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December 2008 Newsletter |
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 | Business as Usual: Managing a Plaintiff Only Practice
By DANNY ABIR, ESQ. |
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There are probably very few areas that one would find parallels between a plaintiff only law practice and a conventional business. That is particularly true when it comes to finance and management of the firm. After all, how many conventional businesses spend every month without the prospect of recouping such expenditures for two or three, and sometimes even more, years? There are parallels one can draw with the research and development wing of pharmaceutical companies (historically loss leaders unless there is FDA approval on a drug). So how can a plaintiff only law practice avoid becoming a one case wonder, and in fact grow into a stable and prospering business venture? The answer is rather elementary - by running it just like a business.
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| The Applicability of Discover Bank to Negligent Conduct
By MATT BAILEY, ESQ. |
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In the ever present effort to restrict the availability of the class action mechanism by way of a waiver, an interesting argument has arisen which seeks to limit the applicability of Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005) to "intentional" or "fraudulent" conduct. The argument, which focuses on the "deliberate" term contained in the Court's holding, would require a plaintiff plead the defendant "has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money..." See Discover, 36 Cal. 4th at 162-163 (2005). True, some California Courts have engaged a literal application of Discover Bank's third element to find intentional conduct sufficient to render a class action waiver unenforceable. See e.g. Aral v. Earthlink, Inc., 134 Cal. App. 4th 544, 557 (2d Dist., 2005) ("Although Aral did not allege fraud, the gravamen of the complaint is that numerous consumers were cheated out of small sums of money through deliberate behavior."); Lowden v. T-Mobile USA, Inc., 512 F.3d 1213, 1220 (9th Cir., 2008); Shroyer v. New Cingular Wireless Servs., 498 F.3d 976, 984 (9th Cir. Cal. 2007) ("Shroyer's complaint alleges that for the purpose of increasing profits, Cingular took the deliberate action of inducing thousands of AT&T customers to enter into Cingular Agreements by misrepresenting to customers that their services would be improved only if they would enter into contract extensions with Cingular."). However, whether the applicable standard set forth in Discover Bank is limited to intentional conduct is subject to debate. For several reasons, the stronger argument would seem not to favor such a limitation.
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| Preemption: A Look into the Oral Arguments Heard in Wyeth v. Levine
By BAHAR DEJBAN, ESQ. |
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After months of speculation and theories on the future of preemption, the Supreme Court heard oral arguments in Wyeth v. Levine on November 3, 2008. A number of attorneys, including myself, have previously chimed in on what they believe the outcome of Wyeth will be based on the Court's decision in Riegel v. Medtronic. Prior to reading the transcripts of the oral arguments, I believed that based on the decision in Riegel, the Supreme Court was unlikely to create a broad-sweeping blanket preemption applicable to all pharmaceutical cases. I also believed that the facts in Wyeth were not typical of most pharmaceutical cases, and that any decision in favor of preemption in Wyeth would be narrowly tailored to a specific set of facts. After reading the transcript of the oral arguments and the justice's questions in Wyeth, I must admit that I am more confident that the Supreme Court has no intention of creating a uniform preemption rule that will bar all state pharmaceutical claims.
Read Bahar Dejbans's first article on Wyeth v. Levine.
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