Law Commons^™

When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave

D. Theodore Rave

On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …

Adequacy Of Representation In Argentina: Federal Supreme Court’S Case Law, Bills Pending Before Congress And The Preliminary Draft Of A New Civil Code, Francisco Verbic

Francisco Verbic

The paper describes how adequacy of representation has recently arrived to Argentina’s legal system in the field of representative litigation. First of all, in the FederalSupreme Court’s case law. Then, in some bills which are nowadays pending before Congress. Lastly, in the Preliminary Draft of a new Civil Code recently announced by the President and the Chief Justice of the Federal Supreme Court. I take a critical approach towards the issue, particularly because of the little attention paid to such a relevant aspect of representative proceedings

Investor Protection Meets The Federal Arbitration Act, Barbara Black, Jill Gross

Barbara Black

In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit investors from bringing class actions or joining claims, including claims under the Securities Exchange Act of 1934 (the Exchange Act). In the most egregious example to …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

A. Benjamin Spencer

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Consumer Class Actions In Argentina And Brazil. Comparative Analysis And Enforcement Of Foreign Judgments, Francisco Verbic

Francisco Verbic

No abstract provided.

Why Is The Highway Closed? The Unreasonable Restriction Imposed On The Legal Services Corporation Regarding Class Action Suits, Francisco Verbic

Francisco Verbic

In this paper I discuss the prohibition imposed by the US Congress on the Legal Services Corporation regarding the use of class action suits to provide free legal assistance to the poor. I deal with the creation of the Legal Services Corporation in the US, the scope and advantages of class actionssuits (particularly in terms of access to justice), and the role this kind of procedure can play in a context of a deep economic crisis that have deepened the gap in access to the civil justice system. I argue that the aforementioned prohibition to use class actions is unreasonable …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

A. Benjamin Spencer

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Judges Who Settle, Hillary A. Sale

Hillary A Sale

This Article develops a construct of judges as gatekeepers in corporate and securities litigation, focusing on the last-period, or settlement stage of the cases. Many accounts of corporate scandals have focused on gatekeepers and the roles they played or, in some cases, abdicated. Corporate gatekeepers, like investment bankers, accountants, and lawyers, function as enablers and monitors. They facilitate transactions and enable corporate actors to access the financial and securities markets. Without them the transactions would not happen. In class actions and derivative litigation, judges are the monitors and enablers. They are required to oversee the litigation arising from bad transactions …

The Disappearing Opt-Out Right In Punitive Damages Class Actions, Richard Frankel

Richard Frankel

The tension between protecting defendants from multiple punitive damages awards for a single act and ensuring that wronged plaintiffs can recover punitive damages is one of the most pressing problems in punitive damages law today. Numerous commentators have proposed non-opt-out class actions for punitive damages as the best solution to the “multiple punishment” problem because they subject defendants to a single collective punitive damages award that can be distributed equitably across all injured plaintiffs. This Article challenges that position. It argues that mandatory classes improperly deprive class plaintiffs of their right to opt out and pursue their own individual claims …

Judges Who Settle, Hillary A. Sale

Hillary A Sale

This Article develops a construct of judges as gatekeepers in corporate and securities litigation, focusing on the last-period, or settlement stage of the cases. Many accounts of corporate scandals have focused on gatekeepers and the roles they played or, in some cases, abdicated. Corporate gatekeepers, like investment bankers, accountants, and lawyers, function as enablers and monitors. They facilitate transactions and enable corporate actors to access the financial and securities markets. Without them the transactions would not happen. In class actions and derivative litigation, judges are the monitors and enablers. They are required to oversee the litigation arising from bad transactions …

Making Wto Remedies Work For Developing Nations: The Need For Class Actions, Phoenix X. Cai

Phoenix X. Cai

Making WTO Remedies Work for Developing Nations: The Need for Class Actions

Abstract

Developing nations comprise more than four-fifths of the membership of the World Trade Organization (“WTO”). Yet, they seldom participate in the WTO’s powerful dispute settlement process. This is problematic because the WTO is essentially a self-enforcing system of reciprocal trade rights that relies on proactive monitoring and enforcement by all members. Use of the self-enforcement mechanism – by initiating cases under the WTO’s Dispute Settlement Understanding (“DSU”) - is critical.

There are five primary reasons why developing nations do not actively invoke the DSU. This Article argues …

Protecting Foreign Investors From International Securities Fraud, Derek N. White

Derek N White

This article discusses the subject matter jurisdiction of national courts in a little-known type of international securities cause of action that has vexed courts of the developed world. The cause of action is labeled the “foreign-cubed class action”, which is brought when a dispute arises regarding purported improprieties in an international securities transaction that contains foreign investors who purchase securities of foreign issuers on foreign stock exchanges. Notice the three “foreign” elements of the transaction ("foreign" meaning foreign to the court presiding over the action).

The number of foreign-cubed class actions brought in U.S. courts has risen sharply over the …

Exporting Class Actions To The European Union, Tiana Leia Russell

Tiana Leia Russell

In this paper, I present the theoretical debates regarding the value of class action litigation, both with respect to compensation and deterrence. I begin by reviewing the class action litigation model in the United States. The paper then explores the current state of private antitrust enforcement in the European Union, with specific focus on the availability of class action litigation within Europe. I discuss recent calls within the European Union for greater private enforcement of competition law and outline steps the Commission has taken in addressing that need, including the recently published White Paper on Damages for Breach of EC …

Switzerland, Samuel P. Baumgartner

Samuel P. Baumgartner

Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil Procedure, reveals considerable cautious conservatism toward reform.

Class Actions And Group Litigation In Switzerland, Samuel P. Baumgartner

Samuel P. Baumgartner

Class actions have gone global. Foreign parties are no longer a rarity in U.S. class litigation, among other developments. In addition to being named as defendants, foreigners increasingly form a significant part of the group of absent class members. U.S. courts have thus begun to consider some novel issues, including whether due process requires foreigners to be treated as an opt-in rather than an opt-out class; whether a judgment or settlement in the suit is capable of being enforced or recognized as res judicata abroad and thus whether class certification is justified in the first place; and whether a foreign …

The Importance Of Being Earnest: Pleading And Maintaining A Class Action For The Purpose Of Binding Class Members, David G. Karro

David G. Karro

This 1981 article contends, as its title suggests, that federal class actions should be brought only if class counsel believe they can represent the individual interests of the members of the class described in the complaint. After all, the mere filing of a class action complaint has legal consequences, and it is generally acknowledged that the members of even an alleged class have some right to rely on the class attorney to protect their interests. A certification order therefore does not create a class, but instead puts the court's imprimatur on class counsels’ representation that they can carry out rhw …