Everything old is new again, but upside down and backwards

The RICO Trend in Class Action Warfare looks at the use of RICO suits against plaintiffs' counsel in mass action and class action filings, concluding that the tactic incorrectly attacks aggregate litigation procedures rather than specific, underlying fraudulent conduct.

Ted Frank sure loves all class actions...

I just haven't found an instance yet where he actually commended the outcome of one.  But I'm looking.  Still looking...

I was going to link to a very recent example of his affection for a particular class action settlement by directing reader to a post on the blog he edits for publisher Center for Legal Policy at the Manhattan Institute.  However, his post is, arguably, defamatory and/or slander per se.  If I link to it, I could, theoretically, be construed as a republisher.  So, my apologies; I can't supply authority to support my sarcasm.

McDonald's sued to stop it from offering toys in Happy Meals; Opponents of personal responsibility celebrate

According to Reuters, the Center for Science in the Public Interest is representing a mother of two in a suit agasint McDonald's.  The suit alleges violation of California consumer protection laws.  McDonald's removed the suit to the United States District Court for the Northern District of California.

I have a kid.  I sometimes let her eat McDonald's.  I could say no to a request to eat there.  That's my choice.  But if McDonald's axes Happy Meal toys to deal with these claims, then I will have less choice, thanks to people that think they can do a better job than I can of raising my child.  Have we completely lost our minds?  Plenty of companies do actual, real, bad things.  We just dilute attention from real misconduct when we shove responsibility for our sloth and inattention onto businesses.  Underpaying employees: bad.  Undisclosed toxins in food or medication: bad.  Defrauding investors: bad.  Kids eating too much junk food: lack of parental discipline (unless the children are out buying their own food, in which case it is a lack of parental oversight).

Court certifies Apple-AT&T monopoly abuse suit

United States District Court Judge James Ware, of the Northern District of California, certified certain claims in a class action lawsuit alleging that the 5-year iPhone exclusivity arrangement between Apple and AT&T created a monopoly of sorts.  WindowsITPro has additional, interesting comments here.  I feel like such a victim.  Luckily, they didn't get my money for the iPhone 4 yet, which apparently has a bit of an issue with its exposed antennas.

Other coverage of Coito v. Superior Court

Coito v. Superior Court (March 4, 2010) is apparently generating a fair bit of interest, based upon the search engine traffic viewing this blog's post about this new opinion.  Other articles that may be of interest include: 

More commentary will likely follow; this decision seems to have hit a nerve.


More coverage of the decision in Morgan v. AT&T Wireless Services, Inc.

As the first published California appellate court decision to apply Tobacco II, the Opinion in Morgan, et al. v. AT&T Wireless Services, Inc. (September 23, 2009) (covered on this blog here) is receiving quite a bit of attention. On October 9, 2009, the Bureau of National Affairs, Inc. ("BNA") published an article entitled "Court Applies Tobacco II: Prop 64 Changed Standing Requirements, Not Substantive Law" in the Class Action Litigation Report. Kimberly Kralowec, partner at Schubert Jonckheer Kolbe & Kralowec and The UCL Practitioner, and I were both quoted in the article. The article is reproduced below with the gracious permission of BNA.

Reproduced with permission from Class Action Litigation Report, 10 CLASS 906 (Oct. 10, 2009). Copyright 2009 by The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com:

If flash is not available in your browser, the article can be accessed here.

Every now and then the question "Where are the bodies buried?" turns out to be legitimate discovery

If you dig deep enough in litigation, you may get down to the real dirt.  But if your class action alleges desecration of human remains, you don't have to dig too deep to uncover the grave truth.  In Sands v. Service Corporation International, a putative class action filed September 10, 2009 in Los Angeles County Superior Court, it is alleged that Defendants:

  1. Secretly broke and opened interment vaults;
  2. Secretly dumped and desecrated human remains, including but not limited to skulls, from interment vaults that were improperly broken or opened, in order to cover up their wrongful acts;
  3. Secretly interred humans remains in locations other than the plot in which the remains were to be properly interred;
  4. Secretly plotted and sold interment plots on top of already scattered human remains, and thereafter secretly interred the recently deceased on top of those scattered human remains;
  5. Secretly “lost” the human remains of individuals without disclosing to family members or others that the deceased was not in fact interred in his or her designated plot;
  6. Secretly interred individuals in the wrong plots;
  7. Intentionally, recklessly, and/or negligently misinformed family members of the deceased as to the state and condition of interment plots, vaults, interments, and human remains; and
  8. Intentionally, recklessly, and/or negligently published, disseminated, circulated and/or placed before the public, either directly or indirectly, statements that were untrue, deceptive and/or misleading regarding the business patterns and practices at Eden Memorial Park.

Complaint.  But it gets better (or worse).  According to Fox News Los Angeles, a former cemetery worker has come forward with allegations that body parts from overcrowded gravesites were routinely discarded.  Isn't nice to see how we all pull together in tough economic times and place family at the center of our priorities?

The first class actions I ever worked on were cemetery class actions.  No other type of misconduct seems to hurt more people in a more personal way than when they learn that the remains of their loved ones were discarded with the trash.  Things like this shouldn't still be happening.

Two recent class action lawsuits against AT&T and Apple raise interesting questions about adequate disclosures

Two class action lawsuits have been filed against AT&T and Apple over the current lack of MMS (multimedia messaging) support for the iPhone 3G and 3GS.  But first, some basic technical background information is in order.  MMS permits the transmission of pictures, video and other media over an extension to the SMS standard (text messaging system).

"The first lawsuit, filed in the Southern District of Illinois by Tim Meeker, claims that Apple and AT&T misrepresented material facts about the iPhone's support of MMS. Meeker claims that he went to buy an iPhone 3G in March at an AT&T store. When he asked about MMS support, he was told that it would be added in a forthcoming update to the iPhone OS in June."  Chris Foresman, Tired of waiting for AT&T to enable MMS on iPhone? Sue! (August 15, 2009) arstechnica.com. The other case, filed in the Eastern District of Louisiana by Christopher Carbine, Ryan Casey, and Lisa Maurer, has almost identical language to the lawsuit filed in Illinois by Meeker."  Id.

When Apple announced the iPhone 3GS and its 3.0 Operating System in June, at the WWDC, Apple indicated that MMS functionality was built into the operating system but would not be available in the United States until later in the year.  This raised an interesting question about these class action lawsuits.  When are representations imputed to customers?  The WWDC announcement received widespread coverage in the tech media.  I watched live blogging of the event on gizmodo.com (wait, I was working then, so nevermind).  But most consumers probably don't watch coverage of WWDC.  Let's assume that AT&T stores were promising MMS functionality was coming in June, before the WWDC announcements.  That situation is easier to analyze, since there is no conflicting information.

But what happens when that same AT&T store is silent about the absence of MMS functionality after the June WWDC event.  Does it have a duty to tell consumers about the lack of MMS?  Is MMS functionality even material?  (Parenthetically, I can e-mail pictures to an AT&T phone's e-mail address and get around this limitation, but I don't know how many people are aware of that option.)  Does a consumer need to ask about MMS to indicate that it is material?  Is the WWDC announcement and related converage sufficient to put consumers on notice about the delay in MMS functionality?  What about fine print on AT&T's website?

I'm not offering answers to these questions, but the questions are of interest to me and I thought I'd share them.

Never say never: even CJAC's counsel agrees that sometimes unfair competition class actions are a viable tool for obtaining justice

The Civil Justice Association of California ("CJAC") is demonstrating that the "justice" isn't in their name for show.  Fred Hiestand, general counsel for CJAC, wants justice, and he's willing to file a class action against the City of Sacramento and allege unfair competition in violation of Business and Professions Code section 17200 to get that justice.  Dave Gilson, Tort Reformer Wants His Day in Court (August 14, 2009) www.motherjones.com.  According to Legal Pad, CJAC's President, John Sullivan, lamented Hiestand's suit, saying, "Fred has been fighting against frivolous lawsuits for decades, and like a doctor fighting malaria, he’s become infected himself — and with the worse strain of the disease — class actions."  Cheryl Miller, Tort Reform Leader Brings Class Action 'Cause His Car Got Towed (August 14, 2009) legalpad.typepad.com.

In all seriousness, it is outrageous that a city would tow a car for parking in a no parking zone.  Those no parking zones are for special people, like lawyers, that are important and have important things to do, like eat dinner.  Those signs really mean no parking for regular people.  Why do lawyers have to put up with abuse like this?  I'm so angry I could just spit nails.  Sorry I can't blog more, but I need to run out to the street and tell that parking enforcement officer that the red stripe on the curb means "Reserved for The Complex Litigator!"  He has malaria, people - back off.


Bank of America continues to feel the pain of acquiring Countrywide

Bank of America has agreed to pay $55 million to former Countrywide Financial Corp. employees who claimed that Countrywide mismanaged their retirement funds.  E. Scott Reckard, Bank of America agrees to pay $55 million to Countrywide ex-employees (August 11, 2009) www.latimes.com.  Bank of America, through a spokesperson, said that the bank wanted to avoid the time and expense of litigation.  It turns out that you can afford to litigate for a long time for a lot less than $55 million, which makes one wonder if Countrywide really blew it.  A fairness hearing is scheduled for August 24, 2009.