Metropolitan News-Enterprise


Tuesday, February 8, 2011


Page 3


Lawmaker Introduces Bill to Allow Defense to Appeal Class Action Rulings


By a MetNews Staff Writer


Assemblyman Brian Nestande, R-Palm Desert, yesterday introduced Assembly Bill 271, a measure that would allow defendants in class actions to appeal orders granting class certification.

“This measure will level the playing field for class action defendants and bring California into line with other states and with federal law,” the Riverside County lawmaker said in a statement. “It will also help California’s economy recover by making the state a more attractive place to do business and thus bring much needed jobs to the state.”

Nestande will carry the bill for the Civil Justice Association of California, which represents businesses.

The president of CJAC, Kimberly Stone, said in a release:

“Ranking after ranking shows that California has one of the worst legal climates in the country and that’s a major reason businesses are reluctant to locate or expand operations here. This bill is a long-overdue measure that would simply bring balance and fairness to California class action law by giving defendants the same appeal rights that plaintiffs already enjoy.”

Niall McCarthy, president-elect of the statewide trial lawyers organization Consumer Attorneys of California, said the bill would not improve the economy and would not make the system fairer, but would stack the deck against plaintiffs whose individual claims were too small to bring other than as class actions.

McCarthy—a principal of the Northern California firm of Cotchett, Pitre & McCarthy, which specializes in class actions and other complex litigation—explained that defendants in California can move to decertify a class at any time “right up until a jury verdict.”

Unlike defendants, who can defend on the merits, seek to decertify a class, or appeal from a final judgment, plaintiffs need a right of immediate appeal because their cases are effectively over if class certification is denied, McCarthy said.

The Nestande bill would create “a two-year delay in every case in which a class is certified,” as defendants would routinely appeal. That delay, he added, would come after years of evidence-gathering that plaintiffs’ lawyers must engage in before they can file suit and move for class certification.

The goal of the legislation, he told the MetNews, is to make the litigation “as expensive as humanly possible so the class and its attorneys will go away.”

He also noted that defense appeals of class certification under Rule 23 of the Federal Rules of Civil Procedure are interlocutory and discretionary, whereas AB 271 would allow such appeals as a matter of right.

“Federal law is nothing at all like this bill,” he said.


Copyright 2011, Metropolitan News Company