Atlantic reporter Rebecca Greenfield complains about meaningless relief in Apple class actions, but fails to understand that these particular class actions are brought for the benefit of the attorneys rather than the clients. [via Overlawyered]

MI's own Marie Gryphon, represented by me and Dan Greenberg, has filed an objection to the Magsafe settlement. (This objection is not done on behalf of the Manhattan Institute.) In its opposition to the objections lawyers for defendant Apple falsely accuses me of being opposed to all class actions, and argues that the court should discount Marie's objection because she works for the Cato Institute [sic]. General counsels take note: add Morrison & Foerster to the list of law firms who make arguments (and pretty stupid arguments at that) against their clients' long-term interests in the hopes of momentary advantage.

In a successful federal class action against AT&T, the class was about six million members, but only 6,961 people filed claims on the $10.2 million fund after $500,000 in advertising. The lawyers have already been paid $6.2 million, or nearly 38% of the common fund. At least the settlement was structured so that it's the claimants who get most of the windfall rather than unrelated third-party charities. But heaven forfend they use actual AT&T customer lists. The attorneys say that doing so would have cost $2 million (an implausible claim), but even that would have resulted in more money in the class's pockets. And the attorneys didn't have any compunction in asking for an extra $2 million for themselves above the 25% benchmark at the class's expense. [SF Chronicle via @Russell_Jackson]

• Loser pays bills pending in New Hampshire and Tennessee. [Torts Prof]
• Plaintiffs rely on fraud-on-the-market theory to get class certification in securities case, but, when it comes to avoiding summary judgment, rely on expert who contradicts the theory. Federal judge correctly doesn't buy it. [Roberts]

• Richard Epstein on health-care markets. [Kirkendall]
• Unseatbelted teenager dies when falling out of moving car while vomiting; mother and Maryland AG blame Four Loko; press uses photo of boy when he was eleven. [Baltimore Sun via WTOP]
• Buried lede: federal government hounds 62-year-old to suicide for regulatory infractions. [NYT]
• Don't try to open a business in San Francisco unless you're already rich. [Wright]
• Accusation: paternalistic federal prosecutors lax in charging crimes on Indian reservations. Native Americans should be given more self-governance rights. [NYT]
• A year after Tucson, real-world effects of Koch demonization by Left. Only coverage is local. [Wichita Eagle]
• What media bias? Double-standards for Santorum. I'm not a Santorum fan (a big-government social conservative is the worst of all possible worlds to me), but I don't understand why he can't be treated fairly. [WSJ]
• California's demographic revolution. [Mac Donald @ City Journal]

Teenager Donny Nuckel's parents were away for the weekend, and he decided to hold an unsupervised party for his Saddle River, New Jersey, friends. It wasn't at the level of Project X, but one of those party guests was a former employee of Harding Pharmacy: instead of chips, he brought along some Xanax he stole from his employer, which he passed along to another guest, then-17-year-old Scott Simon, who promptly overdosed and went into a coma. The other guests didn't bother to call an ambulance right away, and Simon suffered permanent nerve damage, which his lawyers allege would not have been permanent if he had been rushed to the hospital sooner.

So: to be straight, Simon took and overdosed on illegal drugs, given to him by someone who stole them and then failed to help him. Those are the two most culpable people, right?

Not in the New Jersey justice system, which rewards seeking out peripherally involved deep pockets and threatening them with the risk of jackpot justice. The Nuckel home is, according to Zillow, a 7000-square-foot affair worth over $2 million, so the Nuckels were sued, Donny for throwing the party, mom Linda for letting the party happen (presumably she was supposed to hire a babysitter or chain Donny up in a kennel). But Simon didn't stop there: he sued the other party guests; he sued Harding Pharmacy for letting the drugs be stolen; I'm told by a reporter that he even sued the maker of Xanax. (The last, again according to the reporter, has been dismissed, with the case on appeal.)

The others have settled. Simon gets $4.1 million, the lion's share from the deep pockets who at best have tertiary responsibility: $1.9 million from victim Harding Pharmacy, who surely didn't want its former employees to be stealing drugs, and $1.2 million from the Nuckels. I'm quoted in the FoxNews.com coverage, which emphasizes the unrelated Whitney Houston investigation into her pharmacies for hit-trolling reasons. More at NorthJersey.com.

Yesterday I argued the Cobell v. Salazar case in the DC Circuit. The Seventh and Ninth Circuits make their oral arguments available over the web, so I was surprised and disappointed to find that the DC Circuit does not. You'll have to settle for coverage from Indian Country Today and BLT. The case is under submission.

The Oglala Sioux tribe in the Pine Ridge Indian Reservation in the southwest corner of South Dakota say they have an alcoholism problem; one out of four infants born suffer from fetal alcohol syndrome. So they've attempted regulations to keep the reservation dry, but that just creates an alcohol smuggling problem in addition to the alcoholism problem; in any event, any Indians wanting to drink can just go across the border to Nebraska. (Just as there are fireworks stores lying on the other side of state lines, and many casinos on the California-Nevada border, a small town of twelve on the Nebraska-South Dakota border is home to four beer stores.) This is, the tribe says in a $500 million lawsuit, not the fault of the Indians who keep drinking, or the Indians who smuggle alcohol into the reservation, but the fault of the major beer manufacturers and the Nebraska beer stores. How it is these companies' responsibility to prevent the legal sale of beer is beyond me; are they supposed to engage in racial profiling at the checkout counter? Refuse to sell to vendors near dry areas?

The case is Oglala Sioux Tribe v. Schwarting, No. 4:12-cv-03027-JMG-CRZ (D. Neb.). The attorneys are the named partners of the White, Jorgenson firm in Omaha, who are doing their clients a disservice if they are not taking this case on a contingent basis (and merely doing themselves and society a disservice if they are). I've posted the complaint online.

1.7 million Tassimo coffee brewers are being recalled after several dozen incidents where the "T-cups" burst open and caused second-degree burns. Note the distinction between a product-liability case like Tassimo (where the allegation would be that a design defect causes hot coffee to spill on people) and one like Stella Liebeck's (where she alleged that any coffee that could potentially cause burns was defective because she spilled it on herself). Note also that the existence of the Tassimo burn cases refutes the very notion in the McDonald's case that it is unusual for coffee to be hot enough to cause hospitalizations.

There have been a variety of meritless lawsuits against power companies on a theory that power companies contributed to global warming, global warming contributes to property damage, therefore power companies are liable. Randy Maniloff discusses the case of AES Corp. v. Steadfast Ins. Co., 715 S.E.2d 28 (Va. 2011), where a power company (now joined by a state trial lawyers association on a motion for rehearing) unsuccessfully argued that these lawsuits created a duty to defend from its liability insurer.

A website owner plans to make a lot of money by renting out its well-situated domain names to asbestos plaintiffs' firms. The existence of the market demonstrates the effective cartelization of asbestos plaintiffs' practice: if asbestos firms competed on price, instead of consistently overcharging clients with riskless "contingency" fees, there would be no incentive for third parties to try to grab a share of the rent-seeking through the race to elbow one's way to the top of the search results for asbestos litigation websites. (See also the phenomenon of "chicken catchers" and "chicken pluckers.") Money that should end up in injured plaintiffs' pockets is instead finding its way into website-owners' pockets, via lawyers' excessive fees. I'm quoted in the LNL coverage. Earlier on POL.

I've noted before that one of the things that's surprised me most about my practice with the Center for Class Action Fairness (which, as always, is not affiliated with the Manhattan Institute) is how often law firms representing defendants will seek to lose the war to win exceedingly tiny battles at the long-term disadvantage of all of their corporate clients, including the one in the case.

Herzfeld & Rubin represents a number of Fortune 500 clients, including Volkswagen. For reasons that remain utterly inexplicable to me, they negotiated a settlement that arbitrarily excluded a million vehicles in the settlement class from receiving any pecuniary relief, while other class members were entitled to reimbursements of over $1000. My clients objected to the illegal intra-class disparities in the distribution, and, though VW should hypothetically be economically indifferent as to which class members receive which relief from a settlement fund they've already committed to pay, they've spent a lot of VW's money defending that distribution tooth and nail. We've argued that it made no sense to treat identically situated vehicles in a single settlement class differently: if a 1997 Audi and a 2009 Touareg are in the same class with the same claim and the same damages, there's no reason that the owner of the older Audi should get full reimbursement while the Touareg owner gets nothing. This isn't some odd right-wing ideological view of class actions; Public Citizen takes the same position about the same settlement. And if the argument is that it's okay to treat the uncertified "subclasses" differently because they're differently situated and have different individualized chances of success at trial, then there is obviously a Rule 23(a)(3) commonality problem that should preclude certification of the single settlement class.

This week, Herzfeld & Rubin has filed a brief defending the settlement by asking the Third Circuit to essentially eviscerate the Wal-Mart v. Dukes commonality requirements. Why would a defense law firm ask a court to take such a position ultimately so harmful to defendants' rights? Set aside an abusive personal attack that they made on me by name in an earlier appellate brief. Set aside that Sullivan v. DB Investments questionably narrowed Wal-Mart and other Supreme Court precedent: Herzfeld & Rubin is asking the court to make a questionable extension of Sullivan, a case that actually supports reversal. It would be one thing if this was just myopia of seeking a short-term result against long-term interests, but CCAF's argument against the settlement is largely irrelevant to VW's bottom line in this one case. It's a question of whether class members will get reimbursed or whether there will be leftover money in the settlement fund that will go to an unrelated charity some time in 2015; at worst to Volkswagen, a reversal will result in a wealth transfer from 1997 Audi owners to 2009 Touareg owners, and VW will, for interests of customer relations, make up the difference to Audi owners out of its own pocket. This is just seeking Pyrrhic victory for the sake of Pyrrhic victory: a notch in defense counsel's belt at the expense of their clients. And, of course, elimination of the commonality requirement is good for class-action defense firms, if not their clients.

Perhaps the fault is that of a general counsel who doesn't want to have to explain to his boss that a settlement needs to be renegotiated. But corporations are ill-served if their general counsels are not doing long-term strategic thinking. And they're worse served if their defense counsel is looking out for its own mercenary interests rather than the long-term interests of its clients.