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Insights on Sharing the Risks and Rewards of High-Stakes Business Disputes

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  • 11/08/15--22:01: Rewards of RICO
  • The Third Circuit’s decision in In re Avandia Marketing, Sales Practices & Product Liability Litigation, No. 14-1948 (3d Cir. Oct. 26, 2015), accepts a path-breaking fraud-on-the-intermediary theory under the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), which allows you to recover three times your actual damages plus reasonable attorneys’ fees. Expect more cases like this. Diabetes … Continue Reading

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    Class 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 … Continue Reading

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    Last Thursday, the Association for Corporate Growth hosted a talk in Dallas about deals that result in a lawsuit or arbitration. Several dozen deal-makers, mergers and acquisitions lawyers, and consultants attended. The Honorable Jeff Kaplan of JAMS, Elizabeth Brandon of Vinson & Elkins, and I gave the talk. Ladd Hirsch of Diamond McCarthy organized and … Continue Reading

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    On 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: … Continue Reading

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    Bring 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 … Continue Reading

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  • 01/18/16--23:05: Keeping Secrets
  • Exposure 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. … Continue Reading

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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 … Continue Reading

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    The 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 … Continue Reading

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  • 02/21/16--23:07: Justice Scalia & Me
  • In this post, I will tell you my Antonin Scalia story — and about his role in limiting class actions. A deal Late one night in 2012, my friend Joe Goldberg and I took I-95 south from Boston. We had just signed a memorandum of settlement with Comcast in a class action. We had also … Continue Reading

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  • 02/28/16--23:01: Chaos in the Lower Courts?
  • How will lower federal courts react to the loss of a 5-4 pro-business majority on the U.S. Supreme Court? A slew of writers have highlighted the fact that Antonin Scalia’s February 13 death will change the outcome of some big cases now pending before the Court. But as best I can tell only one noticed … Continue Reading

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    Last October, the Consumer Financial Protection Bureau published a study on how banks and other lenders use bans on class actions to save money. The study resulted from a mandate in the Dodd-Frank Wall Street Reform and Consumer Protection Act. As I noted when the study came out: In 2016, despite contracts that mandate one-on-one arbitrations, … Continue Reading

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    After a trip to the Supreme Court and back, the massive case against 16 of the world’s largest banks for rigging the London inter-bank offer rate (LIBOR) — “the most important number in the world” — will return to the district court in Manhattan scarier than ever for the defendants. Gelboim v. Bank of Am. … Continue Reading

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    Have class actions — after a steady decline under the Roberts Court — begun a come-back? I believe they have. And I offer here, and in the next post, three reasons they will continue to rebound. The outsize influence of Justice Scalia Justice Antonin Scalia disliked class actions. He advocated putting a spotlight on class … Continue Reading

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    We 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 … Continue Reading

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  • 09/18/16--22:01: Bad News for Price-Fixers
  • A dilemma A price-fixer cheats his buyers, but he may also do something worse — frighten them into doing nothing about it. Last week, the Third Circuit made a ruling that will calm victims’ fears. Instead of bringing a claim they don’t want to prosecute, the court held, they may freely assign it to someone … Continue Reading

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    Possible shift In 2014, the ABA Journal called the Fifth Circuit the “nation’s most divisive, controversial and conservative appeals court”. Liberal blog Jezebel deemed it “exceedingly conservative”. Even The Wall Street Journal described the court this year as “conservative-leaning”. But in a recent case over limits on voting rights, the court ruled for the left-leaning opponents of the restrictions. And last week, … Continue Reading

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  • 12/18/16--22:02: No Class?
  • A question of numbers Class actions can save courts and parties a lot of time and money. But what if the class includes just a few members? How much time and money will the class action device save then? The Third Circuit grappled with that “numerosity” question in In re Modafinil Antitrust Litig., 837 F.3d … Continue Reading

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    In the last quarter-century and more, no current member of the Supreme Court tried a lawsuit of any kind to a judge or jury. Almost none of the justices has ever tried a civil case to verdict. And before their honors became appellate judges, only one of their number served as a full-time trial judge. Does … Continue Reading

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  • 06/25/17--22:42: Into the Lions’ Dens
  • Location 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...… Continue Reading

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  • 07/02/17--22:02: Opt-Outs on Parade
  • 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...… Continue Reading

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