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Full-Text Articles in Law
Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley
Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley
Michigan Law Review
Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to …
An Opt-In Option For Class Actions, Scott Dodson
An Opt-In Option For Class Actions, Scott Dodson
Michigan Law Review
Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on either an opt-out or an opt-in …
A Blended Approach To Reducing The Costs Of Shareholder Litigation, Valian A. Afshar
A Blended Approach To Reducing The Costs Of Shareholder Litigation, Valian A. Afshar
Michigan Law Review
Multiforum litigation and federal securities law class actions impose heavy costs on corporations and their shareholders without producing proportionate benefits. Both are largely the result of the agency problem between shareholders and their attorneys, driven more by the attorneys’ interests in generating fees than by the interests of their clients. In response to each of these problems, commentators have recommended a number of solutions. Chief among them are forum selection and mandatory arbitration provisions in a corporation’s charter or bylaws. This Note recommends that corporations unilaterally adopt both forum selection and mandatory arbitration bylaws to address shareholder lawsuits under state …
Securities Class Actions And Bankrupt Companies, James J. Park
Securities Class Actions And Bankrupt Companies, James J. Park
Michigan Law Review
Securities class actions are often criticized as wasteful strike suits that target temporary fluctuations in the stock prices of otherwise healthy companies. The securities class actions brought by investors of Enron and WorldCom, companies that fell into bankruptcy in the wake of fraud, resulted in the recovery of billions of dollars in permanent shareholder losses and provide a powerful counterexample to this critique. An issuer's bankruptcy may affect how judges and parties perceive securities class actions and their merits, yet little is known about the subset of cases where the company is bankrupt. This is the first extensive empirical study …
Are Class Actions Unconstitutional?, Alexandra D. Lahav
Are Class Actions Unconstitutional?, Alexandra D. Lahav
Michigan Law Review
Are class actions unconstitutional? Many people-defendants and conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book Wholesale Justice provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.
Loss Causation And Class Certification, Steven Serajeddini
Loss Causation And Class Certification, Steven Serajeddini
Michigan Law Review
Courts have long faced difficulty interpreting loss causation under Section 10b-5 of the Securities Act of 1934. This difficulty stems from the seemingly irreconcilable conflict between this core element of common law fraud and the procedural demands of Rule 23 of the Federal Rules of Civil Procedure, the typical vehicle for a 10b-5 class action. Recently, some courts and commentators have begun to consider loss causation as an individualized inquiry that is not common among class members, and one that therefore warrants consideration at the class certification stage. The existing justifications center on the conceptually distinct 10b-5 element of reliance, …
Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam Gilles
Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam Gilles
Michigan Law Review
It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term "collective action waivers" - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer …
Interjurisdictional Preclusion, Howard M. Erichson
Interjurisdictional Preclusion, Howard M. Erichson
Michigan Law Review
Res judicata is hard enough already. Consider it at the interjurisdictional level, and we are asking for headaches. But consider it at that level we must, because litigation trends make interjurisdictional preclusion more important than ever. Lawyers, judges, litigants, and other litigation participants increasingly must contemplate the possibility that a lawsuit will have claim-preclusive or issue-preclusive effect in a subsequent suit in another jurisdiction. With great frequency, multiple lawsuits arise out of single or related transactions or events. Mass tort litigation and complex commercial litigation provide the most emphatic examples, but the phenomenon of multiple related lawsuits extends to every …
Structuring Multiclaim Litigation: Should Rule 23 Be Revised?, William W. Schwarzer
Structuring Multiclaim Litigation: Should Rule 23 Be Revised?, William W. Schwarzer
Michigan Law Review
The question whether Rule 23 should be revised therefore is not susceptible to a global answer unless revision is stylistic only, limited to making the text more elegant - and even stylistic revision is likely to have some substantive impact, even if unintended. But if the argument for revision is that the Rule is in some respect deficient and should be made to work better, one must begin by answering the question how it should work. That in tum depends on defining the Rule's purpose - what it is intended to accomplish.This paper examines briefly the purposes for which the …
Turning From Tort To Administration, Richard A. Nagareda
Turning From Tort To Administration, Richard A. Nagareda
Michigan Law Review
My objective here is to challenge the notion that the recent mass tort settlements - for all their novel qualities in the mass tort area - are truly sui generis in the law. Rather, I contend that the rise of such settlements in tort mirrors the development of public administrative agencies earlier in this century - that, in both instances, powerful new institutions emerged outside preexisting channels of control to wield significant power over human lives and resources. I argue that courts usefully may draw upon familiar doctrines of judicial review in administrative law to form a conceptual framework for …
Apocalypse Now?, Richard L. Marcus
Apocalypse Now?, Richard L. Marcus
Michigan Law Review
A Review of Agent Orange on Trial: Mass Toxic Disasters in the Courts by Peter H. Schuck
Abuse In Plaintiff Class Action Settlements: The Need For A Guardian During Pretrial Settlement Negotiations, Sylvia R. Lazos
Abuse In Plaintiff Class Action Settlements: The Need For A Guardian During Pretrial Settlement Negotiations, Sylvia R. Lazos
Michigan Law Review
This Note explores the problem of abuse of the class action device during the pretrial settlement process. Part I analyzes the underlying sources of potential abuse in pretrial settlement negotiations. Part II assesses the adequacy of the standards currently used by courts to detect collusive class action settlements. Part III concludes that the appointment of a neutral third-party guardian to oversee the pretrial negotiation process furthers the judicial policy of encouraging settlements while protecting the interests of the absentee class.
Statutes Of Limitations And Defendant Class Actions, Michigan Law Review
Statutes Of Limitations And Defendant Class Actions, Michigan Law Review
Michigan Law Review
This Note argues that in defendant class actions the statute of limitations should be tolled as to all named and absent class members upon informal notice given by the plaintiff at the beginning of the suit. Part I examines the purposes of statutes of limitations and class actions, and the manner in which these purposes were reconciled in American Pipe. It concludes that American Pipe requires the creation of a tolling doctrine that promotes both the fair notice policy that underlies statutes of limitations and the concern for litigative economy that underlies rule 23 class actions. Part II then …
Limiting The Plaintiff Class: Rule 10b-5 And The Federal Securities Code, Michigan Law Review
Limiting The Plaintiff Class: Rule 10b-5 And The Federal Securities Code, Michigan Law Review
Michigan Law Review
The Penn Central litigation, involving a large, publicly held corporation, illustrates the need to examine the reach of the federal antifraud provisions. This Note discusses the problem of defining the plaintiff class when the number of past and present shareholders who are potential plaintiffs is very great. Attention will center on the methods courts have used to limit the class of investors compensable under rule 10b-5. Also, the effect that enactment of present drafts of the American Law lnstitute's proposed Federal Securities Code would have on the composition of the plaintiff class in analogous actions will be discussed. Finally, the …
The Tentative Settlement Class And Class Action Suits Under Title Vii Of The Civil Rights Act, Michigan Law Review
The Tentative Settlement Class And Class Action Suits Under Title Vii Of The Civil Rights Act, Michigan Law Review
Michigan Law Review
This Note will examine the potential utility of a tentative settlement class (TSC) in suits initiated under title VII of the Civil Rights Act of 1964. The advantages and disadvantages of the TSC will be discussed in the context of analyzing whether the use of a TSC is valid under rules 23(a) and 23(b) of the Federal Rules of Civil Procedure. The discussion of the merits of the TSC in the title VII context will illustrate the problems inherent in the use of a tentative class for encouraging settlements of any class action.
Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review
Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review
Michigan Law Review
This Comment will examine the likelihood that Rule 23, as it has been interpreted since its amendment, will provide a mechanism through which consumers may successfully resolve their grievances. The focus will be on the manageability problems of providing the requisite notice and of devising a method of calculation and distribution of damages.