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Lawsuit Funding Case Study



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From to , group litigation gradually switched from being the norm in England to the exception. By , the Parliament of England had enacted several statutes on a case-by-case basis to deal with issues regularly faced by certain types of organizations, like joint-stock companies, and with the impetus for most types of group litigation removed, it went into a steep decline in English jurisprudence from which it never recovered. Randall The oldest predecessor to the class-action rule in the United States was in the Federal Equity Rules , specifically Equity Rule 48, promulgated in Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it.

But in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties. This allowed for representative suits in situations where there were too many individual parties which now forms the first requirement for class-action litigation — numerosity. A major revision of the FRCP in radically transformed Rule 23, made the opt-out class action the standard option, and gave birth to the modern class action.

Entire treatises have been written since to summarize the huge mass of law that sprang up from the revision of Rule The Advisory Committee that drafted the new Rule 23 in the mids was influenced by two major developments. First was the suggestion of Harry Kalven, Jr. For example, a environmental law treatise reprinted the entire text of Rule 23 and mentioned "class actions" 14 times in its index. Businesses targeted by class actions for inflicting massive aggregate harm have sought ways to avoid class actions altogether. In the s, the U. Supreme Court issued a number of decisions which strengthened the "federal policy favoring arbitration ".

In , the U. Concepcion that the Federal Arbitration Act of preempts state laws that prohibit contracts from disallowing class-action lawsuits, which will make it more difficult for consumers to file class-action lawsuits. The dissent pointed to a saving clause in the federal act which allowed states to determine how a contract or its clauses may be revoked. In two major 21st-century cases, the Supreme Court ruled 5—4 against certification of class actions due to differences in each individual members' circumstances: first in Wal-Mart v.

Dukes and later in Comcast Corp. Behrend Companies may insert the phrase "may elect to resolve any claim by individual arbitration" into their consumer and employment contracts to use arbitration and prevent class-action lawsuits. Supreme Court, in Epic Systems Corp. Lewis , sanctioned the use of so-called "class action waivers". Citing its deference to freedom to contract principles, the Epic Systems opinion opened the door dramatically to the use of these waivers as a condition of employment, consumer purchases and the like. Many of those supporters had long-since argued that class action procedures were generally inconsistent with due process mandates and unnecessarily promoted litigation of otherwise small claims—thus heralding the ruling's anti-litigation effect.

Superior Court of California, S. This opinion may arguably render nationwide mass action and class action impossible in any single state beside the defendant's home state. In , the 11th Circuit Court of Appeals found incentive awards are impermissible. Incentive awards are a relatively modest payment made to class representatives as part of a class settlement.

The ruling was a response to an objector who claimed Rule 23 required that the fee petition be filed before the time frame for class member objections to be filed; and payments to the class representative violates doctrine from two U. Supreme Court cases from the s. As of , there was no publicly maintained list of nonsecurities class-action settlements, [11] although a securities class-action database exists in the Stanford Law School Securities Class Action Clearinghouse and several for-profit companies maintain lists of the securities settlements.

One study of federal settlements required the researcher to manually search databases of lawsuits for the relevant records, although state class actions were not included due to the difficulty in gathering the information. Proponents of class actions state that they offer a number of advantages [13] because they aggregate many individualized claims into one representational lawsuit. First, aggregation can increase the efficiency of the legal process, and lower the costs of litigation.

Jenkins v. Raymark Indus. Second, a class action may overcome "the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights". Amchem Prods. Windsor , U. Van Ru Credit Corp. In other words, a class action ensures that a defendant who engages in widespread harm — but does so minimally against each individual plaintiff — must compensate those individuals for their injuries. For example, thousands of shareholders of a public company may have losses too small to justify separate lawsuits, but a class action can be brought efficiently on behalf of all shareholders. Perhaps even more important than compensation is that class treatment of claims may be the only way to impose the costs of wrongdoing on the wrongdoer, thus deterring future wrongdoing.

Third, class-action cases may be brought to purposely change behavior of a class of which the defendant is a member. Landeros v. Flood was a landmark case decided by the California Supreme Court that aimed at purposefully changing the behavior of doctors, encouraging them to report suspected child abuse. Otherwise, they would face the threat of civil action for damages in tort proximately flowing from the failure to report the suspected injuries.

Previously, many physicians had remained reluctant to report cases of apparent child abuse, despite existing law that required it. Fourth, in "limited fund" cases, a class action ensures that all plaintiffs receive relief and that early-filing plaintiffs do not raid the fund i. See Ortiz v. Fibreboard Corp. A class action in such a situation centralizes all claims into one venue where a court can equitably divide the assets amongst all the plaintiffs if they win the case. Finally, a class action avoids the situation where different court rulings could create "incompatible standards" of conduct for the defendant to follow. See Fed. For example, a court might certify a case for class treatment where a number of individual bond-holders sue to determine whether they may convert their bonds to common stock.

Refusing to litigate the case in one trial could result in different outcomes and inconsistent standards of conduct for the defendant corporation. Thus, courts will generally allow a class action in such a situation. See, e. Boeing Co. Whether a class action is superior to individual litigation depends on the case and is determined by the judge's ruling on a motion for class certification. The Advisory Committee Note to Rule 23, for example, states that mass torts are ordinarily "not appropriate" for class treatment. Class treatment may not improve the efficiency of a mass tort because the claims frequently involve individualized issues of law and fact that will have to be re-tried on an individual basis.

See Castano v. Tobacco Co. Mass torts also involve high individual damage awards; thus, the absence of class treatment will not impede the ability of individual claimants to seek justice. Other cases, however, may be more conducive to class treatment. Class-action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm. There are several criticisms of class actions. Class members often receive little or no benefit from class actions.

For example, in the United States, class lawsuits sometimes bind all class members with a low settlement. These " coupon settlements " which usually allow the plaintiffs to receive a small benefit such as a small check or a coupon for future services or products with the defendant company are a way for a defendant to forestall major liability by precluding many people from litigating their claims separately, to recover reasonable compensation for the damages. However, existing law requires judicial approval of all class-action settlements, and in most cases class members are given a chance to opt out of class settlement, though class members, despite opt-out notices, may be unaware of their right to opt out because they did not receive the notice, did not read it, or did not understand it.

The Class Action Fairness Act of addresses these concerns. Coupon settlements may be scrutinized by an independent expert before judicial approval in order to ensure that the settlement will be of value to the class members 28 U. Class action cases present significant ethical challenges. Defendants can hold reverse auctions and any of several parties can engage in collusive settlement discussions. Subclasses may have interests that diverge greatly from the class but may be treated the same. Proposed settlements could offer some groups such as former customers much greater benefits than others.

In one paper presented at an ABA conference on class actions in , authors commented that "competing cases can also provide opportunities for collusive settlement discussions and reverse auctions by defendants anxious to resolve their new exposure at the most economic cost". Although normally plaintiffs are the class, defendant class actions are also possible. For example, in , the Roman Catholic Archdiocese of Portland in Oregon was sued as part of the Catholic priest sex-abuse scandal. All parishioners of the Archdiocese's churches were cited as a defendant class.

This was done to include their assets local churches in any settlement. In a class action, the plaintiff seeks court approval to litigate on behalf of a group of similarly situated persons. Not every plaintiff looks for, or could obtain, such approval. As a procedural alternative, plaintiff's counsel may attempt to sign up every similarly situated person that counsel can find as a client. Plaintiff's counsel can then join the claims of all of these persons in one complaint, a so-called "mass action", hoping to have the same efficiencies and economic leverage as if a class had been certified. Because mass actions operate outside the detailed procedures laid out for class actions, they can pose special difficulties for both plaintiffs, defendants, and the court.

For example, settlement of class actions follows a predictable path of negotiation with class counsel and representatives, court scrutiny, and notice. There may not be a way to uniformly settle all of the many claims brought via a mass action. Some states permit plaintiff's counsel to settle for all the mass action plaintiffs according to a majority vote, for example. Other states, such as New Jersey, require each plaintiff to approve the settlement of that plaintiff's own individual claims.

Class actions were recognized in "Halabi" leading case Supreme Court , Class actions became part of the Australian legal landscape only when the Federal Parliament amended the Federal Court of Australia Act "the FCAA" in to introduce the "representative proceedings", the equivalent of the American "class actions". Likewise, class actions appeared slowly in the New Zealand legal system. However, a group can bring litigation through the action of a representative under the High Court Rules which provide that one or a multitude of persons may sue on behalf of, or for the benefit of, all persons "with the same interest in the subject matter of a proceeding".

The presence and expansion of litigation funders have been playing a significant role in the emergence of class actions in New Zealand. For example, the "Fair Play on Fees" proceedings in relation to penalty fees charged by banks was funded by Litigation Lending Services LLS , a company specializing in the funding and management of litigation in Australia and New Zealand. It was the biggest class-action suit in New Zealand history. In these cases the individual consumers assigned their claims to one entity, who has then brought an ordinary two party lawsuit over the assigned claims. The monetary benefits were redistributed among the class. This technique, labelled as "class action Austrian style", allows for a significant reduction of overall costs.

The Austrian Supreme Court , in a judgment, confirmed the legal admissibility of these lawsuits under the condition that all claims are essentially based on the same grounds. The Austrian Parliament unanimously requested the Austrian Federal Minister for Justice to examine the possibility of new legislation providing for a cost-effective and appropriate way to deal with mass claims. With the aid of a group of experts from many fields, the Justice Ministry began drafting the new law in September With the individual positions varying greatly, a political consensus could not be reached. Provincial laws in Canada allow class actions. All provinces permit plaintiff classes, and some permit defendant classes. Quebec was the first province to enact class proceedings legislation, in Ontario was next, with the Class Proceedings Act, As of , 9 of 10 provinces had enacted comprehensive class actions legislation.

Dutton , [] 2 S. Legislation in Saskatchewan , Manitoba , Ontario , and Nova Scotia expressly or by judicial opinion has been read to allow for what are informally known as national "opt-out" class actions, whereby residents of other provinces may be included in the class definition and potentially be bound by the court's judgment on common issues unless they opt out in a prescribed manner and time. Court rulings have determined that this permits a court in one province to include residents of other provinces in the class action on an "opt-out" basis.

Judicial opinions have indicated that provincial legislative national opt-out powers should not be exercised to interfere with the ability of another province to certify a parallel class action for residents of other provinces. The first court to certify will generally exclude residents of provinces whose courts have certified a parallel class action. However, in the Vioxx litigation, two provincial courts certified overlapping class actions whereby Canadian residents were class members in two class actions in two provinces.

The largest class action suit in Canada was settled in after Nora Bernard initiated efforts that led to an estimated 79, survivors of Canada's residential school system suing the Canadian government. Chile approved class actions in This means that the class action is designed to declare the defendant generally liable with erga omnes effects if and only if the defendant is found liable, and the declaratory judgment can be used then to pursue damages in the same procedure or in individual ones in different jurisdictions. If the latter is the case, the liability cannot be discussed, but only the damages. This is the case when defendants can identify and compensate consumers directly, i. In such cases the judge can skip the compensatory stage and order redress directly.

Salient cases have been Condecus v. La Polar. Under French law, an association can represent the collective interests of consumers; however, each claimant must be individually named in the lawsuit. On January 4, , President Chirac urged changes that would provide greater consumer protection. A draft bill was proposed in April , but did not pass. Following the change of majority in France in , the new government proposed introducing class actions into French law. The project of "loi Hamon" of May aimed to limit the class action to consumer and competition disputes. The law was passed on March 1, Class actions are generally not permitted in Germany, as German law does not recognize the concept of a targeted class being affected by certain actions.

This requires each plaintiff to individually prove that they were affected by an action, and present their individual damages, and prove the causality between both parties. Joint litigation Streitgenossenschaft is a legal act that may permit plaintiffs that are in the same legal community with respect to the dispute, or are entitled by the same factual or legal reason. These are not typically regarded as class action suits, as each individual plaintiff is entitled to compensation for their individual, incurred damages and not as a result of being a member of a class.

Combination of court cases Prozessverbindung is another method which permits a judge to combine multiple separate court cases into a single trial with a single verdict. A genuine extension of the legal effect of a court decision beyond the parties involved in the proceedings is offered under corporate law. This procedure applies to the review of stock payoffs under Stock Corporation Act Aktiengesetz. Pursuant to Sec. The Capital Investor Model Case Act Kapitalanleger-Musterverfahrensgesetz is an attempt to enable model cases to be brought by a large number of potentially affected parties in the event of disputes, limited to the investment market. Registered Consumer Protection Associations can file — if they represent at least 10 individuals — for a general judicial finding whether the factual and legal requirements for of claims or legal relationships are met or not.

These individuals have to register in order to inhibit their claims. Since these Adjudications are more of a general nature, each individual must assert their claims in their own court proceedings. The competent court is bound by the Model Declaratory Action decision. German law also recognizes the Associative Action Verbandklage , which is comparable to the class action and is predominantly used in environmental law. In civil law, the Associative Action is represented by a foreign body in the matter of asserting and enforcing individual claims and the claimant can no longer control the proceedings. Class actions can be brought by Germans in the U. For example, in the case of the Eschede derailment , the lawsuit was allowed because several aggrieved parties came from the USA and had purchased rail tickets there.

Decisions of the Indian Supreme Court in the s loosened strict locus standi requirements to permit the filing of suits on behalf of rights of deprived sections of society by public-minded individuals or bodies. Although not strictly "class action litigation" as it is understood in American law, Public Interest Litigation arose out of the wide powers of judicial review granted to the Supreme Court of India and the various High Courts under Article 32 and Article of the Constitution of India.

The sort of remedies sought from courts in Public Interest Litigation go beyond mere award of damages to all affected groups, and have sometimes controversially gone on to include Court monitoring of the implementation of legislation and even the framing of guidelines in the absence of Parliamentary legislation. However, this innovative jurisprudence did not help the victims of the Bhopal gas tragedy , [ citation needed ] who were unable to fully prosecute a class-action litigation as understood in the American sense against Union Carbide due to procedural rules that would make such litigation impossible to conclude and unwieldy to carry out. Instead, the Government of India exercised its right of parens patriae to appropriate all the claims of the victims and proceeded to litigate on their behalf, first in the New York courts and later, in the Indian courts.

Public interest litigation has now broadened in scope to cover larger and larger groups of citizens who may be affected by government inaction. Examples of this trend include the conversion of all public transport in the city of Delhi from diesel engines to CNG engines on the basis of the orders of the Delhi High Court ; the monitoring of forest use by the High Courts and the Supreme Court to ensure that there is no unjustified loss of forest cover; and the directions mandating the disclosure of assets of electoral candidates for the Houses of Parliament and State Assembly.

The Supreme Court has observed that the PIL has tended to become a means to gain publicity or obtain relief contrary to constitutionally valid legislation and policy. Observers point out that many High Courts and certain Supreme Court judges are reluctant to entertain PILs filed by non-governmental organizations and activists, citing concerns of separation of powers and parliamentary sovereignty. Campus Reform reached out to the university for comment, and the article will be updated accordingly. Follow the author of this article on Twitter: ajmunguia What you stand for is what defines you Conservative students on college campuses are marginalized, threatened, and silenced by threatening students who oppose their views, or radicalized liberal professors or administrators.

Campus Reform—and readers like you—are pushing back. Progressives would rather threaten you with violence, silence your conservative views, or call for you to be "canceled" from our society if you oppose them. They say your views are dangerous, hateful, fearful, or racist. They have it all wrong. What we stand for defines us—it always has. We can no longer remain silent. It is time for conservatives young and old to unite as a single voice to boldly proclaim what we stand for and oppose the mob.

Will you join with us, select the principles you stand for, and sign your name below? I stand for the preservation of free speech all across our country—where I'm allowed to express my beliefs without fear of condemnation if my opinion differs from yours. I stand for protections for conservative students who are illegally being threatened or silenced on college campuses all across our country. I stand for the federal funding to be pulled from colleges and universities when they silence conservative views or students.

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