Class action news of note: Tobacco II arguments leaves everyone guessing, and more

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This past week, the California Supreme Court heard oral argument in the Tobacco II cases.  Extensive coverage of the oral argument is available from the UCL Practitioner in this post.  The obligatory reading of tea leaves has, in this instance, revealed little.  For examle, Mike McKee, writing for The Records, said, "Just a few weeks ago, the California Supreme Court ruled that lawsuits under the Consumer Legal Remedies Act can only be filed by individuals who suffer real damage from unlawful business practices. But during oral arguments on Tuesday it wasn't clear where the court stood on applying that same rule to every participant of class actions filed under the state's Unfair Competition Law."  (Mike McKee, Calif. Justices Air Standing for UCL Class Actions Against Tobacco Industry (March 4, 2009) www.law.com.)  Having watched the argument myself, I agree that it was hard to discern much from the Justices.  The cynic in me always assumes that the creep of Proposition 64 will keep on spreading its tendrils, but the argument itself gives me little actual evidence to support that guess.

Meanwhile, the significance of the Ninth Circuit's decision in Davis v. HSBC Bank Nevada, N.A., et al. (February 26, 2009) reached the legal media:  "In a blow to plaintiffs class action lawyers, the 9th U.S. Circuit Court of Appeals has made it tougher to hold that a national company is a 'citizen' of California merely based on the disproportionate size of the state's population."  (Pamela A. MacLean, 9th Circuit Deals a Blow to Plaintiffs Lawyers in 'Principal Place of Business' Test (March 9, 2009) www.law.com.)  Not that Tosco actually held that a state's population size governed corporate citizenship, but the remainder of the article is accurate.  This blog noted the decision in this short post.

Finally, while a bit late to the party, another ISP and the defunct Adzilla were sued for deep packet inspection for the purposes of obtaining the advertising holy grail: complete knowledge of each consumer's behaviors and preferences.  (Ryan Singel, Another ISP Ad Snooper Hit With Lawsuit (March 3, 2009) www.wired.com.)  I've already expressed my contempt for this behavior by ISPs.  Luckily, these projects appear dead in the United States.  But don't count on them staying down forever.

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Advice on getting the most from Acrobat 9 from the Delaware Employment Law Blog

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Compliments of @acrolaw on Twitter, I was directed to an excellent blog post entitled Making the Switch to Digital: Legal Research.  The article, posted by Delaware Employment Law Blog, includes some good advice about getting the most out of your online research and information management with Adobe Acrobat 9.  While I wouldn't necessarily implement all of the tips for myself, there is certainly some value in creating a pdf repository of authority used in research, particularly if you've ever considered creating a fully indexed e-brief.  I've seen one such brief, with each citation linked to accompanying authority, and its a thing of beauty.

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ANNOUNCEMENT: The Complex Litigator will soon be forced to migrate its RSS feed to a new location

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Feedburner, which provides the RSS feed from this blog to many readers, was purchased by Google quite some time ago.  Now, Google is in the process of moving the Feedburner service to its own servers.  The move is voluntary now, but will mandatory very soon.  I have read many reports of problems during the voluntary feed relocation period, which is why I have not yet changed the feed.  However, I believe that time is running out.  If you read this blog from a Feedburner feed, you can subscribe to the feed directly in newer versions of Outlook or various browsers.

UPDATE:  The feed from this site has been moved to Google's servers with no problem so far.  Many other users have reported problems with the move, but in this case it was trouble-free.  However, it isn't clear whether this will disrupt the site feed for subscribers.  If it does, give it a few days to sort itself out.

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Blog reading suggestions: Lawyerist and Caveat Emptor

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It's been a while since I suggested some additional law-related blogs for your consideration.  Here are two that are worth a look:

  • Lawyerist:  Dedicated predominantly to identifying technology to help the small firm stay nimble and keep up with biglaw.

  • Caveat Emptor:  Law, politics and news from a consumer advocate's point of view.

Take a look and see what you think.  Don't forget that RSS feeds can deliver most blogs to your e-mail inbox, RSS reader or browser.

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Ninth Circuit certifies interesting e-mail question to California Supreme Court in Kleffman v. Vonage Holdings

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As I play weekend catch-up and work through the list of items to consider for posting, I saw a Ninth Circuit case that I saved for its technology angle.  Periodically, the Ninth Circuit gets a tricky question of first impression about California law.  When the answer to the question could prove significant, the Ninth Circuit will occasionally certify a question to the California Supreme Court, in the hope that the California Supreme Court will bail them out and take the question.  In Kleffman v. Vonage Holdings, the Ninth Circuit certified this question:

“Does sending unsolicited commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters constitute falsified, misrepresented, or forged header information under Cal. Bus. & Prof. Code § 17529.5(a)(2)?

Yes.  Why yes?  Because there isn't any spam out there that isn't faking its header information.  Perhaps an overstatement, but so close to true that the differential is insignificant.  The fact that spam comes from multiple domain names is just an additional irritation.  Somebody oughta' file a class action...

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The Complex Litigator is beta testing a new TypePad post comment system

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TypePad is currently beta testing a new commenting system called TypePad Connect.  This comment system will allow for threaded comments, cross-blog commenting, limited html code in comments, and associated pictures of the comment author (if a profile is established).

Because TypePad Connect is in beta, the comments here may end up getting hosed.  Or I may lose the ability to delete the occasional spam post that people try to slip into posts without my noticing.  Or it may work wonderfully.  The point is, we're going out on the bleeding edge here, and someone might get hurt.  Not that this will matter much in practice; lawyers and other readers of law blogs appear to comment less than readers of any other type of blog

UPDATE:  So far so good.  Comments are still on posts, and they are styled in the new format.  Also, please be aware that the comment system is driven (I believe) by javascript.  Your browser setting may influence what you see, particularly if you are running something like NoScript in Firefox.

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What are lawyers doing with Twitter anyhow?

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Curious about that new-fangled thing called "Twitter."  Are you lost when colleagues discuss great "tweets" they read?  Then visit kevin.lexblog.com to see some examples of what lawyers are doing with Twitter.  Once you know how this social media tool is being used, it's a lot easier to decide if you want to incorporate it into your professional activities.  I was on the fence about Twitter for quite some time, but I like the idea of using Twitter as a micro-blogging tool to supplement blog posts, particularly when the information may not rise to the level of something I want to cover in a fully formatted blog post.

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Technology Revolution For The Legal Field

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The times, they are a changin'.  Alameda County is set to allow the a real-time web-based video feed of a complex personal injury trial.  This event touches on issues of technology, complex litigation and class actions.  Courtroom View Network will webcast the trial and host archived video on its website.  Next week I should have some sample video to share.  Check back here throughout the week for more information and access to video samples.

Here is some background information from Courtroom View Network's press release about this unusual event:

Courtroom View Network, the company that pioneered showing trials of interest to legal and financial professionals over the Internet, is showing live coverage of the welding fumes liability trial, Thomas v. Lincoln Electric Co. (Case No. RG0722122) in Alameda County (Oakland) Superior Court. The Thomas trial marks the first time allegations that a worker became ill from exposure to welding rod fumes has been heard by a California state court jury. The Thomas case is also the first time Courtroom View Network has been admitted to Webcast a trial from Alameda County.

The plaintiffs allege that welding rod manufacturers knew since 1932 that welding fumes are toxic. They also contend that the industry did not adequately warn welders that the fumes could cause various neurological disorders. Thomas alleges he has suffered “severe physical and emotional injuries” from welding fume exposure. The defendants deny all the allegations.

There is also a pending national class action suit involving thousands of plaintiffs who claim they were injured by welding rod fumes. Four “bellwether” trials have been held; one jury awarded $20.5 million in damages and another $2.4 million. The two other trials resulted in no damages being awarded.

Courtroom View Network is showing the Thomas trial on its Web site, www.courtroomlive.com.  The trial is aired in full, without commercials or commentary. The trial will also be indexed for on-demand viewing.

Courtroom View Network brings three years of experience of Webcasting high-stakes civil litigation to the Thomas trial. Courtroom View Network has covered multiple legal proceedings across the country, including such cases as “Jose Adolfo Tellez et al v. Dole Food Company Inc et al” and “Norman Turner v. Chevron Corporation” in Los Angeles Superior Court. Courtroom View Network’s target audience are members of the legal and financial community who require instant, comprehensive coverage of litigation that affects their business.

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Travelers Casualty v. Brenneke: How to serve a recalcitrant defendant

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Ninth Circuit SealJust because your case is complex doesn’t mean that you don’t have to worry about ordinary tasks . . . like serving parties. While The Complex Litigator doesn’t spend much time covering civil procedure issues outside of the class action device, there are exceptions to almost every rule, as with a recent Ninth Circuit decision regarding service of process. In Travelers Casualty and Surety Company of America v. Brenneke (January 9, 2009), the Ninth Circuit examined the nature of “person service” when a defendant studiously avoids service of process.

Describing the disputed service of process, the Court said:

“ In connection with its motion to enter default, Travelers submitted the affidavit of Phil Sheldon (“Sheldon”), a process server for Barrister Support Service, which Travelers had hired to effectuate service upon Brenneke. Sheldon stated that he had experienced “significant difficulty” in serving Brenneke in the past, and that he was aware of other process servers’ having experienced similar difficulty. He also indicated that he had successfully served legal documents personally on Brenneke on prior occasions. As to the current matter, he stated that he had made four separate visits to Brenneke’s home between March 17, 2006 and April 2, 2006, attempting to accomplish service. No one answered the door or intercom even though, on more than one occasion, there were two or three vehicles in the driveway. On both his first and third visits to that residence, Sheldon left a note for Brenneke to contact Barrister Support Service, but he did not do so. During what was apparently the fifth attempt, on the evening of April 2, 2006, an adult male answering to the name of Paul Brenneke responded to Sheldon’s ringing on the intercom at Brenneke’s residence. When Sheldon identified himself as a process server, that person responded “Oh great,” but never opened the door. However, Sheldon observed Brenneke standing behind the window next to the front door watching him. Sheldon then held the summons and complaint out towards the window, and announced in a loud voice “You are served.” Sheldon further indicated that Brenneke watched him place the documents on the doorstep. Sheldon thereafter completed a proof of service form.

(Slip op., at p. 166.) I find this sort of behavior very entertaining. Many years ago, I was counsel in a matter where one defendant jumped in a car and locked the door to avoid service. The papers were left on the windshield. I was successful in arguing that “personal service” had been effectuated.

District Court Judge George H. Wu, sitting by designation, delivered the opinion of the Court.  As an aside, the Ninth Circuit has made viewing new opinions very easy through their website with an embedded PDF viewer.

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Acrobat 9: The 10,000 mile review - Part 1

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Box_acrobat_9_pro_112x112It has been a long time coming, but The Complex Litigator has completed its review of Adobe’s latest version of Acrobat, which is version 9. Because of the length of this review, it will be posted in separate parts, over several days.

The Family of Acrobat 9 Products

According to Adobe, the Adobe Acrobat 9 product line includes 4 distinct products: Adobe Reader, Adobe Acrobat 9 Standard, Adobe Acrobat 9 Pro, and, at the top of the line, Adobe Acrobat 9 Pro Extended. Adobe Reader remains the free program used to view, as opposed to create, digital documents in the pdf format. Adobe Reader is not discussed in this review. As for the rest of the product line, I will focus this review on features that are more likely to be of interest to legal practitioners.

Executive Summary

Everyone is busy. I know that I often jump to the end of product reviews to get to the heart of the reviewer’s conclusions and findings. To make things simple for everyone, I am putting my concluding thoughts at the top of the review. Readers who want more detail about certain features can read through the series of posts that will discuss my impressions of this software.

I whole-heartedly recommend that attorneys using Acrobat upgrade to Acrobat 9. I also strongly recommend that you invest, at minimum, in the Pro edition if you haven’t yet jumped in as an Acrobat user. All variations of the 9.0 Acrobat series add tools that are valuable additions to law office workflow. For example, the ability to split large pdf files by file size, pages, or bookmarks cannot be properly valued until you or your support team have attempted to upload a 50MB pdf file to a court electronic filing system with a 10MB (or smaller) size limit on file sizes. Other features, such as shared document reviews with remote parties via acrobat.com, are likely to be adopted first by the tech-savvy but deserve your attention.

At the higher end of the product line, Acrobat 9 Pro offers additional tools of interest to legal professionals, such as advanced support for the new PDF Portfolio feature. This tool allows the creation of what amounts to an electronic document collection, with cover pages and layout templates. The collection is encapsulated in a PDF wrapper, like a zip file, but with interactive properties for the recipient. In addition, the PDF Portfolio tool can be used to organize and review case documents as a cost-effective alternative to major case management software, such as Concordance or Summation.

Acrobat 9 Pro Extended offers, as a major feature, the ability to covert PowerPoint presentations into a flash-embedded PDF document, complete with narration if desired. The value of this approach is that presentations can be made available online to clients, potential clients, or other professionals as a downloadable PDF that will play the presentation in the newest version of Reader. The incremental cost of choosing to upgrade to Pro Extended is minimal, and I would just spend the extra $40 or so for the Extended version upgrade. If you do not presently have Acrobat, consider whether the PowerPoint conversion feature matters in your professional activities as you choose between the $399 Pro version or the $629 Pro Extended edition.

I also recommend Acrobat 9 for the massive load time improvement. While I will discuss this issue in detail below, it is sufficient for this summary to note that the load time in my experience is probably three times faster. Slow-loading software is irritating. Acrobat 9 significantly corrected a source of irritation that had existed with several of the prior version of Acrobat.

My one word of caution is a consequence of the many features in all versions of Acrobat 9. If you’ve never used Acrobat, jumping into version 9 would probably seem like using MS Word 2007 as your first word processor or Excel 2007 as your first spreadsheet program. Acrobat 9 is a mature software product. I could not begin to relate the number of option settings for various features through Acrobat 9. I suspect that this program would seem somewhat overwhelming to a new user interested in moving beyond default settings. For example, a new user would not easily discover how to activate the ClearScan text smoothing feature when running OCR on a document (Go to Document>OCR Text Recognition>Recognize Text Using OCR, then select Edit and choose ClearScan option). There is nothing that can be done to eliminate this issue. Acrobat 9 is organized well, and has good support features built into the product. Beyond that, you may wish to explore Adobe’s Acrobat for Legal Professionals blog for legal industry-specific tips.

Highly Recommended by The Complex Litigator.

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