Dougls J. McNamara co-authored, “Reexamining the Seventh Amendment Argument Against Issue Certification,” 34 Pace Law Review, 1041 (2014), along with Blake Boghosian, George Washington University Law School, and Leila Aminpour, Consumer Financial Protection Bureau.
Issue certification is a controversial means of handling aggregate claims in Federal Courts. Federal Rule of Civil Procedure (“FRCP”) 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Issue certification has returned to the radar screen of academics, class action counsel,
and defendants. The Supreme Court’s decision regarding the need for viable damage distribution models in Comcast v. Behrend may spur class counsel in complex cases to bifurcate liability and damages. The successes of tobacco-injury plaintiffs in Florida’s Engle v. Liggett Group cases show that personal injury actions can make use of issue class actions.
While plaintiffs’ securities lawyers are often vilified by the U.S. Chamber of Commerce, elected officials of the Republican party, and other persons and entities associated with the political right, the use of private attorneys to help enforce the nation’s securities laws is actually in synch with a number of the core beliefs typically advocated by those groups.
This use of private attorneys to protect the public constitutes a classic outsourcing of a traditional government function to the private sector, substituting an entrepreneurial group of businesses (private law firms), both motivated and restricted by their need to generate enough revenue to cover their costs, for government employees acting as regulatory enforcers. It also gives investors—including Taft-Hartley pension plans—that most American of privileges: the ability to defend themselves and their property without relying on the government to initiate action.
Bloomberg BNA: Securities Regulation & Law Report
Michael Eisenkraft
4/7/2014
Michael Eisenkraft, the author of this piece, is a partner at Cohen Milstein Sellers & Toll PLLC. Based in Cohen Milstein’s New York office, he is a member of its Securities Fraud/Investor Protection and Commercial Contingency practice groups.
It is an oversimplification to say that trustees have a difficult job. If you do the job right, it is inevitable that some people are going to be upset with you. If you do the job wrong, you could be in breach of your fiduciary duty. At a recent conference, a long-time trustee commented that “it isn’t fun anymore.” I don’t know if it ever was “fun” but I do know what he was saying. These are incredibly challenging times and that makes the already difficult job of a trustee even harder.
Read Ethics and Fiduciary Issues for Pension Trustees in a Changing Environment.
Guardrails are installed along America’s roadways for the protection of motorists. Guardrails, if properly designed, keep vehicles from straying off the roadway into dangerous places and, when impacted at the end points, should absorb or dissipate energy from the crash and give way, rather than remaining rigid and potentially intruding into the accident vehicle. But, unfortunately, there are tens, if not hundreds, of thousands of guardrails that will not achieve this purpose either due to poor design or improper installation.
Senior financial abuse is a problem that does, or will, affect all of us. We may be the victim, the victim could be a relative or a friend, or we could simply just feel the effect, through higher taxes or fees at financial institutions, of the billions of dollars lost to senior financial abuse every year. Dodd–Frank recognizes that problem, but the solutions it offers, while useful, are too small to stop or even retard the growth of a problem of this magnitude. We need to do more; we need to transform the relationship between financial service providers and their customers from wary antagonism to trusted, well-trained protectors and guardians. The three reforms suggested above should contribute significantly to bring that about—and they also enlist the medical profession, a set of trained eyes, to help see signs of trouble. It does not matter from where these reforms emanate. They could come from the federal governments, the states, or even perhaps the codes of conduct of professional organizations, but they should be enacted.
University of Cincinnati Law Review: Vol. 81: Iss. 2, Article 5.
One need only look at the headlines on any given day to find a story involving ethical misconduct. The settings of these stories range from corporate board rooms to athletic playing fields to government agencies on the federal, state, and local level—and pension funds are certainly not immune.
Read Ethics and Fiduciary Issues for Public Pension Plans: Lessons Learned.
As consumer class action attorneys are painfully aware, in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), the United States Supreme Court determined that the federal government views arbitration with such favor that state courts are sometimes preempted from striking provisions of arbitration clauses that are unconscionable under state law. Since Concepcion, courts are understandably reluctant to deny motions to compel arbitration when parties to a dispute have entered into an agreement to arbitrate. But a California court recently decided in a couple of cases that arbitration agreements can be invoked by manufacturers of defective products that are not even signatories to the arbitration agreement. These cases indicate a trending defense strategy by manufacturers that plaintiffs’ attorneys should consider when filing a products liability claim.
Read Avoiding Mandatory Arbitration in Products Liability Cases
A relatively unique aspect of products liability cases is that the event giving rise to a claim for product defects often also destroys the central evidence in the case—the defective product. Even if the product is not destroyed, the event may so damage the product that it is discarded as garbage by someone who fails to recognize its significance as evidence in a potential lawsuit. While turning down a potential products case may often be the first inclination of an attorney evaluating a claim based on a destroyed or discarded product, the recent decision in Murray v. Traxxas Corp., 78 So. 3d 691 (Fla. 2d DCA 2012), warrants giving such cases a second hard-look.