by Deepak Gupta
Another Class Action Ban Bites the Dust: Yesterday, a Florida appeals court struck down a class action ban in an auto lease agreement. Among other things, the ruling was based on the fact that attorneys' fees under the state's trade practices statute are limited based on the damages awarded: "Precluding class representation for holders of small claims whose attorney’s fees are limited by the amount of their individual damages," the court observed, would "dramatically undermine" the statute's "private enforcement mechanisms." Relatedly, a detailed new article in Lawyers USA surveys the ongoing battle over class action bans. The piece quotes not one, not two, but three of this blog's contributors--Paul Bland, Ira Rheingold, and Jon Sheldon.
More on Binding Mandatory Arbitration: Reporter Stephanie Mencimer has a terrific new story in Mother Jones on the evils of mandatory binding arbitration clauses, with a focus on used car sales; she recounts her own family's unsuccesful attempt to buy a used car without submitting to BMA and discusses the legislation pending in Congress. In a related blog post, she discusses how arbitration has hit one member of the military deployed to Iraq. In the field of arbitration fora stacked in favor of big business, the National Arbitration Forum is the worst of the worst; on Sunday, one NAF arbitrator posted a comment on this blog (scroll down) responding to a year-old post by Paul Bland discussing NAF bias. Judge for yourself.
"It might just be a good Christmas for books or movies": So says Senator Durbin, in response to questions about shopping for toys this season in the wake of scandals over toy recalls and lax Consumer Product Safety Commission enforcement. A broad consensus is emerging that something needs to be done about the CPSC. [via US PIRG and Consumerist]
A critical view of cy pres: In yesterday's Times, legal reporter Adam Liptak ran a column with a negative angle on the distribution of cy pres funds to charities. The column, which leans heavily on the views of NYU prof Sam Issacharoff, discusses these two opinions by Judge Harold Baer of the Southern District of New York--issued before and after reversal by the Second Circuit, respectively. The question before Judge Baer: When very few class members claim benefits, do you give those class members a share larger than their damages, or do you distribute the funds to related charities? Liptak is a good reporter, but this column may paint a somewhat unrepresentative picture of the use of cy pres in consumer class actions; look for a response here soon.