Plaintiff Class Research Articles

On Behalf of All Others Similarly Situated: Class Representation & Equitable Compensation

Class actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but “on behalf of all others similarly situated.” For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary “incentive awards” are generally intended to compensate class representatives for shouldering certain costs and risks—which are not borne by absent class members—during the pendency of class litigation. The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh Circuit held that incentive awards are per se unlawful under late nineteenth-century Supreme Court precedent. This holding has ignited a new controversy in the federal courts with far-reaching implications for the future of class actions. Much of the existing legal scholarship on incentive awards analyzes policy rationales, quantitative trends, and legal standards involving the questions of “When?” and “How much?” to compensate class representatives. Only recently have scholars turned their attention to the more foundational question of whether federal courts have a sound basis to allocate incentive awards to class representatives under any circumstances. This Note weighs in on that debate by revisiting the Eleventh Circuit’s recent decision to categorically ban incentive awards. More importantly, this Note looks to the future and confronts the reality that other federal circuit courts or the Supreme Court could eventually adopt the Eleventh Circuit’s position on incentive awards. Facing that unsettling prospect, this Note presents three proposals—one for policymakers and two for plaintiff-side class action practitioners—that could save the equitable tradition of compensating class representatives and reinforce the viability of the class action device itself.

(Mis)Trust and Pragmatism as Grounded Normativity

(Mis)Trust and Pragmatism as Grounded Normativity

U.S. Supreme Court Brief of Legal Scholars as Amici Curiae Supporting Respondent (TransUnion LLC v. Ramirez, No. 20-297)

This brief was filed by legal scholars with expertise in federal courts, federal jurisdiction, and federal civil procedure in TransUnion LLC v. Ramirez, which will be argued before the U.S. Supreme Court on March 30, 2021. In passing the Fair Credit Reporting Act, Congress imposed obligations on credit reporting companies like TransUnion that are designed to protect precisely the kind of individuals who were members of the plaintiff class in this case. Congress also provided a cause of action to allow those individuals to enforce the companies' obligations. At trial, the jury found that the evidence supported each statutory element of the cause of action as to each individual class member. And the jury awarded remedies that are specifically authorized by the same statute that created the cause of action. Nonetheless, TransUnion asks this Court to throw out the judgment below for lack of subject-matter jurisdiction based on additional, uncodified elements that are ostensibly necessary for this even to qualify as a case or controversy under Article III. That is not, however, what Article III requires. Doing so would not only deprive class members of a jury verdict vindicating their rights after years of litigation, but also upend this Court's standing jurisprudence and require class members--and anyone injured by violations of similar congressionally created statutory rights--to seek redress only in state courts.

Did court dismiss student's Title IX suit?

The plaintiff, a female VanderCook College of Music student, reported to the college's Title IX office that she had been sexually assaulted by a male classmate. On the same day, a dean met with the plaintiff and discussed immediate accommodations, including a no‐contact order and a potential alteration of the plaintiff's class schedule. The dean then met with the accused student and ordered him to have no further contact with the plaintiff.

Recovery of Pure Economic Loss in China: Current Situation, Problems and Future Prospects

Abstract Should pure economic loss be compensated in China? If so, to what extent? Both questions are left unsolved in the established literature. We contribute to the existing literature by showing that the Chinese courts have developed a relatively conservative attitude towards the compensation of pure economic loss and that the arguments adopted by the courts to deny recovery are neither fair nor reasonable. Using the law and economics analysis, we have recourse to four complementary solutions. First, pure economic loss cases involving socially relevant losses should be compensated. Second, when social losses are not involved, pure economic loss should also be compensated if the third parties are willing to pay or have paid for protection against such a loss. Third, to relieve the excessive pressure imposed by the compensation for such loss, the concepts of causation and the duty of the victim to mitigate damage need to be further clarified in Chinese laws. Fourth, when determining the amount of compensation for pure economic loss, we should carefully balance the trade-off among a variety of factors, including the extent to which the damage could have been foreseen, the nature of the loss, the blameworthiness of the tortfeasor, the size of the plaintiff class, the public policy toward professional standards, the victim’s private loss, the social loss, the courts’ capacities to calculate the loss, and the third parties’ willingness to pay for protection against the loss.

Litigating for the Homeland: An Indian Treaty Framework to Climate Litigation in the Wake of Juliana

Climate change is an increasingly pressing issue on the world stage. The federal government, however, has largely declined to address any problems stemming from the effects of climate change, and litigation attempting to force the federal government to take action, as highlighted by Juliana v. United States, has largely failed. This Note presents the case for a class of plaintiffs more likely to succeed than youth plaintiffs in Juliana—federally recognized Indian tribes. Treaties between the United States and Indian nations are independent substantive sources of law that create enforceable obligations on the federal government. The United States maintains a trust relationship with federal Indian tribes, and that relationship obliges a duty of protection upon the federal government. This Note argues that those obligations may support climate change claims under the theory that the government, by failing to address climate change, has failed its duty of protection under its treaties.

Supreme Court Orders First Opt-Out Class Action in New Zealand: Southern Response Earthquake Services Limited v Ross

2020 was a big year. From a socio-legal and political perspective, many legislatures and judiciaries around the world have dealt with issues arising from national elections, a global pandemic, and collective action reform. In Australia, the parliamentary enquiry into litigation funding for collective actions dominated the legal headlines. In New Zealand, the Law Commission’s review of class actions and litigation funding commenced. Against this background, it is no surprise that one of the most important decisions in New Zealand’s class action jurisprudence was released by the New Zealand Supreme Court in November 2020. In Southern Response Earthquake Services Limited v Ross, the New Zealand Supreme Court unanimously allowed an opt-out class action to proceed for the first time despite the lack of a specific statutory regime to govern the management of class action litigation. In layman’s terms, an opt-out class action occurs where the plaintiff class includes everyone who meets the class certification criteria unless those individuals expressly choose to opt-out. In contrast, an opt-in class action only includes individuals in a plaintiff class who expressly opt-in to a proceeding. The implications of Southern Response are immense.

The Role of Statistical Evidence in Civil Cases

Civil cases outnumber criminal cases in federal courts, and statistical evidence has become more important in a wide variety of them. In contrast to science, which is concerned with general phenomena, legal cases concern one plaintiff or a class of plaintiffs and replication of the events that led to the case is not possible. This review describes the legal process, the way statistics are used in several types of cases, and the criteria courts use in evaluating the reliability of statistical testimony. Several examples of courts’ misinterpreting statistical analyses are presented. Commonly occurring issues in the statistical analysis of stratified data, the use of regression analysis, and the use of epidemiologic estimates of relative risk are described. Hopefully, this review will encourage statisticians to engage with the legal system and develop better ways of communicating the results of studies so they receive the evidentiary weight they deserve.

The Sperminator As a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts)

Faced with an increase in sperm bank “accidents” – the lacuna of suitable legal redress for sperm-bank imposed harms begs to be filled. This article demonstrates for the first time that some sperm-bank generated harms transcend violating the personal goals of the parent and the rights of the child. In addition, sperm bank errors infringe on societal rights by, for example, saddling it with health costs for children born with genetic diseases. Moreover, introducing inherited diseases into the gene pool in large numbers sets the stage for a public health crisis. To address these harms, I propose repurposing an old of cause action, the private claim of a public nuisance. This harm-driven approach expands the class of would-be plaintiffs, broadens the spectrum of allowable claims, and bypasses restrictions imposed by traditional negligence law. Insofar as punitive damages are also allowed, the claim also has the potential to act as a deterrent of a host of sub-par sperm bank practices. I also discuss the implications of holding the sperm bank to fiduciary standards.

A New Market-Based Approach to Securities Law

Modern securities regulation has three main areas, each of which is plagued by a core problem. Mandatory disclosure law leaves society with suboptimal disclosure, as the government calls for too little of some information (for example, management analysis of company prospects) and too much of other information (for example, data about trivial executive perks). Securities fraud law (specifically, its central fraud-on-the-market theory of reliance) yields damages at odds with any reasonable theory of compensation and deterrence. And insider trading law fails to achieve its ends because incentives to police illegal trading and tipping by executives are currently weak. In this Article, we propose fixing these fundamental flaws of securities law by shifting much of the regulatory focus from firms to information. In particular, we introduce the idea of building the law around a well-regulated market for the public company information that sits at the center of each of the three main areas of securities law. Deploying this market, we argue, would trigger incentives for firms to disclose more information of value while also motivating them to more rigorously police illegal trading and tipping by their agents. Additionally, it would help regulators identify when the law requires disclosure that is not socially valuable and assist in the identification of a class of securities fraud plaintiffs that is more in line with the goals of the anti-fraud regime.

Enforcing the Bargain v. Materiality Requirement: The Future of Disclosure-Only Settlements Post-Trulia

In In re Trulia, Inc. Stockholder Litigation, the Delaware Court of Chancery broke away from its tradition of routinely approving disclosure-only settlements and required disclosures to be material in order to cure the conflict of interest between plaintiff’s counsel and the plaintiff class. I argue that fairness of settlement is the only standard in approving class action settlements and fairness will not be achieved by requiring materiality. Shareholders are legally entitled to all material information, as the board’s fiduciary duty dictates. Thus, material disclosures are enforcement of a legal duty that is no consideration for the release of shareholder claims. On the other hand, fairness could be achieved by enforcing the bargain if the bargaining process was conducted fairly and in good faith. The agency problem and the conflict of interest between the plaintiff’s counsel and the plaintiff class can be resolved by judicial assessment on whether there was adequate representation based on the effort of the plaintiff’s counsel and the appropriate attorney fee award according to the well-established three-scale system in quantifying the appropriate attorney fees. In addition, overbroad releases can be rescinded under the contract doctrines of fraud and unconscionability if such settlements were fraudulently induced or the release is overbroad compared to the benefit that the disclosures conveyed.

Prepared Testimony of Professor Michael T. Morley Before the U.S. House of Representatives Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet

This is the written statement I submitted in conjunction with my testimony before the U.S. House Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Internet concerning nationwide injunctions. The statement begins by distinguishing among various types of nationwide injunctions. It goes on to emphasize the need to distinguish between class actions and non-class cases. In Rule 23(b)(2) class actions, the main issue is the proper geographic scope of the plaintiff class; courts generally should refuse to certify nationwide classes. Nationwide classes are largely inconsistent with the decentralized structure of the federal judiciary and limited geographic responsibility of each district court. In non-class cases, in contrast, the primary issue is the scope of the injunction itself. I argue that courts should generally issue Plaintiff-Oriented which prohibit the Government defendant from enforcing the challenged statute, regulation, executive order, or other federal policy solely to the particular plaintiffs in the case. They should typically decline to issue nationwide that completely prohibit the Government defendants from enforcing the challenged legal provision against anyone, anywhere in the nation. Defendant-Oriented Injunctions raise troubling concerns relating to Article III standing, Due Process, asymmetric claim preclusion, Rule 23, and the limited geographic jurisdiction of individual district courts. The statement concludes by offering brief legislative proposals to address these issues.

Drug Product Life-Cycle Management as Anticompetitive Behavior: The Case of Memantine.

No outside funding supported this research. To support his work at PORTAL in the summer of 2015, Capati was the recipient of the University of New Hampshire School of Law Rudman Center Public Service Fellowship. Kesselheim's research was supported by Greenwall Faculty Scholars program, the Laura and John Arnold Foundation, and the Harvard Program in Therapeutic Science. In 2013, Kesselheim served as an expert on behalf of a class of individual plaintiffs against Warner Chilcott regarding potential antitrust violations Kesselheim was responsible for concept and design of this commentary. Capati took the lead in data collection and analysis, along with Kesselheim. Capati wrote the manuscript, which was revised by primarily by Kesselheim, along with Capati.

Case pending: practices of inclusion and exclusion in a class of plaintiffs

Apartheid victims have had a difficult standing in South Africa in the years that followed the Truth and Reconciliation Commission (TRC). In the government's perspective, the TRC had conclusively dealt with apartheid victimhood. Consequently, when victims turned to US courts in the early 2000s to sue multinational companies for their role in the perpetration of apartheid- era crimes, they faced everything from scepticism to hostility. From a different perspective, many scholars shared this scepticism, fearing the individualising power of the law. But contrary to the TRC, these apartheid litigations, as class actions, offer individual victims the chance to make their claims collectively.With the help of the extended case method, this article shows how both victims and courts struggle with the difficult relationship between structural reasons, collective action and individually experienced harm. I enquire into the logics of the law as produced in courts and into lived experience of apartheid-era victimhood in today's South Africa and suggest a refinement of theories of legalisation.

Amicus Brief of Antitrust Scholars, Supporting Plaintiffs, in O'Bannon V. NCAA, Nos. 14-16601, 14-17068 (9th Cir. Jan. 28, 2015)

This brief, signed by twenty-six professors of antitrust and sports law, as amici curiae, was filed today in O'Bannon v. NCAA, in which a plaintiff class of student athletes won Sherman Act injunction against NCAA rules precluding them from sharing in certain licensing revenues. Amici support plaintiffs in the NCAA's appeal before the Ninth Circuit, arguing that the trial court adequate explained a finding of liability under the ordinary rule of reason.

Transnational Class Actions in the Shadow of Preclusion

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. suit (and reaping its rewards) or relitigating the case abroad. Transnational class actions thus give some plaintiffs “litigation options.” The few courts and scholars that have recognized this phenomenon have proposed methods to identify litigation option holders and exclude them from opt-out treatment. Some U.S. judges, for example, have refused to certify classes that include citizens of foreign countries that may not recognize U.S. class judgments. This Article shows that this conventional wisdom is misdirected: citizenship is the wrong measure; courts are poorly positioned to identify relitigation risk; and the social costs of excluding option holders may well outweigh the benefits. Instead, courts should certify classes of foreign and domestic plaintiffs in service of policy goals such as deterrence and intraclass fairness regardless of foreign preclusion law. At the same time, this Article suggests innovative approaches to achieve some preclusion previously unremarked upon in transnational cases. Prior approaches are insufficient, in part, because they rely on courts without acknowledging the informational asymmetries between courts and parties or the limited tools available for judicial resolution. This Article explains how private incentives and private information may fill the gap in interjurisdictional preclusion law. Parties should be encouraged to negotiate private preclusion agreements in cases in which preclusion matters. In addition, courts can coordinate informally to curb costly relitigation. In summary, this Article uses values derived from lawmaking choices and a practical assessment of the litigation environment to respond to litigation options in transnational class actions not by excluding option holders but instead by permitting aggregation and seeking alternatives to preclusion law. This Article applies these lessons to transnational class actions filed in a single jurisdiction (e.g., a U.S. court), as well as to dueling class actions filed in two countries simultaneously and to U.S. recognition of foreign aggregate judgments whatever their form.The appendices for this paper are available at the following URL: http://ssrn.com/abstract=2609339

The Price of Discrimination: The Nature of Class Action Employment Litigation and Its Effects

This article analyzes the recent wave of large class action employment discrimination suits to determine their effects on the firms that are sued and the members of the plaintiff class. The first part of the paper includes an event study that measures the effect the lawsuits and their settlements have on stock prices of the companies that are sued, and the second part of the paper involves three case studies (Texaco, Home Depot and Denny's) to explore how the lawsuits actually change corporate practices. The study finds that the lawsuits do not generally affect stock prices, and rarely provide meaningful benefits to the plaintiff class. Although the damages obtained in the cases are substantial, they are generally not sufficient to affect large corporations, which also means that the lawsuits are unlikely to provide a sufficient deterrent against discrimination. An important subsidiary finding of the study is that employment discrimination class actions have lost their public nature and have evolved into private tort claim where there is little public oversight. The last part of the article proposes several reform measures, including increasing damages available in employment discrimination suits, and imposing a public monitoring function on the settlement.

The Classification of International Legal Rules: A Reply to Stefan Talmon

AbstractAny legal system, including the international legal system, consists of rules that serve multiple purposes and functions that the legal system in question needs to perform in order to survive as a viable organism. Jurisprudence of national and international courts relating to areas such as responsibility, immunity, and dispute settlement has involved intensive discussions as to the nature and implications of the various categories of rules. Approaching this broad area, with its multiple components, requires careful differentiation of the nature of those various categories of rules, for the fact that the relevant classification of rules works in one area does not inherently make it workable in other areas, which is confirmed in practice. The most problematic issue remains the judicial application ofjus cogensin relation to state immunities and the ensuing distinction between substantive and procedural rules. It is shown in this contribution that this artificial distinction does not reflect the functions international law actually accords to its various rules, and is instead a product of political and ideological preference to keep particular classes of plaintiffs out of certain jurisdictions.

The Two Faces of Materiality

To make out a claim for securities fraud under federal law, a plaintiff must plead and prove the misrepresentation of a material fact. The Supreme Court has repeatedly defined a material fact as one that would be important to a reasonable investor in deciding how to act in that it would change the total mix of information — although it need not necessarily change the ultimate decision of the investor as to how to vote or whether to trade. The courts have also defined a material fact as one that would affect market price — which clearly implies that it must have changed the decisions of some investors. Although these two definitions of materiality appear to conflict, they can be reconciled as alternative expressions of the same standard, the former referring to individual investors and the latter referring to investors in the aggregate. Indeed, the Supreme Court has held a fact cannot be material if it cannot matter to the ultimate outcome, suggesting that a fact cannot be material if it does not affect the behavior of a number of investors sufficient to move the market. Arguably, it would be appropriate to consider price impact in connection with the decision to certify a securities fraud action as a class action under the fraud on the market (FOTM) theory since a class action involves the claims of investors in the aggregate and since price impact need not be dispositive as to the merits of the individual claim of the lead plaintiff who may be able to recover under the individual investor standard. The Supreme Court foreclosed that option in its Amgen decision, possibly for fear that failure to determine materiality in the context of a class action might lead to a multiplicity of lawsuits. Nevertheless, the Amgen Court stated that determination of the question may be appropriate on summary judgment even though earlier decisions have emphasized that materiality is a matter of fact that should not be decided by any bright line test. Moreover, in focusing on materiality as a matter of merit, Amgen says nothing about when a court should consider other grounds for rebutting the FOTM presumption of reliance based on the likelihood that the plaintiff class includes significant numbers of atypical investors who may have been indifferent to company-specific market prices and thus may not be adequately represented in a class action.

The Preclusive Effect of U.S. Class Action Judgments in Switzerland: Does a Judgment in an Opt-Out Class Action before a U.S. Court Preclude Absent Plaintiff Class Members from (Re)-Litigating Their Individual Claims in Switzerland?

The Swiss legislator has so far refused to implement any substantial form of representative litigation into national civil procedure law. As an indirect consequence of the absence of domestic group litigation in Switzerland, it is unclear how Swiss courts have to deal with foreign class actions. One crucial question is whether money judgments in foreign class actions are enforceable in Switzerland, i.e. whether a class representative is able to enforce a judgment in favor of the class in this country. Yet foreign class actions also raise the additional issue whether absent class members are precluded from individually litigating their claims, particularly in case the class action was unsuccessful. While, according to the concept of U.S. opt-out class actions, individual claimants are generally barred from suing upon their own causes of action that have already been litigated in the context of a class action, the same issue is so far unresolved in the international context. Absent a relevant statutory provision or case law regarding this question, the opinions in Switzerland differ considerably.In the United States, the issue of preclusion of class members in other countries has attracted increasing interest over the last few years. Acknowledging the risk that plaintiff class members might attempt to (re-)litigate their claims in foreign jurisdictions, U.S. courts have started to take the anticipated recognition/non-recognition of the class action judgment in the plaintiffs’ home countries into account when asked to certify an international plaintiff-class.In this article, I will analyze the issues arising when a defendant argues in a Swiss court proceeding that the plaintiff was part of a class which has already litigated its members’ claims in the United States and that the plaintiff should therefore be precluded with his individual lawsuit. Then, I will examine how well Switzerland fares with its current provisions on the international level, in particular in light of the mentioned development in U.S. law regarding transnational class actions.