Monday, June 29, 2009

Bluetooth Reply Brief

This morning we filed this reply brief in the Bluetooth Headset Products Liability Litigation. The hearing is July 6, a week from today.

If you read our first brief, you may recall that we argued that the new warnings mandated by the settlement were not materially different than those that class members already had when they bought their headset. (I was personally impressed that objectors held on to their thin-paper manuals and knew where to find them.) Much to my surprise, plaintiffs agreed, but claimed that the warnings were that good because of the lawsuit--a surprising concession that the settlement isn't creating any prospective relief.

And now some inside baseball: this case possibly presents an interesting choice-of-law question. California state law recognizes the "catalyst" theory for recovery of attorneys' fees. As such, Erie demands that a California-state-law case apply the catalyst theory, though that theory is rejected by federal common law in cases such as Buckhannon. But can one apply that substantive California law in fifty-state class action? Shutts would say no, but there is a D.N.J. decision out there, Chin v. DaimlerChrysler, that says yes--but without mentioning Shutts.

In this case, it's moot: the plaintiffs don't qualify for catalyst theory fees even under California law, and didn't even ask for recovery based on a catalyst theory. So I wouldn't expect the judge to reach it, but there's a law review article out there for someone ambitious.

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