have enjoyed extraordinary legal protection from awards of “enhanced” damages under section 284 of the Patent Act.

Last week, the Supreme Court stripped away three of the protections. The changes will make good patent cases better. But it won’t convert weak ones into strong ones.
Continue Reading Patent Cases Just Got Scarier

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

Boycott SignLeegin as wrecking ball?

Since the Supreme Court struck down an almost century-old rule of per se antitrust liability in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007),* defense lawyers have tried to turn a single sentence from Leegin into a per-se category killer.

The effort presents high stakes, principally because per se cases have several advantages over their rule-of-reason cousins. The former are simpler, cost millions of dollars less to work up and try, and have greater odds of success with a judge or jury. The per se rule:

  • does not require an economist to opine about the relevant product and geographic markets;
  • obviates the need to prove that the defendants had market (or monopoly) power or that their conduct was anticompetitive;
  • simplifies proof of damages; and
  • precludes defendants from claiming, and presenting evidence, that their agreement enhanced competition.

You would expect a kindly hearing from the Fifth Circuit — a court that, despite President Obama’s six years of judicial appointments, still counts twice as many Republican (10) as Democratic (5)  appointees in active service. But would the court drink the Kool-Aid?

The court answered on November 25. The panel gave a resounding no.Continue Reading The Future of Per Se Antitrust Liability

imageClass 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 heard arguments to all but doom wide swaths of class cases altogether.

I write not to address those cases but to explain why even if the threats they pose prove non-fatal, the reprieve may not last. Two other petitions for review on the Court’s docket pose existential threats almost as potent.
Continue Reading The Next Death Threat to Class Actions