Blawg Review #221

Tough acts to follow. Blawg Review #220 was hosted by Overlawyered, believed by many to be the Internet’s oldest law blog. Then there was Blawg Review #214. We won’t speak much of that blawger from the UK who takes a bit too much delight in his smokedo, and his consumption of alcohol in its many forms, and his jabs at England’s prodigal child, the United States. No, we won’t dally there. And let’s not overlook the beautifully styled and beautifully written Blawg Review #216 (and be sure to “Click this link to continue...” if you want to know what I’m talking about). All of them and many others - tough acts to follow.

And so, realizing that I just have to do what I do best to present a credible Blawg Review #221, I turn back to Overlawyered and Blawg Review #220 for inspiration. Overlawyered comments on (criticizes) the costs of the American legal system. According to Overlawyered, you don't always have to hire a lawyer. Not for every little thing. Sometimes, you “just have to get over it.” But sometimes...if you wait until you have lots of people suffering lots of little just have to file a class action...


Remember, remember the Fifth of November...

So I promised that I wouldn’t dwell on “that blawger,” the author of Charon QC and notorious host of several Blawg Reviews. But before I direct your attention to the best (or not necessarily so) of the blawgosphere over the last week, there is something I want to talk about first: Guy Fawkes Night, also known as Bonfire Night. It seems that some well-intentioned, but ever-so-slightly misguided gang of Catholics (including Guy Fawkes) planned to blow up the Houses of Parliament in London on November 5, 1605. They might have succeeded, too, if one of the conspirators hadn’t been so worried about the number of Catholics in line for collateral damage status that he sent a warning note to Lord Monteagle.

Why do I care about any of this, you ask? It has to do with the resulting holiday and an important lesson that we can draw from it. Until 1859, it was mandatory to celebrate the failed assassination attempt by lighting bonfires each November 5th. So, in England you need an official holiday and an order of the King to light a bonfire. Here, in America, all you need is for a professional sports team to win a championship. See, Man Charged for Arson in Lakers Melee. The child surpasses the parent. Keep your soccer hooligans, England. We have <em>real</em> idiots. By the way, Charon QC, it’s “organization,” not “organisation.” Just thought I’d tweak your English a bit. It seems to have stopped evolving a few centuries back, after all the Americans left. Although I concede that I prefer your punctuation rules for quotation marks.  Lay on, McDuff.


Class Actions

Based on the number of daily visitors and readers at The Complex Litigator, the odds are good that you, kind reader, are visiting for the first time. That is not to say that this blog has no readers. It’s just that Blawg Review is at another level entirely. Thus, for those that are new visitors, I will introduce this blog and its primary area of pontification.

This blog is mostly about class actions. I would say that this blog is about “complex litigation,” but what actually qualifies as “complex litigation” is a bit of a judgment call. A class action, on the other hand, is fairly easy to spot, being that it is a lawsuit that calls itself a “class action.”

One might think that there are a lot of class actions, based upon the attention they receive in the media. In so thinking, you’d be wrong. As this blog noted some time back, several thousand class actions are filed each year in California, which compares somewhat poorly against civil filings totaling 1,418,490, and civil dispositions totaling 1,268,153 in FY 2005–2006. In a Judicial Council study, statistics taken from 12 sample courts around California revealed that class action cases represented less than one-half of one percent of all unlimited (greater than $25,000 in controversy) civil filings in the sample courts during the study period spanning 2000-2006.

So why all the fuss? One simple answer is that the level of fuss is proportionate to the size of the check written by the typical defendant. In the case of class actions, those checks tend to be much larger and draw more public attention as a result. And, by that measure, class actions are despicable. For example, the Institute of Legal Reform (right...a public service it is), an affiliate of the U.S. Chamber of Commerce (now we see the motivation), writes about The American Export You Don’t Want. It seems that some European countries, which do not have class actions of the type used in the American legal system, are contemplating adopting a form of the class action procedural device for mass litigation management. It’s hard for me to know whether to be excited by this news. On the one hand, Europeans have, as of late, shown the decidedly good judgment of moving away from the implausible socialism that dominated decades past. On the other hand, the E.U. thinks that it knows better than an upstanding American software company whether an Internet browser is or is not part of the core operating system on a computer. Thus, I have no idea whether their interest in class actions is motivated by a desire for market-based regulatory enforcement or some irrational pique.

On that same note, Popehat asks, What Do Rome, England, Germany, and Hamsters Have In Common? Turns out they’ve all conquered France. After the rimshot, Popehat goes on to observe that a representative action on behalf of abused hamsters will likely result in a decidedly American outcome: “If this follows the lead of American class actions, the lawyers will get $36.999 million and the hamsters will each get a coupon good for 10% off of a box of Hamster Chow, redeemable in a store operated by feral cats.” More than fair, I say. Those hamsters need chow anyhow, and a coupon’s a coupon. I apologize if you’ve seen this post that is several weeks old, but it deserves to be here.

In case you were wondering, my political leanings remain a bit vague on this blog, but I am definitely not a socialist. I leave the task of reconciling my occasional political observations and my defense of the class action device to each reader. The most amusing part is hearing the different deconstructions that follow from this reconciliation.

And now, more on class actions and blogging. Nothing about Blawg Review’s guidelines suggested that a post has to be long to be included. So I assume that quality over quantity is an acceptable measure (though we have both right here at The Complex Litigator, if I do say so myself. References available upon request.). The newsworthiness and timeliness of a post is as important as its length. On July 14, 2009, the new blog Oregon Class Action Blog reported that the State of Minnesota sued the National Arbitration Forum on July 14, 2009, over unfair credit card collection arbitrations. On July 19, 2009, Businessweek reported that the National Arbitration Forum was withdrawing from the credit card arbitration business entirely as part of a consent decree. It’s not easy to stay on top of a story lasting 5 days. Good job, Mr. Sugerman.

If you hang out with drugs and medical devices long enough, you end up with (1) a great party, (2) a horror movie, or (3) a whole bunch of opportunities for class actions! Jim Beck and Mark Herrmann hang out with drugs and medical devices, defending their manufacturers, and while I can’t speak about their experiences with options one and two, they do have a bit to say about class actions. This week, Drug and Device Law Blog offers a spirited defense of the proposition that punitive damages are unconstitutional in class actions in their article, Going Our Way? Class Actions, Punitive Damages & Due Process. They call their article something of a “legal smackdown” after a recent law review article criticized their position on the unconstitutionality of class actions for punitive damages, calling their views "tainted." In their post, they reiterate and explain their position, and critique the thesis of the law review article.

Sometimes the helpful government implements regulations that are so impossible to keep straight with other laws and regulations that widespread violations are almost inevitable. Class actions end up as the preferred tool for forcing compliance. HealthBlawg offers a warning to medical providers that they, soon, will need to reconcile their HIPAA and ARRA compliance policies with new rules from the FTC that impact a wide variety of “creditors” in many industries: Red Flags Rule: The FTC piles on, because HIPAA, ARRA and overlapping state laws just weren't enough. Good luck with that, Mr. Harlow. I think I smell blood in the water...

Class actions receive more than their fair share of criticism. But then again, when big piles of money and lots of people are involved, you’re bound to find some naughty behavior. writes about one case, in which naughty attorneys promised incentive awards of specific amounts to the potential class representatives: Incentive Awards OK, But Not Incentive Agreements.

I know what you are thinking. The Class Action Fairness Act isn’t a laughing matter. That just means you haven’t read CAFA Law Blog. This past week, CAFA Law Blog explains why Dual Citizenship Does Not Give You a CAFAteria Pass to Eat at the Buffet in Federal Court. CAFA was designed for the primary purpose of dragging all but the smallest class actions and mass actions into federal court. Given the ferocity over which parties fight about remand, you’d have to think that plaintiffs don’t want to be in federal court and defendants do. I wish that there was a source of reliable statistical data tracking contested certification rates in state and federal courts, but I am unaware of comprehensive source. The study prepared by California’s Judicial Council (mentioned above) revealed that certifications occurred in contested cases at a rate that was most likely well below 20%. That’s lower than the appellate reversal rate in recent years in California’s appellate courts. Still, when the stakes are high enough, even single percentage points matter.

Some of my favorite class action and class action-related blogs have been fairly quiet in recent weeks. As a result, while preparing this edition of Blawg Review, I looked back a few weeks for class action news of interest. On Point supplies one story too good to exclude, the end of a class action lawsuit challenging the absence of “Crunch Berries” in Cap’n Crunch cereal: Lawyers’ Cereal Litigation Suffers Crunching Blow. News like this explains why life at Overlawyered is so easy. In baseball parlance, this is known as serving up a fat one. Translated into British English, this is known as throwing a ball that is very easy to hit with one of those funny bats while playing cricket, which is like baseball but much goofier.

Despite the recent lull due to other pressing business, you still shouldn’t overlook The UCL Practitioner, as she comments on all manner of decisions, such her recent post entitled Massachusetts Supreme Judicial Court strikes down no-class-action arbitration clause: Feeney v. Dell, Inc., and other decisions affecting consumer litigation. Kimberly Kralowec, author of The UCL Practitioner, is a former host of Blawg Review and is usually out front with posts about class action and consumer law news affecting or of interest to California attorneys.

I want to end my discussion of posts emphasizing class actions with a special note of thanks to Shawn Westrick, a co-worker of mine, and the first true Contributing Author at The Complex Litigator. He earned his title when he came through with a second post in two weeks about recent California Supreme Court decisions involving the Labor Code Private Attorneys General Act of 2004. PAGA actions will be inspiring confusion and awe in wage & hour actions, now that the California Supreme Court has determined that PAGA actions need not be certified to proceed as representative actions.


Sotomayor's Confirmation Hearings

It’s arguably big news that a new United States Supreme Court Justice is, by all accounts, about to be confirmed by the Senate. It’s also allegedly big news that Judge Sotomayor will be the first Hispanic member of the United States Supreme Court. It’s also allegedly big news that Judge Sotomayor will be the third woman to ever sit on the United States Supreme Court. As for the last two, wouldn’t Martin Luther King be so proud to know that we’re still checking off quota boxes to prove how egalitarian we’ve become? Sounds more like a scrivener on Noah’s Ark: “Two lions. Check. A Hispanic. Check. Third Woman – who’s also Hispanic. Double-check.” We’re eventually going to choke ourselves on the fumes of our societal guilt if we don’t move on to a place where ability matters first.

As for the first observation, Judge Sotomayor is more likely than not a “liberal” in a very general sense. She replaces a Justice that was generally liberal. Very exciting. But perhaps that’s just the grumpy cynic in me.

Regardless of your political leanings, you have to admire anyone that makes it as far as one of the United States Court of Appeals and sits on the cusp of appointment to the United States Supreme Court. I recall the giddy sensation when I was admitted to the bar of the United States Supreme Court. I was elated to know that I had permission to speak in front of that Court. I can’t fathom the notion of being confirmed to sit on that Court. Speaking of which, I won’t be holding my breath waiting for my appointment. I recall a reporter saying a few days ago that Senators’ expressions were inscrutable after receiving a briefing from the FBI on their investigation into Sotomayor’s background. If that had been a briefing on my background, the Senators would have returned from the briefing with that sallow look and vomit stained chin seen only on persons whom have received far too much information and wish they could wash their ears out with soap. Or they’d have high-fived me.

I now direct your attention to the wealth of commentary about Judge Sotomayor’s confirmation process.

Balkinization provides a wealth of information about the confirmation process. But first, Balkinization asks, What are Supreme Court confirmation hearings good for? Balkinization answers that questions by delicately suggesting that the confirmations are a dog and pony show for Senators to pontificate, look important, and speak to their core constituents. (The dog and pony show comment is my editorializing.) Next, Balkinization provides A Brief History of Supreme Court Partiality. It turns out that we’ve been blasting nominees for bias since Chief Justice John Marshall announced his retirement. Balkinization completes our education about the confirmation process by reviewing the famous testimony elicited during the Confirmation Hearings of Master Yoda, Day Two:

Senator Patrick Leahy: Now I wanted to get your views on some constitutional issues. To begin with, what is your opinion of President Bush and Vice-President Cheney and their views of executive power?

Yoda: Always two there are, no more, no less. A master and an apprentice. But which one is the master and which one is the apprentice?

PrawfsBlawg treats the confirmation questioning as an opportunity to discuss how judges can “use” foreign law in the educational, rather than conceptual sense: Misunderstanding Judging: Foreign Law.

Volokh Conspiracy presented a look from the inside of the confirmation circus; Ilya Somin testified at the confirmation hearings and blogged about the experience.

PointofLaw theorizes that Judge Sotomayor’s very controlled testimony may undermine President Obama’s ability to appoint Justices with a more decidedly liberal bend. Additional thoughts can be found in the post entitled Deconstructing Law and Sotomayor’s Testimony.

ScotusBlog runs with the baseball imagery (no cricket for us yanks) in Box Score: Calling “balls and strikes” at Sotomayor’s confirmation hearing. Here’s a preview: “An (incomplete) review of the senators’ written statements and oral testimony finds the phrase ‘balls and strikes’ used 11 times, ‘umpire’ or ‘umpires’ used 16 times, and ‘playing field’ used twice today.”

Likelihood of Success expresses second thoughts about guarded enthusiasm for Sotomayor when asking Was Rosen Really Right?

Carolyn Elefant, at My Shingle, uses the confirmation hearings to discuss an interesting ethics issue. In The Lessons of Sotomayor and Associates, My Shingle discusses the bending of the truth by solo practitioners that append to their firm names “and Associates,” which Sotomayor apparently did some years ago.

I’ll wrap up the Sotomayor-inspired posts by mentioning Concurring Opinions, which also talks (briefly) about The Confirmation Hearings.


Around The World And Back Again

Class actions often utilize statistics to determine all sorts of information, from liability to damages. But Carl Gardner explores what happens when you take sacrifice common sense for statistical methods in Truth, bias and blue taxis.

Charon QC reviews and raves about the book BabyBarista and the Art of War. After reading the book, Charon QC says that “whatever he was drinking as he plotted out and wrote BabyBarista and The Art of War... I want some... it certainly does the business.” According to Charon QC, BabyBarista is proof that not all barristers are boring. Geeklawyer’s Blog concurs and revels, “BabyBarista enters the fray with his Machiavellian flailing, undoing all attempts at the rehabilitation of our image. Excellent.”

China Law Blog explains that it’s not as hard as one might thing to do business in China: Enforcing Contracts In China. Way, Way Better Than You Think.

Family Lore describes a nearly inoperative family law court that is Barely Functioning. That phenomenon isn’t unique to family law, or England. For example, courts in Los Angeles are now closed one day a month because of the bankrupt state I live in is so incompetently run that even its massive resources are insufficient to fix freeways and keep courts open.

Defending People lauds Anita Mugeni: Criminal Defense Hero of the Day for her work in Rwanda, where she is one of only 300 lawyers and was responsible for training 80 of them to work as criminal defense lawyers.

Idealawg offers guidance on the art of storytelling in closing arguments.


The Law Beyond: What I Don't Practice

I know something about class actions. I know a bit about employment law. I’ve handled a fair number of appeals. And I’ve learned that what I know is a drop in the bucket. Here are some posts from the wide variety of legal subjects that comprise bits and pieces of “the law.”

Ideoblog explains that legislators are thinking of crushing non-public businesses with SOX-like disclosure requirements: SOX for the little guy.

TradingSecrets discusses IBM’s ongoing efforts to restrict post-IBM employment of its former executives: First Apple, Now Dell: IBM Pursues a Departing Executive.

I don’t know what to say about The Arab-Israeli Peace Process as a Real Estate Transaction, but I commend Opinio Juris for writing it.

The photographer of the image used for the Obama “Hope” poster has joined the fracas over the use of the photo. Marquette University Law School Faculty Blog comments about the new player in The Obama “Hope” Poster Case — Mannie Garcia Weighs In.

In HITECH Headaches: HIPAA issues for Business Associates, The Employment News Spot explains that HIPPA penalties now apply to entities providing services to covered entities. Here’s yet another example of a significant law sliding into operation without much fanfare but with much potential to trip up companies unaware of its passage.

Does your insurance company cover you for cyber attacks or denial of service outages? Corporate Insurance Blog discusses this new frontier of insurance.


Interesting Miscellany

Eugene Volokh, of the famous Conspiracy, politely let a Feminist Law Professor feel his ire in his post "Where Are The Women? A precious few were published in recent addition of the UCLA Law Review", after she criticized the lack of female authors in a Symposium edition dedicated to the Second Amendment.

Google continues to face challenges by trademark holders over its AdWords practices. Blogger Eric Goldman tries to keep up with the mounting suits but is showing signs of fatigue.

Mad Kane’s Political Madness is pretty angry about’s ability to yank books you’ve purchased off your Kindle. I have to admit, it would be strange to come home and find that your paperback book had been repossessed and replaced with a credit for future purchases.

In Search Of Perfect Client Service challenges the notion that you can’t be dedicated to your profession and enjoy a quality of life outside work in the post: Work Life Balance and the Kobayashi Maru. As an employee of a law firm, I have no comment. None. Simple Justice offers the contrarian view to the work-life balance debate.

Above The Law weighs in on the controversy surrounding a visiting professor at NYU Law School. Dr. Li-ann Thio is credited with some remarks that would not be described as supportive of a non-hetero lifestyle (I’m not interested in having filters block my blog, hence the circumspection). The Volokh Conspiracy weighs in with a discussion that is somewhat more academic in its approach. That’s “academic” as in scholarly, not simple.


The Periphery: All That Stuff You Want Or Need To Practice Law Better

Lawyers need to write well. I say that Twitter won’t help to improve your writing. But there are ways to do so: 7 Simple Ways to Improve Everything You Write.

Lawyers, those scoundrels, aren’t considered entirely trustworthy. But lawyers need to be trusted. Learn techniques for making your firm more trustworthy: Four Principles of Organizational Trust: How to Make Your Company Trustworthy. Speaking of trust, Adrian Dayton hosts the July edition of the Carnival of Trust.

I love my iPhone and it loves me. I stroke it and it tells me things. Sui Generis – a New York law blog says Practicing law: There's an iPhone app for that. Not the phone-stroking part... Just wanted to clear that up.

Oh, look, Another new networking site for lawyers, at Robert Ambrogi’s LawSites. The site is HubSTREET. I can barely keep up with the ones I do use, so what makes anyone think that I’m going to add another?



I grew up in Las Vegas. As a kid, I thought it seemed like a shady place. Legally Unbound agrees, noting that Nevada Needs Strict Judicial Canons, Increased Judicial Evaluations, Not Judicial Appointment By The Governor.

Unsilent partners writes about The legalo-ethics position on assisted suicide. No jokes to see here.

Twitter. Facebook. LinkeIn. Do you spend any time considering the ethical implications of these new marketing tools. does, in Legal marketing ethics in a web 2.0 world.


That last paragraph mentioned Twitter. That’s makes this as good a time as any to wrap this edition of Blawg Review. After all, Twitter is the alpha and the omega of legal networking. It is the panacea that will solve all problems, build community, develop clients and spread accurate news with greater speed than any conventional media. I’d better upload this post so I can Twitter about it. I not supposed to thank the sherpas, so I won’t.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.