This page contains a Flash digital edition of a book.
Adapting — continued from Previous Page


Thus, if plaintiffs were all injured by


the same management in the same region- al office, the court might easily distinguish Dukes and permit class certification. Securities Fraud Cases Likely Unaffected According to the New York Times,


“[s]everal experts said the [Dukes] ruling would have little effect on securities fraud cases because a misrepresentation by a corporate executive is commonly seen as injuring a company’s whole class of shareholders.” There is not yet a post- Dukes case testing this proposition. Dukes Does not Apply in State Court


Class Actions Since the Dukes decision seeks to clar-


ify the meaning of a federal court rule, there is likely no due process implication upon class-action lawsuits brought in state court. But Dukes has encouraged tobacco


C T R U S T S PT SPECIAL NEEDS


Protects MediCal & SSI Trust documents in 3 days Submit case online


We accept cases with: Any value Individuals of any age Structured settlements Court supervision Medicare Set-Asides*


“Over the last ten years I have helped hundreds of disabled individuals protect MediCal and SSI with our Special Needs Trusts”


Will Lindahl MBA, CLPF Enrollment Director www.snthelp.com will@snthelp.com


*Additional professional administration fees apply


877-695-6444 x89 24 — The Advocate Magazine JANUARY 2012


Trial lawyers need a mediator who was one.


Jack Daniels


Available exclusively through Judicate West


1.800.488.8805


companies to file for Supreme Court review of a settlement agreed to under a state class action, arguing that the Court’s interpretation of Rule 23 should have due process implications upon states. (See Philip Morris USA, Inc., et al., v. Jackson.) FRCP 23(b)(3) Cases Likely Unaffected In his blog discussing recent class


action issues, Matt Bailey asserts that while the Court’s elevated standard “likely will substantially impact certification under Rule 23(b)(1) and (b)(2) moving forward, it is unlikely to have significant impact [on] Rule 23(b)(3) certification.” Fundamentally, “the commonality element is of less impor- tance in a Rule 23(b)(3) class action . . . because the class must also meet the more stringent predominance requirement of Rule 23(b)(3).” (See In re Educ. Testing Serv. Praxis Principles of Learning & Teaching:


Grades 7-12 Litig., 2006 U.S. Dist. LEXIS 9726, *10 (E.D. La. Mar. 13, 2006). In other words, a court’s Rule 23(b)(3) analy- sis absorbs the Rule 23(a)(2) analysis. (See Hanlon v. Chrysler Corp. (9th Cir. 1998) 150 F.3d 1011, 1022 (holding that a court’s “[Rule 23(b)(3) predominance] analysis presumes that the existence of common issues of fact or law have been established pursuant to Rule 23(a)(2).”)


Conclusion Class actions serve many important


goals. They save judicial resources by allowing courts to hear the same claims together. They make claims redressing small-dollar values worthwhile. But most importantly, class actions are crucial for victims of corporate misconduct who may not have the means to bring their own individual lawsuits. Taking away this pow- erful instrument of justice is taking away a means to fundamentally change a cor- porate practice or culture for the better. The Concepcion and Dukes decisions


have undoubtedly awarded corporations a proverbial hall pass, so long as they commit their wrongdoings on an individ- ually small scale, or through localized delegation of critical payment and pro- motion decisions. Ultimately, perhaps we must wait to see how the lower courts will interpret the extent of these recent hold- ings. Yet even with its changed circum- stances, the class-action lawsuit remains one of the most powerful tools con- sumers and employees have to band together and fight corporate misconduct.


Brian S. Kabateck is a consumer rights


and personal-injury attorney, and a founding partner at Kabateck Brown Kellner, LLP in Los Angeles. He represents plaintiffs in mass torts litigation, personal injury, and wrongful death cases, as well as class actions, insurance bad faith, insurance litigation, and commercial contingency litigation.


Acknowledgement The author thanks Jacob H. Seropian,


Loyola Law School Juris Doctor Candidate, class of 2012, for his outstanding work and efforts, without which this article would not have been possible.


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68  |  Page 69  |  Page 70  |  Page 71  |  Page 72  |  Page 73  |  Page 74  |  Page 75  |  Page 76  |  Page 77  |  Page 78  |  Page 79  |  Page 80  |  Page 81  |  Page 82  |  Page 83  |  Page 84  |  Page 85  |  Page 86  |  Page 87  |  Page 88  |  Page 89  |  Page 90  |  Page 91  |  Page 92  |  Page 93  |  Page 94  |  Page 95  |  Page 96