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The Complex Litigator
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I note that, rather than responding to the premise of my column, Mr. Norris chose to construe my column as an attack on the hard-working judges throughout California. Nothing in my column stated a lack of appreciation for the hard work that Courts do, and my blog has frequently noted those opinions where Courts were called upon to determine exceedingly difficult issues and did so above the call of duty. Instead, I take issue with Courts that view Supreme Court decisions as irrelevant, a disturbing conclusion for any lower Court to reach. I then noted that, based upon numbers of cases and statistics, there is a low probability that a lower Court will see any particular case reviewed. Finally, as an advocate, I'm more than entitled to express the opinion that various Court decisions are not consistent with controlling law.
Toggle Commented Nov 20, 2009 on "When Courts Disagree" at The UCL Practitioner
Happy Anniversary! I credit your blog as one of the major inspirations for starting my own blogging effort (and I blame you for exposing my blog before I had decided to "go public" about it). A year and half of blogging gives me some sense of how much time and effort you've put in to make it to six years. The sense of the "technorati" was that blogging was fading in significance with the rise of microblogging platforms like Twitter. However, people realized that some issues require more discussion than is possible on a microblogging platform, and there has been a renewed faith in blogging. That means everyone is still looking to you for commentary and news, so keep up the great work.
Toggle Commented Oct 8, 2009 on Bloggiversary at The UCL Practitioner
Morgan, et al. v. AT&T Wireless Services, Inc. (September 23, 2009) directly conflicts with the unnecessary comments in Yabsley related to the CLRA demand timing. If this opinion were brought to the Supreme Court's attention, it might increase the chance for review on that point.
My pleasure. I'm glad somebody wrote about it. I've been tired ever since Blawg Review #221.
Mr. Sussman's comments may have some pragmatic accuracy, in that the federal district courts in California have been trending towards a more restrictive application of California law, but the view is not supported by existing authority. A significant number of federal decisions address imputation of classwide reliance so long as materiality is established. In those decisions, the class representative has to satisfy actual standing requirements that are merely presumed for the balance of the class.
Regarding your question about "joining" one of the lawsuits, the benefit of class action litigation for class members is that they can choose to do nothing and wait for the outcome. Assuming a customer has a current address on file with AT&T, I'd think it likely that the customer would receive a notice about the class action if it is successfully certified by a court. I don't know enough about the details of any of those suits to predict what AT&T, or Apple, for that matter, might do in response. I do know that AT&T is reportedly in the midst of a feverish build-out of their 3G network so that it can handle something on the order of 10 times the current traffic load. Tech sites are reporting that the build-out is related to an anticipated new iPhone due in June 2009. Rumors suggest that the new phone will have video capability and VOIP ability through Skype and other applications, requiring more bandwidth. I have also heard that, due in part to iPhone connection complaints, AT&T is moving more quickly to its 850Mhz spectrum (from 1900Mhz) because of the better structure penetration properties of the lower frequency signals. You may (like me) end up being the beneficiary of the shift to 850Mhz and increased network bandwidth. From AT&T's perspective, the lawsuits are probably viewed as just part of an overall need to lure more customers from other providers with better reliability and signal quality. The iPhone, more than any other phone before it, has caused consumers to switch carriers just for the phone.
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The above comment touches on an issue common to appeals. When a court writes an opinion, it rarely includes substantial arguments or facts that undermine the result. Just reading the opinion, it isn't clear that the jury instructions were so cursory. Instead, the appeal focuses on standard of review, as if the decision turns on whether substantial evidence supports the judgment. Having not reviewed the briefing, I can't comment on what was presented to the Court of Appeal compard to what was decided. Not that I find this result surprising. Despite all of the cases in recent years that touch on the Borello factors, it still seems to be an area generating a great deal of confusion. It seems like any opportunity to avoid clarifying the concept of employment is greeted as a desirable escape hatch.
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Betty: Unfortunately, I don't know anything about either the class action case or the settlement that you mentioned. I will leave comments open on this post so that any reader willing to provide information to you can do so through another comment. Good luck, H. Scott Leviant The Complex Litigator
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Mr. Rosenstock: Interesting feedback from someone evidently in the thick of it. I remain curious, however, as to whether this type of legislation will happen with greater frequency as a way to tweak the system without actually having to obtain consensus on an overhaul of a statutory scheme. Here we have what amounts to a safe harbor period under FACTA. I wonder whether we will see legislation that reduces or eliminates statutory penalties in situations where large numbers of lawsuits gain attention in a relatively short span of time. I do note the incongruity with this legislation and the nonchalant reaction to the fax-spam suits, some of which generated destructive statutory penalties in the many millions of dollars that were certainly in excess of the harm caused by fax spamming. Toner and fax time don't cost $1,500 a page. It seems in the fax cases that fax spams were an irritant to everyone (hence no sympathy for the offender), whereas the FACTA receipt suits concern a topic that doesn't outrage most people. It is my sense that we are on the cusp of change in the way class actions are responded to by defendants, their counsel and lobby groups. I speculate that the nature of damage claims will be an area of rapid development.
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Dave: I am appreciative of your quick comment in response to my post. I forwarded a copy of my prior e-mail directly to you (I used e-mail rather than your site request form). I am confident of two things: (1) law firms are notoriously slow to adopt new technology, and (2) the IronKey looks like the best encryption solution I've seen for the types of uses that would routinely arise in the practice of law. I think IT departments at law firms would find it much easier to have clean laptops available for attorneys and then provide them with case files on their IronKey when away from the firm (at depositions, interviewing witnesses, reviewing key documents with clients, etc.). Best regards, The Complex Litigator (H. Scott Leviant)
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I do not lie. Nice choice in post handles, by the way.
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That's an appropriate qualifier you've added to the discussion. Perhaps it would be more accurate to say that small firm attorneys seem to have less hesitancy to try new marketing options, such as blogs, since they lack the resources of the Am Law 200 firms. The big firms that ARE blogging appear to be realizing benefits, but the field is still so young that it is hard to assess what benefits and costs will ultimately impact the pioneers of the blawgosphere.
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