Posts belonging to Category Law Firms & Lawyers

Donald Cullen, a deaf college student, filed suit against Netflix over alleged violations of the Americans with Disabilities Act (ADA) and California’s Disabled Persons and Unruh Civil Rights Acts, claiming that Netflix failed to provide adequate closed captioning and made misleading statements about the availability of closed captioning in Netflix’s streaming movies and TV shows. While Cullen’s suit was pending, the National Association of the Deaf (NAD) filed and settled a similar action against Netflix, which resulted in a consent decree requiring that Netflix provide closed captioning in all streaming video by September of 2014. As a result, Cullen opted to dismiss his ADA claims.

Although Cullen’s suit did not directly generate the settlement resulting in the consent decree, it was likely among the constellation of forces — a “catalyst” under pertinent doctrine — that compelled Netflix to agree to precisely the relief that Cullen sought in his earlier-filed case. As such, Cullen’s attorneys sought fees of $250,000 based on that theory, noting that Cullen effectively prevailed in his litigation aims (insofar as his claims were virtually identical to those in the NAD lawsuit) and that in the course of litigating the case, Cullen and his counsel contributed to negotiations and decisions that ultimately led to the settlement with the NAD. However, Netflix’s counsel, San Francisco-based Morrison & Forster, not only opposed the attempt by Cullen’s counsel to recover fees, but argued that Netflix should be awarded $165,000 to pay Morrison & Forster for efforts spent defending against Cullen’s suit.

On May 1st, U.S. District Court Judge Edward J. Davila issued a decision denying both fee motions. Cullen v. Netflix, No. 11-1199 (N.D. Cal. May 1, 2013) (order denying plaintiff’s and defendant’s motions for attorneys’ fees, available here). Judge Davila held that Cullen had not successfully argued for application of the catalyst theory, finding that he failed to establish the requisite causal connection between his suit and the NAD-negotiated consent decree. Order at 4-5. In rejecting the Netflix fee motion, Judge Davila found that Netflix fell well short of establishing the criteria for a prevailing party entitled to fees, and hinted that the Cullen fee decision was a close call, since Cullen filed his claims “not only to rectify an alleged harm on his own behalf, but also to serve a greater purpose in the form of establishing certain civil rights standards and thresholds on behalf of a class of disabled individuals.” Order at 7.

Ultimately, that greater purpose will be served by the consent decree that will eventually provide for full closed captioning of Netflix streaming videos. Whether Cullen’s fee motion might have been granted in the absence of Netflix having filed its own fee motion cannot be known.

The New York Times reports that law schools are starting law firms, ostensibly to provide real-world training to law students and provide legal aid to underserved populations, but with the additional benefits of providing a soft landing for graduates unable to get a job and boosting law-school employment statistics.

The Times article focuses on the non-profit firm, Alumni Law Group, established by Arizona State University, and includes a photo of two Arizona State students working on an unemployment benefits case (presumably for outside clients, not themselves). Arizona State and other schools that have launched similar programs cast these organizations in visionary terms, pointing to the school-affiliated firms as providing affordable legal services to those who might otherwise be unable to retain representation.

While the Times article reaches to portray the trend as one being adopted by more elite schools — comparing it to the business school certificate at the University of Pennsylvania and credit-for-work program at the University of Virginia — for now Arizona State is in the company of perennial US News & World Report rankings laggards Thomas Jefferson Law School in California and Pace Law School in New York. There is no word yet whether these newly-created firms will be ranked by Vault and other prominent sources of law firm rankings.

Securities Class Action Services has released its annual list of the top 50 securities firms (the “SCAS 50”).  The top 10 firms for 2011 are as follows: 

1. Bernstein Litowitz Berger & Grossmann
2. Robbins Geller Rudman & Dowd
3. Labaton Sucharow
4. Kessler Topaz Meltzer & Check
5. Hagens Berman Sobol Shapiro
6. Grant & Eisenhofer
7. Cohen Milstein Sellers & Toll
8. Lovell Stewart Halebian Jacobson
9. Milberg
10. Wolf Haldenstein Adler Freeman & Herz

The full list is available here. The Bernstein Litowitz firm claimed the top spot with over $1.3 billion in total settlement proceeds from 13 settlements (the third-highest number overall), including a $208.5 million settlement with Washington Mutual. The firm’s average of nearly $106 million per settlement was one of only three per-settlement averages of $100 million or more, and is second only to Lovell Stewart’s nearly $119 million average (based on a single settlement with PIMCO). The three firms topping the SCAS 50 — Bernstein Litowitz, Robbins Geller and Labaton Sucharow — accounted for more than half of all securities settlements in 2011.

The Supreme Court’s Dukes v. Wal-Mart decision has garnered a great deal of attention in the popular press, likely due to the prominence of the defendant and the allegations that Wal-Mart systematically discriminated against female employees.  In addition to introducing a more onerous commonality standard, Dukes entailed at least two other issues bearing on the mechanics of class actions: (1) that individualized money damages cannot be awarded in Rule 23(b)(2) class actions; and (2) that affirmative defenses must be assessed in individualized hearings, seemingly precluding the sampling and survey methods that buttress class actions’ essential efficiencies.

Professor John C. Coffee, who holds the Adolf A. Berle Professorship at Columbia Law School, has suggested how these more complex Dukes issues might play out.  In a recent National Law Journal article, Professor Coffee suggested that the post-Dukes realities might not be as bleak as has been projected for plaintiffs, so long as plaintiffs’ lawyers advocate, and federal district court judges adopt, innovative procedural methods and intellectually cutting-edge approaches.

No Individualized Money Damages Under 23(b)(2).  With the Dukes holding that Rule 23(b)(2) injunctive actions can no longer commingle with Rule 23(b)(3) actions seeking monetary damages, class actions seeking monetary damages must be certified under Rule 23(b)(3).  However, the latter rule’s severe “predominance” requirement makes it ill-suited to the natural diversities that arise in cases against large defendants, such as violations occurring across multiple employment locations.  While Rule 23(b)(2) injunctive actions remain an option, the lack of certain methods for valuing such relief, and thus establishing fee awards, will continue to function as a disincentive.  Moreover, “claim splitting” prohibitions (exacerbated by the 23(b)(2) no-opt-out provision) and conflict arguments have typically been seen as insurmountable obstacles to bringing separate class actions for injunctive and monetary relief.  Not so, argues Professor Coffee.  First, federal courts can certify (and have certified) parallel (b)(2) and (b)(3) cases, each with their own class representatives.  Second, courts have ruled that the Due Process Clause trumps Rule 23(b)(2)’s mandatory provision proscribing opt outs, thereby obviating the claim splitting impediment.  Finally, Professor Coffee suggests that the pure muscle of legal argument may provide a solution: because Dukes prohibits monetary damages in (b)(2) classes, there is no overlap with (b)(3) classes.  Thus, the essence of claim splitting—failure to raise an argument in one case that could have been raised in the other case—is altogether avoided.

Rejection of Sampling Procedures.   Professor Coffee offers several possible solutions for dealing with Dukes’ holding permitting individualized hearings as to affirmative defenses.  First, he suggests challenging whether the affirmative defenses are pleaded with sufficient particularity, using the heightened pleading standards of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).  While this tool is most often employed by defendants to challenge the particularity of complaints, it is equally applicable to Rule 12 challenges to affirmative defenses.  Second, plaintiffs can concede the necessity of individualized hearings and take the initiative to propose pragmatic ways for those hearings to take place, such as before a special master or magistrate judge.  Finally, Professor Coffee suggests decoupling the liability determination from affirmative defenses by using the much-neglected Federal Rule 23(c)(4).  This would permit plaintiffs to adjudicate only liability on a class-wide basis, and, thereafter, resolve affirmative defenses and determine damages in individual actions.  The “issue certification” authorized by Rule 23(c)(4) has so thin a record in reported caselaw that, perhaps fortunately for plaintiffs’ counsel contemplating this innovative use, there is little pre-existing guidance.

 At a minimum, Dukes implies that the trial plans long encouraged by federal courts and practical treatises such as the Manual for Complex Litigation must now become more detailed in addressing the requirements and challenges imposed by Dukes.  As such, some or all of Professor Coffee’s suggested innovations will perhaps turn up, first in trial plans, and later in reported cases.  Already, Dukes has been cited more than 50 times and distinguished in 23 of those cases, suggesting that the new strictures are just as navigable as Professor Coffee suggests.