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Class Action

Courthouse Steps: California Public Employees’ Retirement System v. ANZ Securities - Podcast

Litigation Practice Group Podcast
Mark Chenoweth June 28, 2017

On April 17, 2017, the Supreme Court heard oral argument in California Public Employees’ Retirement System v. ANZ Securities. Between July 2007 and January 2008, Lehman Brothers raised over $31 billion through debt offerings. California Public Employees’ Retirement System (CalPERS), the largest pension fund in the country, purchased millions of dollars of these securities. CalPERS sued Lehman Brothers in 2011, and their case was merged with another retirement fund’s putative class action suit against Lehman Brothers and transferred to a New York district court. Later that year, the other parties settled, but CalPERS decided to pursue its claims individually. The district court dismissed for untimely filing, and the U.S. Court of Appeals for the Second Circuit affirmed.

The question before the Supreme Court was whether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members. On Monday, the Supreme Court upheld the Court of Appeals dismissal of the lawsuit. Mark Chenoweth of the Washington Legal Foundation joined us to discuss the decision and its significance.

Featuring:

  • Mark Chenoweth, General Counsel, Washington Legal Foundation

Microsoft v. Baker Decided - Podcast

Litigation Practice Group Podcast
Theodore H. Frank June 19, 2017

Microsoft v. Baker involved a class action lawsuit against the Microsoft Company by plaintiffs who alleged that during games on their Xbox video game console, the game disc would come loose and scratch the internal components of the device, permanently damaging the Xbox. Since only .4% of Xbox consoles experienced this issue, the district court determined that "a class action suit could not be certified and individuals in the suit would have to come forward on their own." The named plaintiffs voluntarily dismissed their claims with prejudice. The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit where the court overturned the lower court's decision and held that the district court misapplied the law and abused its discretion in removing the class action allegations.

On Monday, June 12 the Supreme Court unanimously reversed the ruling of the Ninth Circuit and remanded the decision. Ted Frank of the Competitive Enterprise Institute joined us to discuss the holding and its significance.

Featuring:

  • Theodore H. Frank, Senior Attorney, Director, Center for Class Action Fairness, Competitive Enterprise Institute

Update: In re Fosamax (Alendronate Sodium) Products Liability Litigation - Podcast

Litigation Practice Group Podcast
Jay Lefkowitz, Douglas G. Smith May 25, 2017

In a recent decision, the Third Circuit held that hundreds of state-law claims alleging that bone fractures were caused by an osteoporosis medication were not preempted by federal law. While defendants argued, and the district court agreed, that the record showed that the FDA would not have approved stronger warnings in the product labeling, the Third Circuit concluded that the record raised factual issues that should go to a jury. In doing so, the court rejected defendants’ contention that preemption was a purely legal issue for the court to decide and suggested that the evidence must show that there was a “high probability” that the FDA would have rejected stronger labeling in order to invoke preemption. Was the appellate court correct? How does its decision fit with other recent preemption cases? Jay Lefkowitz and Doug Smith joined us to discuss these and other issues relating to the court’s decision.

Featuring:

  • Jay P. Lefkowitz, P.C., Partner, Kirkland & Ellis LLP
  • Douglas G. Smith, P.C., Partner, Kirkland & Ellis LLP

Fairness in Class Litigation Act - Podcast

Litigation Practice Group Podcast
Howard M. Erichson, Andrew Grossman April 03, 2017

On Saturday, March 11 the House passed the Fairness in Class Litigation Act by a vote of 220-201. The stated purpose of the Act is to “(1) assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs; (2) diminish abuses in class action and mass tort litigation; and (3)  restore the intent of the framers…by ensuring Federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles” (H.R.985, 2017).

The Bill amends the federal judicial code’s standards for the certification of class action. For example, the bill requires that proposed class members to show that they suffered the same type and degree of injury. The bill also limits the amount and timing of attorney’s fees in a class action. Attorney’s cannot be paid more than the class members, and they must be paid after the class members receive payment.

Andrew Grossman Partner at Baker & Hostetler LLP and Adjunct Scholar at the Cato Institute will join Professor Howard M. Erichson of Fordham to discuss the legislation as deliberations begin in the Senate Judiciary Committee.

Featuring:

  • Professor Howard M. Erichson, Professor of Law, Fordham University School of Law
  • Andrew Grossman, Partner, Baker & Hostetler LLP, Adjunct Scholar, the Cato Institute