Unused and Probably Unusable

Blogging goes through periods of varying frequencies, as with most aspects of life.

Sometimes, I post with a frequency which indicates a vast surplus of available time, available mental energy, or both.

Occasionally, as this month, my own self-imposed goals (weekly postings on Friday, at a minimum) aren't met because other rhythms have disrupted the schedule.

My vacation from Heinlein Friday will continue for another week, but its long-term status as a permanent weekly commitment is in doubt. I have more to write, but the very decision to start so huge a project as the Law of War post, which produced dozens and dozens of paragraphs with inadequate planning on how to tame them, has placed an unfortunate obstacle in the path of continued easy posts.

I may want to withdraw it, and prepare a more modest HF post. It wouldn't be the first time I've done this: my last major blawgging project was to be a Scalia Mega-Post, in which I dealt with each and every things about Scalia's jurisprudence (and personal style, and irritating statements) which annoyed or frustrated or infuriated or troubled me. As it turns out, that kind of project involves more than just brainstorming, writing, and collecting links.

To take on a really massive writing project, there needs to be some thoughtful editing, at the planning stage. What gets in, and what is excluded? What's the right order? How does one section relate to another?

I've seldom constructed such open-ended writing projects, and when I have, failure to adequately edit my own structure has been at least as big a problem as inability to find words.

I'm also better at starting projects than finishing them, but of course it's easy to finish a task when you can see its goal clearly and therefore understand the nature of the work that will accomplish it.

Writing a brief is easy by comparison. It's got to have the requisite pieces, to comply with the Federal Rules or local practice or the judge's orders. There's only one way to organize it - the right way, with first things first, all the necessary prefatory and preparatory announcements (introduction, statement of jurisdiction, statutes involved, etc.). A motion for class certification has a form that's virtually pre-ordained, just because it has to comply with Rule 23, or its state law equivalent - see the discussion in this long-ago post. August 5, 2005? It's been a while.

===================

What else is on my mind?

I try not to journal too much, this being a Blawg and all, but it's so pleasant to write down observations and get them out of the mental buffer. Nobody has to spend time reading about what my cat did today (she's nonexistent, so pretty much the same things she does every day, or rather doesn't do, or perhaps even doesn't not do). But some observations are worthwhilier than others.

Philadelphia's weather has turned distinctly dismal. Temps in the 80s or above (with miserably high humidity) have been replaced by highs in the low 70s, with a distinct overcast. Summer's over. The season has changed, and we can look forward to months of complaining and wishing it was unpleasantly hot again.

Politics in Philly is about to get increasingly unavoidable. I haven't heard from the Lynn Swann candidacy lately, but I assume he's still running against incumbent Governor Ed Rendell (who is married to Third Circuit Judge Midge - er, Marjorie O. Rendell). I haven't seen any lying commercials from Santorum lately - although I hear there's an accurate one going around about how often his Democratic opponent, Bob Casey, Jr., has sought different offices. Well played, Santorum campaign. Keep trying to distract us from the issues of character, philosophy, politics, trust, and substantive issues.

Philly car share, I can now report, is a lovely thing. It may not be competitive with Zip Cars or the other nationwide car-sharing programs. PCS is a nonprofit which (presumably for good and valid and insurance-related reasons) can't let you take one of their cars into D.C. or New York or Baltimore or otherwise outside the Area. But, I think it does finally eliminate the need of many students, many professionals, and most city-dwellers to actually buy, own, maintain, gas, insure, and find permanent parking for their vehicles. Google them if you're in Philly and haven't already considered joining. Many have - and many have sold their cars and finally rid themselves of that albatross, car ownership.

That reminds me, I can buy a new transpass today - why not be able to ride any bus OR check out a car with an hour's notice? It's affordable, as owning and insuring a car in the city isn't.

Life beckons, much as it intruded last week. Off I go, to face another long, dreary, wearying Friday, followed immediately by a three day weekend and then a four day week. Wait, that's not too cumbersome after all.

Posting will resume on or after the weekend.

Class action tolling is a doctrine applicable when a complaint is filed by an individual plaintiff alleging class action status (that is, the complaint should apply to me, and to others similarly situated, in a manner I define thusly), but the court either denies certification of the class or grants it but later decertifies. At that point, individual absent class members might be out of luck as far as filing their own individual complaints, because deciding class certification often takes a court a while.

Worse, if they knew about this problem, the rational response would be for them to flood the court with individual lawsuits, despite the pendency of a proposed class action to which they would belong if it were certified.

It looks messy. Wasteful. Better to give them a shot to wait it out, and file only if it turns out to be necessary.

Thus, class action tolling.

The Effect of Tolling

A medical malpractice article misleadingly suggests (The Class Stops the Clock) that the effect of tolling is to "suspend" the running of the clock. Perhaps it is to be forgiven (and it's a really good article, most ways, detailing the origin of the doctrine in the 1973 Supreme Court case American Pipe v. Utah; see especially its nice discussion of the trap for the unwary in the majority rule that an absent class member who files her complaint before the class certification is decided does not benefit from tolling).

But the rule is not at all that time stops for purpose of the statute of limitations when the complaint is filed, and starts running again when certification is denied or the class is decertified.

No, Chardon v Fumero Soto (1983) establishes that a court must consult the substantive law's tolling provision, if there is one, and that under certain circumstances an entirely new statutory period may run. It depends if, as in American Pipe or Crown Cork & Seal v. Parker (1983) the statute indicates "suspend" (see section 5 of the Clayton Act for antitrust, for example) or if the statute, like the Puerto Rican savings provision in Chardon grants a new statutory period for the re-filing.

(A savings provision will allow a plaintiff, kicked out of court for a non-merits based reason [like jurisdiction, or the class action which included them failing on the basis of numerosity, typicality, or adequacy of representation] to refile within a certain length of time, despite the running of the statute of limitations between the time of filing and the dismissal of the claim.)

That is, one could be gravely incorrect if one assumed that the only possible result of application of tolling to an absent class member's individual claim would be that they would have the time they had remaining left in the statute of limitations when the complaint is filed "tacked on" to the moment of denial or decert.

Other reading

Evan previously blogged about Class Action Tolling at the Illinois Trial Practice Weblog.

Prof. Rhonda Wasserman of University of Pittsburgh School of Law has written about tolling in successive class actions, or what I believe is called the "anti-stacking" rule.

Norm (not McDonald; I like this one a lot better) Pattis complains in Class Action Reform about fee awards, which in his view are run amok.

Norm complains about unfettered greed, notes that the freedom of lawyers to contract is not supposed to be unlimited (they must be reasonable, goes the touchstone), and otherwise knocks class actioneers. Some of us, anyway.

"The savvy lawyer seeks a case involving small harm to a large number of people." Actually, a really savvy lawyer seeks a case with a LARGE harm to a large number of people, ideally with treble damages as well as attorney's fees provided by statute. If by savvy one means greedy, anyway. Assuming there's no competition for that same juicy prize.

In fact, some class action plaintiffs' lawyers probably are greedy. Unlike, say, some criminal defense or civil defense lawyers, I'm sure.

Norm complains about an 800k fee result in a $2.5 million class action involving prisoner strip searches. That works out to a roughly 33% fee, within the bounds of typical contingent fees in individual cases. Now, I would be willing to stipulate that on a $4.5 billion recovery, the correct measure of fees might well be lower than a third - that the pool (usually it's not only not just one lawyer, nor even one firm, but many firms) share from a slightly smaller portion of that gigantic whole. Say, a quarter, or even 20% - it depends.

But the fact that Norm has kept his fees low in 1988 actions doesn't prove that all contingent fees are outrageous. Plaintiffs lawyers working on contingency are taking a risk - the horrible, horrible risk that there won't be a recovery, despite the lawyer time, energy, work, expert fees, and blood, sweat, and tears invested. It's not just disappointing - the way a defense firm feels disappointed when its client, or often its client's insurance carrier winds up having to pay as part of a settlement or for a judgent - it means that the plaintiffs lawyers may lose. Lose big. It's a gamble, it's a risk, it means that you can't take frivolous cases, can't waste time on claims where there's no chance of a sufficient recovery to make it worth it.

There's a reason why class actions are allowed. If they weren't, or if a rule like Norm's proposed rule maxing out the lawyer's fee at "some reasonable muliple of the harm caused to a representative plaintiff," which would make it uneconomical to bring a claim on behalf of 10,000 people who all lost $500, then the Defendants of the world would have an incentive. A bad incentive.

Bad actors would be incentivized to calculate the likely recovery yield (what percentage of injured parties actually sue, what percentage of cases result in some recovery), the likely damage from other related factors (harm to reputation or stock price from being a bad actor), and then deliberately harm thousands of people at a low level. It would be an economically efficient transaction - and thus, practically required. Why, it might justify a shareholder lawsuit if you failed to screw the victims.

To sum up: I'm outraged, but Norm may be right about some outlying fees, but that doesn't mean his rule is sane, but some limitations are a good idea, but we have some in the form of judicial review and approval before accepting attorney's fees, but that doesn't stop Reformers (read: pro-defense lobbyists, all too often) from urging more "Improvement" of the law.

Good morning, sports fans. I've been paralyzed and unable to post- too many different ideas at once. Well, sometimes it's hard to concentrate on creating one separate lengthy post on a single issue. Here then are a number of pending post ideas I've had, separated and subdivided for your convenience.

So, here we go: Class actions, professionalism, Ken Lay, Sarbox, Blawg Review, and last but not least, Nigerian Scams for law profs.

Item number the Primus: Class actions.

George of George's Employment Blawg posted an interesting rant a while back that Class Actions Encourage Greed (Feb. 10, 2005)...


Item number Duo: Professionalism.

Following on with the topic of class actions, we come to the story of a Particularly Bad Day before an Appellate Panel. Sometimes oral arguments go well. Some days, you're the pigeon. Some days, you're the statute. [sic]

The news sources were full of coverage the other day about the Wal-Mart oral argument before the Ninth Circuit on their appeal of the decision by the judge to permit the class to be certified. (L.A. Times, Aug. 9, free registration may be required)

The most exciting part of the argument (I gather) was ...

Item number Treo: Ken Lay and Sarbox

Two important things I became aware of after the round of scandals and stock devaluations and company bankruptcies and manager indictments resulting from the late-90s-early-2000s tech stock bubble:

Kenneth Lay. George W. Bush's friend and campaign donor "Kenny-Boy" Lay was the toast of Houston, until his company (Enron) became a synonym for "fraud" - now Kenny's almost toast himself, although the civil suits are still pending as far as I know and he has thus far escaped indictment on criminal charges. Although Enron itself went through a massive (but not the largest; others have followed in its ignominious footsteps) bankruptcy in late 2001, it was its accounting firm Arthur Andersen which was criminally indicted, and eventually the resulting conviction was overturned by the U.S. Supreme Court based on the jury instructions, which I discussed in passing here. Ken Lay is popularly thought to be a sort of Pinochet, an Evil Man who has Escaped Prosecution because he has Powerful Friends, which may be unjust as to his character, as I'll discuss below.

Sarbanes-Oxley, known as Sarbox, or even SOx. The S-O Act was a "response," in the sense that the Spanish-American War was a "response" to the explosion of the Maine: it followed chronologically after, and was justified on the specious theory that one had to do with the other. In fact, Sarbanes-Oxley tightens up many areas of corporate governance and requires strict reporting and verification by CFOs and CEOs - but not necessarily in ways that would have prevented the Enron and Worldcom fiascoes.

Treo the first: Ken Lay


Treo the second: Sarbox.

Professor Bainbridge (who accused various folks of "shooting from the hip" in their quick responses to the Disney case, an accusation which Larry Ribstein (see Treo the First, above) denies here) weighs in on the Sarbox "debate" (which seems to consist mainly of SOx-bashing by professional managers and by interested law or economics professors).

In Bartlett on Sox, Prof. B points out an interesting piece by Bruce Bartlett at Real Clear Politics, which accuses SOx of "holding back the market"...


Item number the Quattro: Blawg Review.



Item number the last: Nigerian Scams for Prawfs.

A Prawf is of course a law prof, by analogy with blawg = law blog. See prawfsblawg for more on that. :)

A hilarious post on Congomerate (theconglomerate.org) involves an enterprising person,

As always, I can promise certain things about the future:

• the Scalia megapost is still in the works! Projected completion date: when it's done.



• I've got other posts in the works, on Oaths [update: it's now available] and on Gay Marriage, although the first is more fleshed-out than the second.



• I will be posting in the future about Class Actions (I haven't squeezed that stone dry yet), about Linguistics (much more coming here; in fact, one post on the ugly word Niggardly might be up soon), and about Other Things. As always, remind me if I haven't come through with a promised post, and I'll get back on it.



• Finally, I will shortly lay out the actual purpose of this blawg, what my project is, and why you should care. Right now this thing is fairly undirected, and you may not be able to see what I'm getting at. There is rhyme to the unreason.

As always, my former blawg can be found at Unused & Probably Unusable (mark one) and its index is also available.

Another great Class action article (HT: Howard again) (aside: HT is the abbreviation, commonly used by bloggers, to say Hat Tip, meaning a Tip of the Hat or casual salute to, another blogger or journalist for pointing out the relevant source.)

Wal-Mart's Bid to Void Suit Calls It Too Big (L.A. Times; free subscription may be required) mentions that the certification decision is the "crucial moment" for a class action, particularly for mass discrimination cases like Wal-Mart. UCLA Law Prof and labor law expert Katherine Stone is quoted:

"If the class is certified, the defendants will usually settle," she said. But if the plaintiffs' petition for a class action is rejected, it becomes too expensive for plaintiffs' lawyers to pursue their cases individually and they will "usually fold," Stone said.

Part I: In which I explain the significance of certification

Why is Stone's comment accurate? It's because the certification of a class gives plaintiff's lawyers a much bigger stick to wield against defendants. Insurance companies who want to continue fighting until certification is finally decided have a good point: a pre-certified class is only a potential threat. A certified class, on the other hand, has made it past a judicial hurdle - one required by statute. It has shown that it meets certain requirements (see Federal Rule of Civil Procedure 23, or your local equivalent), in the eyes of the judge:
(click below to continue)



Part II: A discursive and general discussion of abstractions

[This part starts in but diverges from the class action context, and discusses something more in the nature of Conflicts of Law and the nature of Interesting Questions. It could be its own post, but it comes out of the prior discussion and so I'll leave it here, in its own section.]



As I always say, I'll have more about class actions in future posts.

[update: Thanks again to Patent Baristas for including this post in Blawg Review #19. I'm not entirely clear on what "Cooked" means, but it's apparently good. Yes, this is a linguistically inclined blawg, and I am glad that this post was interesting to someone.

I have some more thoughts on Wal-mart, and why its arguments may in fact have been meritorious (not that I necessarily want to see them win or lose, I'm just talking about rightness and wrongness). I'll get to them at some point. Short summary: if a class action is certified that necessarily involves a choice of law analysis between an excess of 50 jurisdictions; in which forum and jurisdiction are not necessarily correct; in which multiple (or even incompatible?) legal theories are being asserted; and against which no defense is possible, certification in a bet-the-company case does begin to look like a raw deal. However, unlike the classic cases (see In re Agent Orange Product Liability Litigation before Judge Weinstein) what's being asserted against Wal-mart is: >a factually diverse set of claims regarding a
uniformly applicable body of law. In an air crash or an agent orange exposure case, it's not just about proving you were injured; there's also the question, under what tort law (including law of privileges) does the case proceed? In a Title VII claim, especially with allegations of nationwide business practices (uniformly, from the top-down, allowing or failing to detect and halt sex-based discrimination), there's one law: Federal statutory law. But I'll have more to say later, as and if the case proceeds.]

Proving once again how useful and relevant the site can be, Overlawyered provides two things of note.

The simpler post is the August 3rd posting Some don'ts for lawyers - or what I like to refer to as "Stupid Lawyer Tricks" - things to do if you'd like to be disbarred. Lying to your client about certain kinds of things; perpetrating frauds on the court. Stupid things. These are what we call cautionary tales.

The more interesting (to me) post is dated August 2nd and is titled Class actions: the "Reverse Auction". It refers to Justin Scheck's article on law.com "Reverse Auctions Lack Class," (Jul. 20), so in a way, yes, I'm bringing you very old news.

The danger posed by the reverse auction (to select class counsel) to the integrity of the class action system is that by picking and choosing among plaintiffs, defendants can select the weakest claims against them, and use that weaker opposition to achieve a cheaper settlement. This implicates the plaintiff's duty to the prospective class to achieve the maximum recovery possible.

(click below for more)