Class Actions

Well, it’s only taken a week for ExamSoft to go from a random company whose name you couldn’t remember one week after the bar exam to “ExamSoft: Destroyer Of Worlds.” Today we can report that the first lawsuit has been filed against the company. It won’t be the last.

This is going to be a fun ride, and we are only at the beginning. By next week I predict the counter-narrative to get rolling. Maybe a dean will pen a New York Times op-ed about how kids these days, with their computers and text machines and MyBooks, don’t know how to take “personal responsibility.” Somebody will say that it is the test takers’ fault, for buying a program and having the audacity to believe that it would work as intended.

Looking deeper into my crystal taco, as lawsuits proliferate, there will be a circuit split. The Second and the Seventh will affirm decisions against ExamSoft, while the Third and Fifth will reverse. The Third will say that we need to learn a powerful lesson about our over-reliance on technology, while the Fifth will hold that a reasonable person wouldn’t try to write an essay in the clouds: “that’s pure hogwash,” it’ll say.

Eventually this will get to the Supreme Court, which will rule, 5-4, to relieve ExamSoft of liability. Writing for the majority, Justice Alito will argue: “When a person, such as ExamSoft, fails so spectacularly in its duties, the key question is to determine if that person is a man or a woman. If male, the person’s own sense of shame will be punishment enough. But if female, the Court must teach a lasting lesson. Here, we find ExamSoft to be a male person, and therefore must reverse the trial courts. The students should clearly incorporate themselves if they wish to pursue further remedies.” Concurring in part, Scalia will tell us that the bar has become too easy of a test and ExamSoft merely introduced a greater barrier to entry. Breyer’s dissent will be something like: “I was robbed once just like these test takers and, goodness gracious, it was scary.”

Okay, you’re welcome. Now that we all know where this thing is going, we can savor the wonderful journey together. Let’s look at the first lawsuit….

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Chum’s in the water, folks. And here come the sharks.

Since we first learned that ExamSoft ruined the otherwise relaxing experience of taking the bar exam, we’ve anticipated lawsuits. You can’t piss off all the would-be lawyers you can get your hands on and expect to come through un-served. It is known.

One person on Twitter put it this way: “Numerosity, commonality, typicality, adequacy: Pretty sure all harmed #barexam takers could form a class action against @ExamSoft.”

This law firm is happy to get that ball rolling…

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A rather cold fish.

* If you’ve ever wondered what’s being said about Supreme Court justices during the vetting process, we’ve got a great one-liner about Justice Breyer, who’s apparently a “rather cold fish.” Oooh, sick burn. [Wall Street Journal (sub. req.)]

* The NLJ 350 rankings are here, and this is where we get to see the big picture about the big boys of Biglaw. In 2013, it looks like headcount grew by 3.9 percent, which is good, but not great, all things considered. Meh. [National Law Journal]

* A Wisconsin judge is the latest to give her state’s ban on same-sex marriage the finger, and she did it with flair, noting in her opinion that “traditional” marriages throughout history were polygamous. [Bloomberg]

* The Ed O’Bannon antitrust case against the NCAA is going to trial today before Judge Claudia Wilken. Since it could change college sports forever, here’s everything you need to know about it. [USA Today]

* According to the Bureau of Labor Statistics, the number of those employed in the legal sector is at its lowest level since the beginning of 2014, with jobs still being shed. Welcome, graduates! [Am Law Daily]

* UC Irvine Law has finally earned full accreditation from the American Bar Association. We’d like to say nice work and congrats, but we’re pretty sure the ABA would fully accredit a toaster. [Los Angeles Times]

God Hates You, Buffalo

There is a scene in the film Buffalo ’66 in which Christina Ricci’s character tap dances at a bowling alley. She’s wearing a very short lilac dress to go along with her tap shoes and she begins her dance slowly. She ends it slowly too. The whole thing is slow, a Thorazine shuffle committed to celluloid by one of this country’s truly weird film directors. The scene prompted Roger Ebert to remark, “What’s this scene doing in “Buffalo ’66″? Maybe Gallo didn’t have any other movie he could put it in.” What’s this paragraph doing on Above the Law?

This week, the Buffalo Bills managed to be at the center of the sporting universe for the first time since Frank Wycheck lofted that perfectly tight spiral into the arms of Kevin Dyson. Before that, it was the 4 Super Bowl defeats. The point here, if there ever is one, is that the Bills are destined to occupy our collective conscious every few years as the butt of some cosmic joke we have yet to divine the meaning of. This week, the Bills carry on their illustrious history as God’s punchline, closing one lawsuit and preparing for another.

Let’s talk text messages and vagina fungus.

Let’s talk sports…

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Muscle Milk: drink this and you’ll write awesome pro se briefs.

I’m about to share with you an awesome pro se court filing from a law student who drinks Muscle Milk — enough of the stuff to belong to a class action of Muscle Milk consumers. Please try to envision what this submission might look like.

In terms of the student, I’m imagining a real meathead. He belonged to a frat in college. He’s not a great law student, but his family has connections that will help him land a job post-graduation. His bookshelf looks like this.

As for his pro se filing, it’s probably a tale told by an idiot, full of sound and fury (and Bluebooking errors). The UVA Libel Show would call it a Muscle-Milk-induced “roid rage of shame.”

But no, it’s not; it’s so much better than that. It’s actually a work of genius….

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Nicor Gas claims that all customers recorded heard a ‘warning’ before being recorded, and ‘consented’ by remaining on the line after the warning was given. But under the law, any consent only gave Nicor Gas a right to record, not to divulge or use the recordings. Any ‘consent’ they got from customers that permitted them to record was for the limited purpose of internal quality assurance – not for divulgence to outside parties, and certainly not for use in public court proceedings

Adam Levitt, a lawyer with Grant & Eisenhofer, in a class action filed against Nicor Gas, a natural gas distributor in northern Illinois. Nicor had a plan. They were so proud of using their recordings of customers in their defense. Too bad Illinois has an Eavesdropping Act that prohibits that. D’oh!

New Jersey Gov. Chris Christie

* The U.S. government has decreased funding to outside counsel for the third year in a row, leaving most Biglaw firms high and dry — except for Curtis Mallet-Prevost. Spend that $8.7M in contract cash wisely. [National Law Journal]

* Roberta Kaplan, the lawyer who brought DOMA down to its knees, is repping clients who want to intervene in the gay marriage case before the Tenth Circuit. Looks like somebody wants to be 2013 and 2014 Lawyer of the Year. [BuzzFeed]

* A judge has granted class action status in the suit challenging Virginia’s ban on same-sex marriage. Let’s see if David Boies and Ted Olson can take another case to the Supreme Court and win. [Reuters]

* If you’ve been wondering why David Wildstein picked the Friday before the Super Bowl to stab Governor Chris Christie in the back, Lat thinks it might have been “some kind of act of revenge.” [Bergen Record]

* No acquittals this time: George Zimmerman is planning to enter the wonderful world of “celebrity” boxing. He’s set to enter the ring on March 1, and is more than likely to get his ass kicked. [Chicago Tribune]

The law firm of Seyfarth Shaw, known for its labor and employment expertise, just released its tenth annual Workplace Class Action Litigation Report. The report details the important trends in workplace litigation going into 2014 and analyzes “1,123 class action rulings on a circuit-by-circuit and state-by-state basis.”

The verdict, in a nutshell, is that the Supreme Court has bent over backward to protect businesses from these suits, but they still come up… and one category of workplace suit is even growing exponentially. Any guesses?

So what are businesses going to face out there this year?

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Judge Kozinski: turning over a new LEAF?

That’s right, plaintiffs’ counsel sat down to the negotiating table and cut a deal, without knowing a single thing about what cards their opponents held. For all counsel knew — for all they know even today — there are memoranda and reports in Nissan’s internal files disclosing that the LEAF’s Lithium-Ion battery suffers from a variety of defects, and that Nissan nevertheless decided to go to market with it.

– Chief Judge Alex Kozinski, filing an objection to a class action settlement between Nissan and buyers and leasers of its electric car, the LEAF. Alison Frankel of Reuters describes having Chief Judge Kozinski as an objector as a “lawyer’s nightmare.”

Jodi Arias

* Trouble in paradise, so soon? The proposed merger between Dentons and McKenna Long & Aldridge has been delayed. McKenna has postponed its partnership vote, and Dentons says no partnership vote was ever planned. [Daily Report]

* Wherein a firm fails to Latham an ex-employee’s baby mama drama: a legal secretary who was allegedly told her pregnancy complications “were not [the director of HR's] problem” will see her case against L&W move forward. [Blog of Legal Times]

* You know that relations have grown bitter between opposing counsel when attorneys from one firm refer to lawyers from the other as “Monday Morning Quarterbacks.” The legal fee dispute in the BARBRI antitrust case rages on at the Ninth Circuit. [National Law Journal]

* Paging ProudCooleyGrad: Kurzon Strauss, the firm that sued Cooley Law over its allegedly deceptive job stats, is trying to get records unsealed in the school’s defamation case that’s now on appeal. [MLive.com]

* Convicted murderer and jailhouse hottie Jodi Arias is accepting donations for her appeals fund. It could be worth your while — if you donate enough, maybe she’ll consider turning you into her next victim. [HLN TV]

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