The Class Action Playbook
Andrew Trask, author of the blog Class Action Countermeasures, recently sent me an advance copy of a new book that he co-authored with O’Melveny partner Brian Anderson: The Class Action Playbook (Oxford University Press 2010). The title is self-explanatory, and the book lives up to its name. It’s clear after just a few pages that the authors are eloquent writers who know their way around a class action. The book as a whole provides an anatomy of a class action from pre-filing to discovery, trial or settlement, appeal, and even post-judgment collateral attack. Each section contains concrete practice tips in addition to a discussion of the applicable legal principles and procedural requirements. Aside from being an accessible and comprehensive practitioner’s guide to litigating class actions, the book is filled with entertaining quips and illustrations that make the book an enjoyable read from cover to cover. Here are some examples:
On ascertainability as component of the numerosity requirement (pp. 23-24):
A merits-based (also known as a “fail-safe”) class is like Schrödinger’s cat: until the verdict, there is no way of telling whether the class has 1,000 members or none at all.
On drafting class certification briefs (p. 135):
Indeed, class-action litigation can sometimes seem almost fractal in nature. From the 30,000-foot view the plaintiff advocates, all issues look common: contracts are uniform, misrepresentations are substantially similar, and reasons for not hiring are all part of a larger pattern or practice. But from the close-up view the defendant advocates, every class member is unique, and common proof could never resolve everyone’s claims. One could say that the outcome of the class certification debate turns on whether the court decides that the lawsuit is best viewed through a telescope or a microscope.
On the importance of plain language notice (p. 185):
Most adults who pay with a credit card, use a cell phone, or drive a car have seen at least one class notice in their lives. Class notices have a reputation for being long and opaque, reading much like the credit cards agreements, cell phone calling plans, or warranties that the plaintiff complained about in the first place. Some of this complexity is unavoidable: It is extremely difficult to balance accuracy and clarity, and the presence of lawyers likely tips the scale in the wrong direction. . . .
I highly recommend the Class Action Playbook to fellow practitioners and their clients as well as students, judges, and academics alike. Very well done, gentlemen.
