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« Another Mervyn's amicus brief | Main | Two new law blogs »

Friday, October 14, 2005



I agree completely. Basically, Conley and now this case open the door for defendants to bury plaintiffs by compelling them to in effect defend a summary judgment motion in connection with class certification without the procedural safegaurds for a sj motion. I really hope someone seeks depublication.


Just read opinion. At bottom it says not for publication. That's good. Also, although I think the decision was wrong to deny class certification, the Court of Appeal laid out facts in detail, which would make it easy to distinguish: ununusal facts: the kind of gruesome details that occassionally make reading opinions like reading the National Enquirer.


what a screw up. just reread first senteance of post that says publication ordered. very bad.


Given that the opinion was published two days ago, I think it is safe to say that further appellate activity can be expected in this case. What is not clear from the opinion is the fact that the Court simply ignored a variety of issues, such as (1) the viability of a breach of contract class based upon uncontested evidence that Responsent uniformly breached a contract, and (2) the failure of Respondent to cite, even once, to the record on appeal. This decision was an unfortunate instance of profound over-reaching. The outcome may be explained, to a certain extent, by the fact that the panel also dealt with an earlier appeal in the case, after challenges to the pleadings, where much more sensational factual allegations were in play and were presumed true at the pleading stage. Still, any bias against the case because the facts may be something less sensational at certification is unjustifiable.


On the issue of bifurcated discovery, I would think that a defendant who requests and obtains bifurcated discovery would or should be estopped from making a merits argument at the class certification stage.


I agree with John's comment as well as Scott's. Like Scott, I was also struck by the Court's perception that the plaintiffs' decision to narrow the scope of their claims was a legitimate reason to decide the merits of the remaining claims at the class certification stage. You'd think the Court would want to encourage plaintiffs to carefully re-think their cases as they progress and perhaps to seek certification of a narrower class than originally pleaded. This opinion will have the opposite of its intended effect. If narrowing my claims will be interpreted as an invitation to decide the merits of my remaining, and strongest, claims at the class certification stage, why should I ever do it?

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