Author Archives: ligitsec

Has the Roberts Court Killed Class Actions?

The Nation recently made the claim that the Supreme Court has made it virtually impossible to file a class action lawsuit. As evidence, several key cases were cited from the 2010-2011 term which are said to have had “far-reaching” implications on other would-be litigants who want to come together to pursue claims against big companies.  The cases included Wal-Mart v. Dukes and AT&T Mobility v. Concepcion.

The outcomes of these two cases arguably made it more difficult for plaintiffs to satisfy the rules for a class action and may be responsible for forcing some plaintiffs into filing individual claims that must be resolved in arbitration. The ability of file a class action lawsuit, however, still exists and some types of class actions actually have been increasing. In 2013, for example, plaintiffs filed 166 federal class actions in securities cases, which is 14 more than the number of securities class actions filed in 2012.[1]

Class actions remain a viable approach to resolving legal issues, making it easier for plaintiffs to get compensated and for defendants to resolve multiple claims in a timely manner. An experienced NY litigation lawyer should be consulted for assistance in filing or defending a class action. An attorney with litigation experience can also provide guidance on what the options may be available for pursuing a civil claim for damages or for responding to such a claim.

Class Action Rulings Affect Litigant Rights

In AT&T Mobility v. Concepcion, cell phone customers were promised a free cell phone but sued after they were charged a $30.22 sales tax. The customers had signed a contract that contained an arbitration clause and that waived the right to file a claim as a class, which meant each individual plaintiff would need to pursue arbitration independently. The lower courts said the clause was unconscionable and thus unenforceable. The Supreme Court, however, upheld the class action waiver in the contract and upheld the arbitration clause limiting dispute resolution to arbitration.

Following the decision in AT&T Mobility v. Concepcion, the percentage of companies prohibiting class actions in their arbitration clauses more than doubled, from 21.4 percent of companies before the decision to 45.8 percent after the decision.  In addition, more than 85 percent of contracts now include class-action waivers and tens of millions of contracts have mandatory arbitration clauses. In many of these company contracts, clauses broadly preclude class actions in any type of legal proceeding, not just in arbitration or litigation.

In Wal-Mart v. Dukes, the Supreme Court addressed class certification. Current and former female employees of Wal-Mart claimed that the company had a corporate culture fostering gender stereotypes, which affected pay and promotions.  Lower courts said the class action could proceed, but the Supreme Court overturned these decisions. Within six months of the Supreme Court’s ruling, judges in hundreds of cases denied class certifications and cited Wal-Mart v. Dukes.  The women who had initially attempted to sue the company filed separate regional lawsuits, most of which are still pending.

The Nation argues that these two decisions collectively helped businesses by making it more difficult for plaintiffs to file class actions and by making it less likely that a class action would be certified, even if an arbitration clause and/or class action waiver did not prevent it from being filed in the first place.  Despite these setbacks however, hundreds of class action lawsuits continued to be filed every year alleging employment discrimination, defective products, and other wrongs.

A NY litigation lawyer understands the rules for class actions and for other types of civil litigation and can provide invaluable assistance to those who need help navigating the complex legal system.  Contact an attorney as soon as possible for assistance with your case so you can make informed choices about what your rights are under the law and get advice on how to proceed with making strategic decisions to protect your interests when litigation arises.

 

Judge Rules House Can Sue Obama Administration on Health Care Spending

Obamacare Merged With Private Insurance Raises Hackles on Both Sides of the Aisle

Judge Rules House Can Sue Obama Administration on Health Care SpendingPresidential candidate Ted Cruz received a lesson in Iowa last week.

A citizen told Cruz a story about his brother-in-law, a man who never had health coverage because  money was tight. He got coverage due to the Affordable Care Act, popularly known as “Obamacare” and then found coverage had not come in time.

Nothing would save him from terminal cancer.

The man asked how Cruz would change the rule that may have protected his brother-in-law. All he heard was a rehearsed response about government laws and the frequent claims that Obamacare has ruined thousands of positions and made premiums go through the roof.

What can we discern from the encounter between Mr. Cruz and the voter? First, the ACA is now producing well. It didn’t come quick enough to preserve the voter’s brother-in-law, however it will save countless others.

If that’s the case, why do we hear progressives — as well as conservatives — wrecking President Obama’s signature policy achievement?

A portion of the solution is that Bernie Sanders has worked to make single-payer health care the highlight of his crusade. Some Sanders followers have turned to denouncing Obamacare as a broken policy.

Turn the calendar back to 2008 and we see something similar happening. Some Obama fans briefly become hostile foes of the individual fiat — the provision that everybody buy coverage — which Hillary approved, but Obama rejected.

Back to 2016, Sanders is only repeating left-wing reviews of health reformation that were previously around. Some of the critiques have value — others don’t.

Good Critiques

The amount of Americans without coverage has fallen steadily and sharply. The decline has been especially noticeable in regions that have attempted to see the legislation work. But many are yet without coverage, and in relative few instances, high deductibles make protection less valuable than it could be.

This isn’t fixed in a non-single-payer method. Other nations have Obamacare-type healthcare such as the Netherlands and Switzerland. Obamacare, as it currently exists, may not rise to the level of either country because it is underfunded.

Meanwhile, cost restraint is looking healthier than even advocates have anticipated.

Much of the noise of the progressives is not a criticism of how the change falls short as it is indignity that insurers get to have a seat at the table. The idea, it seems, is that any position for the value angle colors the entire attempt.

The administration has already dealt with this by pointing out that Obamacare has language which states that government payment to private insurance companies to help cover health care premiums is compulsory and not subordinate to Congress’s annual spending bills.

Yes, Obamacare did maintain private coverage, largely to circumvent big, politically perilous transitions for citizens who already had sufficient protection. But Obama also wanted to get support from the insurance industry. The reality that some carriers are profiting from reformation isn’t a basis to deny that improvement. The whole point of Obamacare is to help those without coverage, not to discipline insurance companies.

To be clear, whoever ends up being the Democratic nominee, the general election will be a referendum on whether to preserve the real, if incomplete, progress we’ve made on health, financial reform and the environment.

The last thing progressives should be doing is trash-talking the progress and impugning the motives of people who are basically on their side.

Bloggers and Advertisers Beware: FTC Rules on Sponsored Endorsements Create Major Risks for “Word of Mouth” Advertising

Bloggers and Advertisers Beware: FTC Rules on Sponsored Endorsements Create Major Risks for "Word of Mouth" AdvertisingNew FTC Rules on Bloggers: According to the Word of Mouth Marketing Association (WOMMA), word of mouth advertising is “the most honest form of marketing, building upon people’s natural desire to share their experiences with family, friends, and colleagues.” But here comes the rub. When marketers pay for “word of mouth” messages, haven’t the messages ceased to be the result of “people’s natural desire to share” — and instead become the result of people’s natural desire to make money?

This certainly is the view of the FTC, which on October 5, 2009 finalized a new revision of its rules governing the use of testimonials and endorsements in advertising (to be codified at 16 C.F.R. §255). These revisions make it clear that the FTC intends to extend the reach of its advertising regulation and enforcement to bloggers who make sponsored endorsements of products and services.

The rules affect both advertisers and bloggers who cooperate on sponsored endorsements. For example, the new rules state that the FTC intends to hold both advertisers and bloggers liable for false and misleading statements made by either party in the course of an endorsement. This means that an advertiser who provides free products to a blogger can be liable if the blogger makes false statements about the products in her blog. And the blogger can be liable if she repeats false statements from the advertiser. Both parties can also be liable if the blogger fails to disclose her connection with the advertiser.

Word of mouth advertising in the age of Web 2.0

Word of mouth advertising was once naively thought to refer to a spontaneous and uncompensated testimonial communicated from one consumer who was excited about a product he had just tried to another customer. Word of mouth marketing has long been thought to be more effective than print advertising because the message comes from a peer that the customer trusts. When a customer hears a peer rave about a product, she assumes that the endorser is speaking out of his genuine experience with the product.

Now that we have moved into the world of Web 2.0, which has put the megaphone of the Internet into the hands of consumers, word of mouth has morphed into planned, compensated advertising that is piped through consumers via social media, such as blogs. This once spontaneous activity now has its own trade association — WOMMA — which boasts over 400 marketers as members.

WOMMA’s website lists about a dozen different types of word of mouth marketing campaigns, by which an advertiser can “harness, amplify, and improve” on this “pre-existing phenomenon.” Some of these methods include old-fashioned P.R., such as using high-profile entertainment events or news to create “buzz.” Others include creating social networks or affinity groups of users that have a special interest in a product.

However, several categories involve providing products or compensation to “influential” consumers, who “volunteer” to tell others about the product. In “product seeding,” the marketer provides samples of product to “influential” individuals, such as bloggers or persons with large social networks, who then write posts about the product on their sites. In “evangelist” and “influencer” marketing, the marketing “cultivates evangelists, advocates, or volunteers who are encouraged to take a leadership role in actively spreading the word on [the marketer’s] behalf” — in other words, the marketer pays the blogger to write about the product.

Social media posts covered by the FTC rules

The new FTC rules don’t constitute a new extension of the FTC regulations on deceptive advertising to blogs. The prior FTC rules already arguably covered any form of media, including social media, such as blogs. Rather, the new rules and the FTC’s statements in its Notice of Adoption simply make it clear that the FTC intends enforce these rules on new media sites, including, specifically, blogs.

 

The Abortion Battle – Texas Likely to Lead

It is expected that the next big Supreme Court case involving abortion will originate from Texas. In 2013, a law was implemented that closed abortion clinics in Texas significantly reducing access to abortion and an increase in abortion costs for women who still chose to go through the procedure.

Texas has 17 abortion clinics today as compared to 41 in 2012. These 17 clinics are located in major cities but the Texas County is nearly 111 miles away from the nearest clinic. This change in the number of clinics and their accessibility occurred after the restrictions, part of House Bill 2, were imposed in 2013 under which clinics were required to meet ambulatory surgical centre standards and physicians needed to have admitting privileges at the local hospital. The goal of the legislation was to safeguard women’s health. However, critics were of the opinion that the regulations were unnecessary and were nothing but an undue burden on women’s right.

House Bill 2 has affected western Texas the most because it is more rural. Women have to travel nearly 250 miles to reach the nearest clinic. Nearly a fifth of all Texas counties are approximately 100 miles from a clinic. Keeping the Teas population density in mind and the uproar over these restrictions, it is quite likely that opponents will challenge this legislation in the Supreme Court.

Dan Grossman, the vice president for research at Ibis Reproductive Health, countered in an interview that abortion “is the only procedure that’s being singled out in terms of all these requirements.” The sparseness of other medical services is not the consequence of legislators trying to shut down their facilities, a fundamental difference, he said.

It is expected that the Supreme Court will hear the case Whole Woman’s Health versus Cole in November. Arguments are expected around February and a decision should be made by June 2016. If those challenging the restrictions win the case, then these restrictions will be classified as unconstitutional and all those clinics that were shut down will be able to reopen their services. However, if the opponents are not given the chance to argue their case in front of the Supreme Court, then 7 more clinics out of the remaining 17 clinics in Texas are also likely to be closed down. That is because they don’t meet the ambulatory surgical centre requirement and do not have a large nursing staff and rigid temperature control. For the moment, these clinics are operations on the basis of a stay that was issued by the Supreme Court till an appeal was filed.

Let’s see how events unfold and how this abortion battle plays out. Other states including Mississippi and Louisiana have also passed the same restrictions and are likely to face the same resistance. It all depends on how the Supreme Court rules on the issue.

Uber’s Attempt to Avoid Class-Action Lawsuit

Uber has faced one of its biggest courtroom confrontations in its effort to and convince a judge to block a lawsuit from turning into a class-action suit.

The suit in question seeks mileage and tip reimbursement for 160,000 Uber drivers in California. The case will go before US District Judge Edward Chen where he will decide whether it should be granted class-action status.

This court case comes at a time when on-demand companies like Uber, Lyft and Postmates are showing rapid growth and have become quite popular because they have been able to create a vast pool of cheap and flexible labor as well as provide users convenient transportation. Freelancers Union reports that approximately 53 million Americans now work as freelance contractors. The American Action Forum also reports that independent contractors account for 29 percent of jobs that were added between 2010 and 2014.

However, the rise in freelance workers has not been accompanied with protections for such workers. Independent workers do not receive any Social Security, Medicare and workers’ compensation. They also cannot unionize. Unless and until broader protections are provided to such workers, this business model may not be able to survive for too long.

The California Labor Commission has already ruled in June that San Francisco based Uber drivers should be considered as employees and should receive compensation for mileage and other expenses. Companies like Luxe, Instacart and Shyp have also announced their intention to convert some of their employees to part time or full time status. However, Uber continues to face allegations about unfair treatment to its freelance contractors.

Uber’s lead counsel Ted Boutrous told the judge that it would not be wise to lump the issues of thousands of drivers into a single suit. His argument is that there is no such thing as a typical Uber driver. He also argued that converting Uber freelancers to employees would threaten the flexibility and independence that the drivers currently enjoy.

However, Shannon Liss-Riordan, who is representing Uber drivers, believes that the question of whether Uber drivers would prefer to be employees or contractors is completely irrelevant in this scenario. Wage laws are implemented to provide protection to workers and to check against business activities that enable them to gain an unfair competitive advantage.

Soaring medical malpractice claims place more strain on the NHS

Soaring medical patientWith the economy under strain at present, budget cuts have been made to many public bodies and institutions, including the NHS. With life expectancy increasing and treatment lists lengthening the burden on the health service is huge. This has been exacerbated in recent years by the soaring cost to the NHS of medical malpractice claims. It has been estimated that the service faces payments of over £15 billion to cover these costs, as more people are seeking the services of medical negligence solicitors and receiving payouts.

Some argue that an increasing number of people are taking advantage of ‘no win no fee’ arrangements and pursuing claims for minor reasons, with disregard for the economic impact this has upon the NHS. However, such reports seem to be moving focus away from the injured patient, when in fact many of these cases result in deserved payments.

The outstanding figure of NHS costs may be due to the recent spate in successful claims for patients who suffered brain damage as a result of clinical negligence at birth. Incidents such as these will demand regular financial aid to support a victim throughout life. As such these cases involve ongoing payments as well as a one off sum, contributing to the economic burden borne by the NHS. In addition, there have recently been a number of historical incidents which are now being pursued in court. A 19 year old man, for example, was recently awarded funds for lifetime care totaling £10 million by Stepping Hill hospital, after suffering brain damage there as a baby.

In addition, legal aid is widely available to all members of the general public, making it increasingly easy to pursue legal action following a claimed negligence incident. £2 billion is spent on legal aid every year in England and Wales, and our legal system is far more generous when compared with the rest of Europe. The median spend on the continent on legal aid is €2.1 per person, compared with a hefty €45.7 in England and Wales. The government recently attempted to address this issue, by proposing to reclaim almost £10 million awarded to victims of clinical negligence. It was hoped that this would dissuade families from claiming compensation in future, or only doing so in the most severe of cases. However, this would have adversely affected around 5,000 families and as such the proposal faced fierce backlash from legal experts and campaigners like Action against Medical Accidents, a patient safety charity.

Patients who have suffered significantly as a result of clinical negligence will often have their lives irreversibly changed, affecting the quality of life for themselves and their families. This will involve great financial cost and as such victims should not be deterred from pursuing valid claims. Compensation claims should not be about blame or finger-pointing and instead should be sought by those needing much-needed aid. Law firms can be an important tool in this regard. The label of ‘greedy lawyers’ has been evoked, with claims that legal firms contribute to the NHS’s rising costs. However, it is forgotten that specialist clinical negligence solicitors also act as a filter, discussing cases and their implications fully with victims before deciding whether further action is necessary.

In many cases, clinical negligence payments are essential in order for a family to experience the best possible quality of life following insufficient care. As a result of the rising costs to the NHS it is important to move away from a culture of blame and carefully examine and review cases before any payments are sought.

Lane v. Facebook: Privacy Class Action Settlement Requires Facebook to Pay $9.5 Million, but Provides No Direct Benefits to Most Plaintiffs

Lane v. Facebook: Privacy Class Action Settlement Requires Facebook to Pay $9.5 Million, but Provides No Direct Benefits to Most PlaintiffsConsumers who believe they have suffered an injury from a large corporation get excited when they hear that a class action has been filed to requite the wrong. What they often don’t realize is that if the class action is successful, it may well result in a settlement that will provide them little or even nothing in the way of direct benefits. In other words, no money.

Such will be the result if the court approves the proposed settlement in the class action brought over Facebook’s “Beacon” social advertising system. See Lane v. Facebook, Inc., N.D. Cal., Case No. 5:08-cv-038450. In fact, if the Court approves the settlement, which was proposed last Friday (September 18, 2009), over 96% of the settlement funds will actually wind up being used to pay the plaintiffs’ attorneys fees or simply being paid to a Facebook foundation to be used promote online security.

According to the complaint, the purpose of Facebook’s Beacon system was to “share news of Facebook members’ online purchases with their friends.” To make the system work, Facebook set up arrangements with certain online retailers to receive notices whenever their customers made online purchases. When a customer made a purchase, the retailer would notify Facebook electronically of the transaction. If the purchaser was a Facebook member, Facebook would generate a little Beacon popup notifying its member that it had received information about the purchase. Facebook would then create a notice of the purchase and post it on the member’s Facebook page.

For example, Sean Lane purchased a white gold and diamond eternity flower ring from Overstock.com for his wife for Christmas 2007. Shortly thereafter, a headline appeared on Sean’s Facebook page for all his “friends” to see which read: “Sean Lane bought 14k White Gold 1/5 ct Diamond Eternity Flower Ring from overstock.com.” Within two hours, he received an instant message from his wife, Shannon: “Who is this ring for?” She then informed him that Facebook has just put an item on his page saying he bought a ring. It included a link to Overstock, which noted a 51 percent discount on the ring. Sean claimed that his wife’s discovery of the purchase ruined his Christmas gifting plans.

Sean Lane thus became the lead plaintiff in this class action against Facebook. While Facebook initially acted as if it intended to contest this case, it put up very little fight — postponing its motion to dismiss in favor of settlement talks shortly after it was filed. And apparently for good reason. In its motion to dismiss, Facebook admitted that the Beacon system was live for 30 days before it “changed Beacon to require an affirmative opt-in before actions on third party affiliated websites would be fed back to the users’ personal profiles.” In other words, Facebook admitted that it didn’t get users’ permission to start gathering information about or announcing their purchases to the world.

While in its court papers and press releases Facebook denied liability, the settlement agreement calls for Facebook to make a $9.5 million payment to settle the class action. In return, Facebook and all other parties stipulated to certification of the class action. This is a benefit to Facebook, because upon final court approval of the class certification and the settlement, Facebook would be relieved from liability from any future suits regarding the allegations in the complaint — except by plaintiffs who have specifically opted-out of the settlement.

On the surface, that sounds like a pretty fair deal for Facebook. But wait ’til you hear the rest of the story. Of the $9.5 million:

Real Estate and Construction Litigation Can Affect Property Values

Construction-litigationConstruction litigation is not pleasant for anyone involved, from homeowners or condo owners to the builders and developers who are responsible for completing projects to specifications. Litigation expenses can grow quickly when post-construction problems are discovered and there is often significant disagreement regarding the extent of problems that homeowners may claim to have with construction issues.

Among the myriad issues associated with construction litigation is the impact on property values. Homeowners can see their investments suffer when news of lengthy litigation is leaked, especially in areas like New York City where construction problems can undermine the reputation of an entire condo or apartment building.  All those involved in real estate and construction litigation need an experienced and knowledgable New York real estate litigation lawyer to provide them with advice and guidance as they work to resolve their lawsuits as quickly and effectively as possible.

Property Values Affected by Real Estate and Construction Litigation

In most major cities throughout the United States, the most expensive condos and houses are located at prestigious addresses and are well-known for their amenities, their views, their locations, and their high-profile residents.   When problems develop in these high-priced homes, those who purchased the properties could see the cache of their building affected and could see the value of their investments rapidly decline.  Condo owners, who often already pay significant fees to live within their buildings, could also see costly special assessments as they pay for legal fees to litigate issues arising from construction defects.

The Washington Post recently reported on one luxury D.C. condo building that is being called a “death trap” by some owners.  Owners, who are being forced to move out for the summer as repairs take place, are suing for more than $30 million in actual and punitive damages after negotiations with the contractors and developers failed.

The problems reportedly began with a water leak, which led to the discovery that some of the bathtubs in the condo units had been installed improperly.  The walls behind the tub were opened up to try to remedy the problem and the condo board alleges that this revealed inadequate and dangerous fireproofing.

The condo developers have asserted that the condo owners are simply trying to “squeeze a wealthy real estate tycoon because of some minor construction flaws,” while some homeowners are reportedly so concerned about the safety issues in their condos that they have stopped letting their children spend the night and have put a fire extinguisher and easy-escape ladder in their rooms.

While the specifics of the dispute are going to play out in court, homeowners are complaining that news of the trouble has resulted in a reduction in property values. The fact that the homeowners are being forced to temporarily move out; concerns about the quality of repairs; and worries about special assessments adding thousands to condo fees are all possible reasons why property values of affected condo buildings may be adversely affected.

Litigation is public record, even if court transcripts are sealed (which does not always occur) and even if a confidential settlement is eventually reached. This means that while people may not know the details of how litigation or settlement plays out, news of the lawsuit can hit the news or can become well-known in real estate circles. This has serious consequences for property owners of expensive condos and houses who may hope to sell some day.

An experienced real estate litigation lawyer will work hard to resolve real estate disputes as quickly as possible in order to reduce the adverse impact of protracted litigation on property values. A qualified and experienced real estate attorney can also help homeowners and developers to argue for their preferred outcome in litigation arising from allegations of construction defects.

Attack Blog’s Salvos against Corporation and Blogger’s Use of Copyrighted Photos in Parodies of Management Deemed Non-Actionable by California District Court

Attack Blog's Salvos against Corporation and Blogger's Use of Copyrighted Photos in Parodies of Management Deemed Non-Actionable by California District CourtMany blog sites on the Internet are devoted to complaints or criticism of the practices of businesses and their executives. For example, we recently blogged about a site that critiques the practices of beauty company Mary Kay, Inc. —www.pinklighthouse.com. Another site focuses on critiques of Starbucks’ operations —starbucksgossip.typepad.com. The authors of such blogs or websites frequently worry that their posts could subject them to ruinous liability for defamation, trademark infringement (for use of the company name), or copyright infringement (for reprinting company materials).

However, a recent decision by a District Court in the Northern District of California illustrates the protections the law affords attack blogs from such claims. In 2006, Robert Delsman, Jr., a former General Electric employee, submitted a claim for disability benefits to the firm that handled such claims for GE — Sedgwick Claims Management, Inc. Sedgwick is managed by David North (CEO) and Paul Posey (COO). Delsman grew dissatisfied with Sedgwick’s handling of his case and began to express his views about Sedgwick, North and Posey in a blog and a postcard mailing campaign called “Operation Going Postcard.”

The blog, which is currently hosted at https://www.gesupplydiscrimination.com/, accused Sedgwick of wrongfully denying benefits to claimants, violating various laws, and accused Sedgwick and its “minions” (which it termed “Sedgthugs”) of having committed “Sedgcrimes.”
Delsman also took two copyrighted photos of North and Poser and superimposed them on “WANTED” postcards, some of which he “morphed” to look like pictures of Adolph Hitler and Heinrich Himmler. The postcards contained messages next to the photos such as this: “WANTED FOR HUMAN RIGHTS VIOLATIONS. . . Have you been threatened by this man or his minions? The time for change is at hand!” On the reverse side, they read: “Have you been terrorized, threatened or lied to by Sedgwick Claims Management Services? The time to act is now! Report these despicable activities to the US Department of Justice and the Attorney General in your state. Sedgwick CMS can be stopped peacefully and purposefully if enough people act now! Get informed!”

That’s strong stuff!

Sedgwick filed suit against Delsman seeking to stop his damaging campaign. It claims included copyright infringement, for his use of the photos, and the usual panoply of defamation-related claims, including libel and interference with prospective business advantage. See Sedgwick Claims Management Services, Inc. v. Delsman, U.S.D.C. Northern District of California, Case No. C 09-1468 SBA, Order Granting Defendant’s Motion to Dismiss (July 16, 2009).

There is nothing wrong with the types of claims Sedgwick brought. I have successfully brought them myself on behalf of defamed plaintiffs. However, the circumstances have to be right. The reality is that the First Amendment protects a lot of damaging speech.

9/11 Ruling and Early Case Dismissals

Civil-LitigationAccording to a recent study to be published in the Virginia Law Review, the decision taken six years ago by the Supreme Court that transformed civil litigation in the federal courts has affected the powerless the hardest. The study looked at over 4000 opinions and orders in 15 federal courts across the US.

The consequential ruling allowed judges to dismiss cases soon after they are filed. The findings from this study show that before this ruling was implemented, cases brought by individuals represented by lawyers were dismissed 42 percent of the time. After the ruling, this rate has increased to 59 percent. Rates of dismissal for corporate plaintiffs remain pretty much the same – increasing by only one percent from 37 percent to 38.

The study also shows that employment discrimination and civil rights cases have become particularly vulnerable to early dismissal.

Before this ruling, plaintiffs could simply start a lawsuit by filing a short and plain statement of their claim in a document called a complaint. After the decision, plaintiffs were required to set out concrete facts at the outset. Judges were required to scrutinize complaints closely and to dismiss ones that strike them as implausible based on their instinct or their judicial experience.

Critics of this ruling like Justice Ruth Bader Ginsburg believe that it has “messed up the federal rules” governing civil litigation. However, supporters of the ruling believe that now plaintiffs cannot gain unfair settlement advantage by simply filing a lawsuit but instead need to have a strong argument for their claim to be taken seriously.

Professor Rienert who led the study points out that the study does not even account for the suits that were never filed by lawyers who already had determined their case would not win under the new standard. “If we kick more cases out prematurely,” Professor Reinert said, “we are potentially losing cases that could play an important role not only in the lives of plaintiffs but also in the law and society.”

The study does highlight the trend that cases that are dismissed are more often ones that are brought by people rather than by companies and thus, the ruling has more or less affected the less powerful.