Wednesday, November 30, 2005

Unique Defenses Can’t Stop Certification

Think the "fact that certain lead plaintiffs may be met by unique defenses" would interfere with class certification? Well, not this time, as Judge Rya W. Zobel (D. Mass.) has concluded in the Transkaryotic action that the whole thing can be solved by simply bifurcating the trial, "so that after first taking up the class-wide issue of fraud-on-the-market, a damages phase could follow if the trier of fact returned a verdict for the class. During this second phase, in which the plaintiff class would be parsed in various ways based upon the precise claims of its members, the defendants would have the opportunity to raise specific defenses against individual plaintiffs or groups of plaintiffs." As a result, "this option offers the means to preserve zealous representation by lead plaintiffs on behalf of the class as to liability under common theories and facts while avoiding a trial skewed towards unique defenses of lead plaintiffs and prejudicing the absent class members."

Result? Class Certified.

You can read In re Transkaryotic, issued November 28, 2005, at 2005 U.S. Dist. LEXIS 29656.

Nugget: "Furthermore, and even more importantly, is the very real risk that potential class members with relatively small claims would not have the financial incentives or wherewithal to seek legal redress for their injuries."

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