Class Action

Expert Analysis

• Courts Line Up Behind 3rd Circ.'s Ascertainability Logic

  

  Federal courts, particularly those following Third Circuit precedent, are paying more attention to the ascertainability of class members and companies in the food and beverage industries — where consumers do not typically retain receipts — should take note when challenging class certification, say attorneys at Nixon Peabody LLP.

• Your D&O Insurance Policy Post-Halliburton

  

  The U.S. Supreme Court decision in Halliburton Co. v. Erica P. John Fund may significantly increase defense costs at and prior to the class certification stage, so companies may wish to carefully consider their directors and officers insurance program and confirm that their policies would respond to cover expert witnesses and “event study” expenses, says Roberta Anderson of K&L Gates LLP.

• Litigator’s Perspective: 5 Tips On Arbitration Provisions

  

  It happens all the time. When a dispute arises, two parties find themselves in arbitration, realizing that they might have had more leverage to dictate the terms of the process when they were negotiating the arbitration provision — but missed the opportunity, says Daniel McCloskey of Duane Morris LLP.

• 6 Years In, Why Haven't FRE 502(d) Orders Caught On?

  

  In this e-discovery era, why aren't more litigants using Federal Rule of Evidence 502(d) orders and affording themselves basic protection of their most sensitive information? Or, if they are moving for such orders, why are they doing it wrong? asks John Rosans of Katten Muchin Rosenman LLP.

• Think Before You Transfer Your Product Liability Case

  

  Despite a decline over the past eight years, the U.S. Judicial Panel on Multidistrict Litigation continues to grant far more product liability transfer motions than it denies. Considering parties' geography and preferences, among other factors, will help when advising clients with centralization and the selection of a transferee court, say attorneys at Jones Day.

• High Court Will End Circuit Split With Libor MDL Case

  

  The U.S. Supreme Court's acceptance of Gelboim v. Bank of America Corp. will resolve a circuit split on whether a plaintiff can immediately appeal the district court’s dismissal of a lawsuit that has been consolidated with other suits that are still pending, but it is merely the first of several steps needed to revive the bondholder plaintiffs' antitrust claim, say Stacey Slaughter and Thomas Berndt of Robins Kaplan Miller & Ciresi LLP.

• Trial-Ready In 180 Days: Prepare For SDNY's Rocket Docket

  

  A growing trend in the Southern District of New York akin to a sua sponte rocket docket can provide defendants with an opportunity to set the tone of discovery and shift the burden and risks of the schedule to their adversaries, say Isaac Greaney and Jackie Lu of Sidley Austin LLP.

• When You Are Responsible For Your Book Of Business

  

  Finding prospective clients and retaining them has little to do with your legal training and expertise, and yet you have no practice without successful client acquisition and retention. There is no reason you cannot apply your basic legal training to successful sales efforts hinging upon your practice strength and experience, says independent law firm consultant Jennifer Topper.

• 9th Circ. Thinks Inside The Bun In Taco Bell TCPA Suit

  

  A Ninth Circuit decision in Thomas v. Taco Bell Corp. provides much-needed guidance and a clear limitation on the vicarious liability concepts introduced by the Federal Communications Commission to the Telephone Consumer Protection Act litigation mix, say Paul Werner and J. Aaron George of Sheppard Mullin Richter & Hampton LLP.

• An Inventive Way To Remove Pure State Court Claims

  

  Nondiverse state court defendants facing purely state law claims that seek to secure federal jurisdiction should determine whether a good faith basis exists to pursue a third-party action against a federal actor in order to trigger the representative U.S. Attorney’s certification and remove such claims under the Westfall Act, say Michael Blumenfeld and Jonathan Singer of Miles & Stockbridge PC.