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My New Article on Bristol-Myers Squibb in Class Actions

August 9, 2018

If you have access to Law360, check out my article “Why Bristol-Myers Squibb Applies to Absent Class Members,” which ran as a three-part series August 7th through 9th. It had a different title when I submitted it, and I have not read the published version. I was too busy to notice it was running until someone told me. I started out to write a short treatment of the irrational, internally contradictory results of courts that have declined to apply BMS to class members, and ended up writing a 5,000-word, deep-dive critique. I will post a reprint when I receive it. Let me know what you think.

Sixth Circuit Nullifies Predominance Requirement

July 22, 2018

In the past 5-10 years, the Sixth Circuit Court of Appeals has become much friendlier to class actions, and on July 16 it took another step in that direction by joining those courts that have held that an “issue class” may be certified under Rule 23(c)(4) even though the case as a whole fails to satisfy Rule 23(b)(3)’s predominance standard. See Martin v. Behr Dayton Thermal Prods., LLC, 2018 U.S. App. LEXIS 19441 (July 16, 2018). This reading effectively nullifies the predominance requirement of Rule 23(b)(3) by ensuring that it is automatically satisfied in any case merely be selecting “common questions” and saying “issue class.” It has perplexed defense lawyers for years yet has now been adopted by several circuits. The three reasons for it given by the Sixth Circuit panel have all been argued before and still fare no better than they ever have—weak to say the least.

Avoiding Constructions Rendering Language Superfluous

Echoing other courts and commentators adopting the “broad approach” on this issue, the panel first said, “the broad approach respects each provision’s contribution to class determinations by maintaining Rule 23(b)(3)’s rigor without rendering Rule 23(c)(4) superfluous.” Id. at *13. This argument is well worn but still essentially stands reality on its head.

The “narrow approach,” applying Rule 23(b)(3) “first” does not render (c)(4) superfluous at all. Rule 23(c)(4) explicitly authorizes what is implicit in (b)(3) (and other subdivisions of (b)): that a class may sometimes be certified as to some but not all issues. If a court certifies a set of questions for class treatment, after finding that common questions predominate over individual ones, that certification order falls under (c)(4), whether or not it is explicitly cited. If (c)(4) were not there, the authority would have to be inferred.

Martin also states, “the broad view does not risk undermining the predominance requirement.” Id. But in fact the “broad approach” completely nullifies the predominance requirement. So long as there is one common question, and individual questions are excluded from the predominance analysis, then by definition common questions always predominate.

The Prior Language

The Martin panel said the “broad view” follows from the concluding clause of the pre-2007 version of (c)(4), which said, “and the provisions of this rule shall then be construed and applied accordingly.” Id. at *13-14. The panel read this clause as prescribing a sequential analysis, and as expressing the real intent of the present rule, because the 2007 amendments were designated as “stylistic” only. The panel also noted that the Advisory Committee has declined to amend the rule to reject the “sequential” interpretation, and that “the various circuits seem to be in accord” in adopting it. Id. There are no less than four problems with this argument.

First, as Professor Laura Hines has shown, the most faithful reading of the prior version of the rule is probably that the concluding clause only applied to what was then (c)(4)(B), which provided for subclasses, not to (c)(4)(A) and particular issues. Laura Hines, Challenging the Issue Class End-Run, 52 EMORY L. J. 709, 717-18 (2003). It was, after all, appended to (B).

Second, as she has also shown, the circuits in fact are not in accord on the “broad approach.” Laura Hines, Codifying the Issue Class Action, 16 NEV. L. J. 625, 628 (2016).

Third, that prior language didn’t necessarily imply the sequential analysis the “broad view” assumes. Just as “[w]hen appropriate” does not answer the question of when certification as to particular issues is appropriate, “then … accordingly” does not answer the question of what “accordingly” means. It is just as consistent with that language to apply Rule 23’s requirements as in any other case, and to understand (c)(4) to state explicitly what (b)(3) implies – when there are both common and individual questions, it is possible to certify a class for the common questions, if all the requirements are satisfied.

Fourth, the panel’s interpretive approach runs backwards. Taking at face value that the 2007 amendment was intended to be merely stylistic, that means the rule was revised to better state its intent, and we should understand the prior version in light of the current version, not the current in light of the prior.

The Superiority Backstop

Finally, the Martin panel said (b)(3)’s superiority requirement protects against “inefficient use of Rule 23(c)(4).” The major problem with this argument is that it contradicts the court’s own “broad view” approach. If the proper construction of (c)(4) is that particular issues are selected for class treatment, and “then” the rest of Rule 23 is applied, why is superiority different? Simply put, there is no logical or textual basis why the predominance standard should be applied solely to the “particular issues,” when superiority should be applied to the case as a whole. Defendants can at least be grateful that the court kept the superiority requirement in effect, but the right answer would have been to recognize that the predominance standard applies to the whole case, just like superiority and all the other requirements do.

Because the court in Martin failed to do that, defendants in the Sixth Circuit will have to ensure that courts give superiority and the requirements of 23(a) real teeth.

Digital Realty Dodd-Frank and In re Hyundai & Kia Settlement Updates

March 20, 2018

Here are two recent bulletins I wrote for my firm. The U.S. Supreme Court held in the Digital Realty case that corporate whistleblowers must report to the SEC and not just internally to benefit from Dodd-Frank’s whistleblower rules. In the Hyundai & Kia case, the Ninth Circuit applied a heightened standard for certification of a settlement class, arguably making settlement of class actions more challenging.

Dodd-Frank Whistleblower Protections Apply Only to Employees Who Report Alleged Securities Violations to the SEC

Ninth Circuit Enforces Heightened Standard for Certification of Settlement Classes

Don’t Blame the Oxford Comma But Rather Blame Its Omission

February 9, 2018

“Aided By Oxford Comma, Dairy Farmers Reach $5M OT Deal” — so reads the faulty headline for an article linked below you can read on Law360 today, if you subscribe, about the case of the dairy drivers who claimed entitlement to extra pay under Maine’s overtime law.

The headline is wrong, because it was the lack of an Oxford comma in Maine’s statute that let the drivers avoid dismissal of their claim last year, on the theory that the exclusion of employees engaged in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment and distribution” did not apply to those merely engaged in distribution. They were not “packing for shipment and distribution.” Surely that was not what the legislators meant to say.

I’ve never understood the irrational prejudice of some against the Oxford comma. Omitting it is unsightly, and using it is proper parallel construction and, most importantly, avoids confusion. Using it will never cause confusion. The Oxford comma is right. You should use it.

[This is a duplicate post (nearly). It’s a long story.]

Aided By Oxford Comma, Dairy Drivers Reach $5M OT Deal

 

 

Don’t Blame the Oxford Comma But Rather Blame Its Omission

February 9, 2018

“Aided By Oxford Comma, Dairy Farmers Reach $5M OT Deal” — so reads the faulty headline for an article linked below you can read on Law360 today, if you subscribe, about the case of the dairy drivers who claimed entitlement to extra pay under Maine’s overtime law.

The headline is wrong, because it was the lack of an Oxford comma in Maine’s statute that let the drivers avoid dismissal of their claim last year, on the theory that the exclusion of employees engaged in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment and distribution” did not apply to those merely engaged in distribution. They were not “packing for shipment and distribution.” Surely that was not what the legislators meant to say.

I’ve never understood the irrational prejudice of some against the Oxford comma. Omitting it is unsightly, and using it is proper parallel construction and, most importantly, avoids confusion. Using it will never cause confusion. The Oxford comma is right, and it isn’t optional in my book.

Aided By Oxford Comma, Dairy Drivers Reach $5M OT Deal

 

 

Publications on Bristol-Myers Squibb, Class Tolling, and Statistics in Class Actions

February 7, 2018

Yesterday, I posted my article appearing on WLF Legal Pulse about how federal district courts are applying the Supreme Court’s Bristol-Myers Squibb ruling in class actions. That article was a follow-up to my WLF Legal Backgrounder article on the BMS decision published in September 2017. Below is a PDF of the September article.

WLF Article

In addition, I have added a Publications page where I will put PDFs of some of my previous publications, as I have time. Along with the BMS article, for now I have placed two PDFs there.

The first is my slide set on Statistics in Class Actions from the Stafford webinar I did with Paul Karlsgodt on January 23. Paul and I have done these webinars a number of times now over the past seven years. I have been interested in statistics and econometrics in class actions for many years.

The second is my article “Three Circuits Say Shady Grove Requires American Pipe Tolling for Serial Class Actions:  Are They Right?”  This article was published in the Summer 2017 newsletter of the CADS committee of the Litigation Section of the ABA.

I’m always happy to discuss these and related topics.

My WLF Blog Article on the Supreme Court’s Bristol-Myers Squibb Decision in Class Actions the District Courts

February 6, 2018

My blog article “District Courts Divide Over Application of Bristol-Myers Squibb Decision to Class Actions” appears on the Washington Legal Foundation’s WLF Legal Pulse blog. This article is follow-up to my previous WLF Legal Backgrounder article, “What the Supreme Court’s Latest Personal Jurisdiction Ruling Means for Mass and Class Actions.” I will post the latter. Here are a PDF copy of, and a link to, the blog article from yesterday.

District Courts Divide Over Application of Bristol-Myers Squibb to Class Actions

2-5-18Troyer_LegalPulse_WLF_Article

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