This week I had the privilege of serving as a panelist at the
ABA's 16th Annual National Institute on Class Actions.
This year's' program, like last year's, was
organized and moderated by Dan Karon, a Cleveland-based lawyer with a
flair for showmanship who makes the event not only highly
informative but also lively and entertaining. With the help
of a stellar ABA staff and excellent faculty, Dan once again
produced an outstanding program.
For my money, the highlight of each year's Institute is the
opening presentation by Professor Jack Coffee of Columbia Law School
concerning the past year's developments in class action law and
procedure. The Institute has included Professor Coffee's
lecture every year since its inception. This year, for the
first time, he shared the hour with Professor Alexandra Lahav, a member of the
faculty of the University of Connecticut Law School. The two
professors discussed the class action cases on this year's
Supreme Court docket, as well as several important federal
appellate decisions from the past year. The rest of the
faculty included other academics, judges (perhaps most notably Judge Lee Rosenthal, former Chair of the Civil
Rules Committee and of the Judicial Conference Committee on the
Rules of Practice and Procedure), and several experienced class
action lawyers from both the plaintiffs' and defendants'
The panel discussions at the Institute always feature lively
debates about a variety of timely topics. My panel's
topic was class definitions (mentioned briefly in my 9/10/12 post),
the critical but too often overlooked feature of every class action
complaint and proposed class certification order. Other
topics included emerging trends in Rule 23(b)(2) class actions,
litigating class cases alongside opt-outs in multi-district
litigation, privacy class actions, and managing class-action
Last year's Institute followed on the heels of the Supreme
Court's decisions in AT&T Mobility LLC v.
Concepcion, and Wal-Mart Stores, Inc. v. Dukes (see
the sidebar for links to these cases). Those cases were
discussed at length last year, and continued to cast their shadow
in this year's program. Professors Coffee and Lahav
discussed the past year's cases affected by the
Concepcion and Wal-Mart rulings, and
Wal-Mart themes popped up in many of the panels'
The mood among the plaintiffs' lawyers was different from
last year, however. Last year's program was punctuated
with recurrent grumblings of the plaintiffs' bar about the
Supreme Court's groundbreaking decisions and their effects on
class action practice. This year's program saw few
remnants of last year's downbeat mood. If anything, the
program once again revealed the resilience of the plaintiffs'
bar as they look for new and creative ways to overcome procedural
obstacles and continue to file class actions against a variety of
industries raising a variety of claims, as well as the
determination of the defense bar to defeat meritless and
Over the years that I have done battle in the class actions
arena, I have found the National Institute to be an invaluable
program for keeping abreast of trends and developments in class
action filings, strategies and decisions. Thanks to the
creativity and hard work of Dan Karon, the experience and insights
of the diverse faculty, and the organizational talent of the ABA
staff, this year was no exception.
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In a recent decision characterizing precedent as a seven decade "aberration," the Supreme Court of California permitted plaintiff loan borrowers to introduce against a defendant banking institution parol evidence directly contradicting the very terms of the parties’ written loan agreement.