Civil Justice

Civil Justice Playbook

The Swarm 2

Some of you with way too much time on your hands may have seen the Grade Z sci-fi-monster-horror film, The Swarm. It’s about a killer bee invasion of Texas and features an all-star cast of sixties TV retreads that includes Richard Chamberlain (the sexy and serious Dr. Kildare), Fred MacMurray (the widower dad Steve Douglas in My Three Sons) and Patty Duke (playing herself and her lookalike cousin on The Patty Duke Show).

No worries if you missed it. You can tune into the equally horrific “Swarm 2,” produced by the U.S. Chamber of Commerce’s Institute for Legal Reform. The script, in the form of a white paper drafted by Mayer Brown partner Andrew J. Pincus, former deputy solicitor general and co-founder/co-director of Yale Law School’s Supreme Court Advocacy Clinic, could also be dubbed “Regulators Gone Wild.” And, to hear the Chamber tell it, it is an absolute obscenity.

According to Pincus, former GC of the U.S. Department of Commerce and Andersen Worldwide S.C., the “Swarm Enforcement Model” features a fast-breeding hive of enforcement authorities who have “effectively merged” with the plaintiffs’ bar and descended on companies in a way that has left them all but defenseless. “Punishments should be imposed only upon actual wrongdoers,” writes Pincus for the Chamber. “In the swarm litigation context, however, innocent targets of enforcement actions do not as a practical matter have an opportunity to obtain a neutral decision-maker’s assessment of their defense; they are virtually always forced to settle.”

The result, he says, is not a pretty picture (though it is worth noting that, despite hellish reviews, the original Swarm did take home an Academy Award for Best Costumes). The swarm enforcement model levies a massive, insidious tax on American businesses and consumers and undermines the way of life Patty Duke, Dr. Kildare and Steve Douglas worked so hard to model for us.

For more info on swarm enforcement and reform efforts being undertaken by the Chamber and others, see

Food Fight!!!

The Washington Legal Foundation for years has encouraged trial judges to shun class actions in which the lead plaintiff (often seen as a plant – non-edible sort – of the plaintiffs’ bar) can’t come up with a ready way of identifying his or her fellow class members. This so-called “ascertainability” issue arises regularly in food-labeling class actions in U.S. District Court for the Northern District of California, which WLF, with thinly veiled glee, dubs the “Food Court.” Now, in what could be a reprise of the food-fight scene in Animal House, the battle is moving to the Ninth U.S. Circuit Court of Appeals. And the fruit, in the form of amicus briefs, is already flying.

The appeal on the table arises from Judge Charles Breyer’s denial of class certification in Jones v. ConAgra, in which plaintiff sought to certify a class of California buyers of Hunt’s canned tomatoes labeled “100% Natural” despite containing citric acid and/or calcium chloride. In opposing cert, ConAgra argued that it sold so many different tomato products in different cans with different labels that it’s impossible to know who bought and ate the stuff. Indeed, plaintiff himself at deposition could not recall whether he bought whole tomatoes or tomato paste. The district court – gently – denied cert. With a pronounced split among the districts, the Food Court donned its toga and did its best Belushi:

Lining up opposite WLF, armed with a basketful of rotten fruit, is Public Citizen, which predicts calamity for low-purchase-price consumer class actions – a big enough industry in California that it warrants its own SIC code – if ascertainability is enforced.

WLF also has a few overripe weapons in its basket, arguing that there are other ways to preserve the rights of injured consumers without unleashing a Belushi-style food-for-all every time a hint of arsenic creeps into a yogurt. “The debate over ascertainability,” argues WLF, “really boils down to a basic question: why are consumer class actions filed?”

The answer seems clear enough to WLF: to feed the gluttonous plaintiffs’ bar. Winging an especially overripe tomato across the courtroom, WLF points out that the lead lawyer in Jones has stocked the Food Court (and other federal courts) with over 100 similar class actions.


Published May 1, 2015.