As most readers of this blog are likely aware, Hobby Lobby is in the news again.

Hobby Lobby is a privately-held corporation that runs a chain of arts and crafts stores.  Its shareholders consist of members of the Green family, who also manage the corporation on a day to day basis.  The Greens are religious Christians, and Hobby Lobby’s statement of purpose declares that the company will be run in accordance with biblical principles.

When Hobby Lobby last made the news, it had just won its case in the Supreme Court, Burwell v. Hobby Lobby Stores.  The Greens argued, successfully, that the Affordable Care Act impermissibly burdened their religious beliefs by requiring that Hobby Lobby provide birth control coverage to its employees.  The difficulty with this argument, from a corporate law perspective, is that it draws no distinction between burdens placed on Greens in their personal capacities, and burdens placed on the Hobby Lobby corporation itself.  (The Supreme Court opinion did little to clarify the matter, which is why I use it in my class as part of my introduction to business law).

Now the company making headlines again, for smuggling ancient artifacts out of Iraq.

Cuneiform

[More under the jump]

Continue Reading Corporate Trompe L’oeil

Bernard Sharfman has written another interesting article on shareholder empowerment. I wish I had read A Private Ordering Defense of a Company’s Right to Use Dual Class Share Structures in IPOs before I discussed the Snap IPO last semester in business associations.

The abstract is below:

The shareholder empowerment movement (movement) has renewed its effort to eliminate, restrict or at the very least discourage the use of dual class share structures in initial public offerings (IPOs). This renewed effort was triggered by the recent Snap Inc. IPO that utilized non-voting stock. Such advocacy, if successful, would not be trivial, as many of our most valuable and dynamic companies, including Alphabet (Google) and Facebook, have gone public by offering shares with unequal voting rights.

This Article utilizes Zohar Goshen and Richard Squire’s “principal-cost theory” to argue that the use of the dual class share structure in IPOs is a value enhancing result of the bargaining that takes place in the private ordering of corporate governance arrangements, making the movement’s renewed advocacy unwarranted.

As he has concluded:

It is important to understand that while excellent arguments can be made that the private ordering of dual class share structures must incorporate certain provisions, such as sunset provisions, it is an overreach for academics and shareholder activists to dictate to sophisticated capital market participants, the ones who actually take the financial risk of investing in IPOs, including those with dual class share structures, how to structure corporate governance arrangements. Obviously, all the sophisticated players in the capital markets who participate in an IPO with dual class shares can read the latest academic articles on dual class share structures, including the excellent new article by Lucian Bebchuk and Kobi Kastiel, and incorporate that information in the bargaining process without being dictated to by parties who are not involved in the process. If, as a result of this bargaining, the dual class share structure has no sunset provision and perhaps even no voting rights in the shares offered, then we must conclude that these terms were what the parties required in order to get the deal done, with the risks of the structure being well understood.… capital markets paternalism is not required when it comes to IPOs with dual class share structures.

Please be sure to share your comments with Bernard below.

A few weeks ago, Stephen Bainbridge asked about the benefits of the social media site LinkedIN. His question caused me to revisit the costs/benefits of social media. Below I reflect on the social media websites I use.

With so many professors getting in trouble on social media – see, e.g., here, here, here, here, and here – it may make sense to ask if any of the websites are worth the risk. As long as you are wise when you post, and assume a post will be seen in the worst possible light, I think social media can be worth using. 

Facebook. 

  • Benefits. Facebook has a broader network of people than any of the other social media sites I use. My parents are on Facebook, as is my wife’s grandmother and great aunt, as are my peers, as are my much younger cousins. Facebook also has a wide range of user generated content — photos, links, short & long posts, groups, etc. The “Friends in ___ City” feature has allowed me to catch up with old acquaintances when traveling for conferences or family trips. Just a few weeks ago, I visited with two of my old coaches for the first time since high school. Neither of their e-mails were online, and I have only kept up with them via Facebook. 
  • Costs. For me, Facebook is the biggest time waster among the various social media sites. Recently, I deactivated my Facebook account for the time being. I will probably be back at some point. The benefits of Facebook could probably be achieved in about 30 minutes a week, but until I learn to limit my use to around that amount of time, I will likely continue to deactivate for periods of time to cut back usage.
  • Use for Work. I don’t allow current students to “friend” me, given the more personal nature of Facebook, but I have allowed alums to connect, which has been rewarding. I follow my university and my alma maters on Facebook. I am Facebook friends with a handful of professional contacts.

Twitter.

  • Benefits. I have kept Twitter almost entirely professional; I rarely tweet about my family or my personal hobbies. As such, for me, the benefits of Twitter are captured in the “Use for Work” section below.
  • Costs. Twitter can also eat time, though unlike Facebook,  I am rarely tempted to spend long amounts of time on Twitter. Twitter doesn’t allow for very nuanced debate and your posts can be taken the wrong way. Professor Eric Posner recently posted some harsh comments about Twitter; his comments have a kernel of truth. That said, I do think he is overly negative. For example, I think Twitter can actually be better than newspapers for some information. With Twitter you get the news directly from the source, and the news reaches you more quickly and with fewer words. Also, newspapers are unlikely to cover niche topics, like the latest happenings in social enterprise law. 
  • Use for Work. I maintain two hashtags – #MGT2410 and #MGT6940 – for news tweets related to my two primary courses. I allow current students to follow me, though I do not require it nor do I post anything necessary for my classes. I follow mostly professional contacts and professional organizations on Twitter. Given the accounts that I follow, Twitter can be a relatively good place to get quick news. Finally, I have found that a number of C-level executives, lawyers, and well-known academics are easier to engage via Twitter than any other medium.

LinkedIN.

  • Benefits. In thinking about Steven Bainbridge’s question about LinkedIN, I had a difficult time thinking of many significant benefits. I see LinkedIN as a place to connect with professional contacts that you want to share less information than you share on Facebook. I rarely log into LinkedIN, but I haven’t deleted my account either, as the costs of being on the website are incredibly low. 
  • Costs. LinkedIN takes the least amount of my time among the various social media sites. I spend 0 to 30 minutes on LinkedIN most months. There does appear to be a fair bit of spam in the various work groups I have joined, but it is pretty easy to ignore by unsubscribing to group e-mail updates. 
  • Use for Work. LinkedIN seems to be my MBA students’ preferred method of connecting, and the site is worthwhile just to stay connected to them. I belong to a number of work related LinkedIN groups, but, as mentioned, most have been overtaken by spammers, so I almost never read the shared content. 

Strava.

  • Benefits. Strava is a social media website for runners, cyclists, and swimmers. For me, Strava’s main purpose is as an online place to log my runs without annoying my friends on other social media websites. On Strava, I only have about 30 friends, all of whom are committed to fitness. The website is an incredibly good accountability tool, as those friends can see if you have been slacking for a few days, and some of them will even call you out. It is also nice to have a few people notice when you have a good race or workout. You can also borrow workout ideas from posts. 
  • Costs. I don’t love that people can tell when you are out of town, based on the location of your runs, but with only 30 friends and the privacy settings set tight as to other users, this isn’t a huge issue. Strava doesn’t take much time. The routes automatically upload from my Garmin and the newsfeed isn’t designed to keep you engaged with it. 
  • Use for Work. I don’t really use Strava for work other than staying in touch with a couple attorney runner friends. 

Instagram, Pinterest, Etc. I never got into Instagram, Pinterest, or any other social media websites. Instagram does seem to be quite popular among my somewhat younger friends and students, but it also appears to be a giant time waster, so I am glad I never got hooked.

Feel free to share any comments or additional thoughts. 

Tomasz Piotr Wisniewski, Liafisu Sina Yekini, and Ayman M. A. Omar posted “Psychopathic Traits of Corporate Leadership as Predictors of Future Stock Returns” on SSRN on June 13, 2017. You can find their abstract here. 

I was particularly interested in how the authors measured psychopathy. Here is a relevant excerpt:

Using UK data, we construct a number of corporate psychopathy indicators and link them to the returns that ensue over the next 250 trading days – a period roughly equivalent to one calendar year.

Even if clear guidance exists on how to diagnose psychopathic personality disorder in humans (Hare 1991, 2003), the practical difficulty is that executives will be generally unwilling to participate in time consuming surveys, particularly those that are likely to expose the dark side of their character. We choose to follow a more pragmatic approach and, similarly to Chatterjee and Hambrick (2007), collect information in an unobtrusive way by going through company-related archives and data. Firstly, using automated content analysis we assess to what extent the language in annual report narratives is symptomatic of psychopathy. This is done by counting the frequency of words that are aggressive, characteristic of speakers who are self-absorbed and who have the tendency to assign blame to others. Secondly, we look at likely correlates of managerial integrity. More specifically, we try to identify companies whose auditors have expressed reservations in the Emphasis of Matter section of the annual report and those that have experienced a publicized Financial Reporting Council (FRC) intervention. Thirdly, we consider a measure that derives from the observation that psychopaths require stronger external stimuli to experience emotions and, therefore, have the tendency to take high risks. We assume that excessive exposure in a corporation will result in a high degree of idiosyncratic risk. This type of risk, which is entirely company-specific and unrelated to the broader economy, is measured in our empirical inquiry. Lastly, we construct a variable to capture the reluctance of a company to donate to charitable causes.

Our empirical investigation documents a negative association between the presence of managerial psychopathic traits and future return on common equity.

Please forgive the self-promotion, but the Columbia Law School Blue Sky Blog recently published a blog post on my recent article with Professor Julie Hill, The Duty of Care of Bank Directors and Officers, 65 Ala. L. Rev. 965 (2017).

The blog post is reprinted below, and the link to the article is here:  https://ssrn.com/abstract=2965023

 

The 2008 financial crisis was catastrophic for the U.S. banking industry. Between 2007 and 2014, 510 banks failed. Another 700-plus banks received some type of federal monetary assistance. Unsurprisingly, this led to calls to hold bank directors and officers legally accountable for harm they may have caused.

One federal regulator with the power to hold directors and officers of failed banks financially responsible is the Federal Deposit Insurance Corporation (FDIC). The FDIC acts as a receiver for failed banks. It has authority to sue directors and officers for losses they caused to failed banks and has been aggressive in doing so.  Yet even as the FDIC brings director and officer suits, the standard of liability for breach of the duty of care in the banking setting is misunderstood.

Duty of care liability in non-bank corporations is typically governed by state statute and common law. While the law differs somewhat from state to state, the standard of liability often varies depending upon the specific claim. If the shareholders (on behalf of the corporation) allege that the directors and officers made poor substantive decisions, the directors and officers are largely insulated from liability by the business judgment rule. If, however, the shareholders allege that the directors and officers exercised inadequate oversight or were not sufficiently informed when making a decision, the directors and officers are subject to a greater risk of liability.

In contrast, duty of care liability in the banking setting is governed partly by a federal statute—the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA)—that imposes liability for “gross negligence [or] similar conduct . . . that demonstrates a greater disregard of a duty of care.” In 1997, the United States Supreme Court in Atherton v. FDIC held that FIRREA allows the FDIC to sue directors and officers of failed banks under either a federal gross negligence standard or any applicable state law standard that imposes liability for less culpable conduct. Perhaps because FIRREA uses “gross negligence” language, nearly all the commentary on bank director and officer liability focuses on whether the standard for bankers is negligence or gross negligence. Regulatory guidance and academic commentary both fail to acknowledge and incorporate a key insight from corporate law: The standard of liability for breach of the duty of care often varies depending upon the context of the particular claim. 

Just as duty of care actions under state corporate law arise in different contexts, so too do duty of care actions in the banking setting. Some arise from the alleged failure of bankers to oversee the bank, while others arise from allegedly poor banker decisions.

Because the standard of liability can vary depending upon the context, it is often a misleading oversimplification to frame the banker liability debate in any particular jurisdiction as a binary choice between negligence and gross negligence. Indeed, the standard of liability can vary by claim within a single state. For example, courts often review claims arising in the oversight context more rigorously than they would review claims that the directors or officers made a poor substantive decision. Similarly, courts may review claims about deficiencies in the decision-making process more rigorously than claims that the decision itself was substantively deficient. Moreover, the standard for any particular claim may require something other than a negligence or gross negligence showing.

We believe that because duty of care liability is more nuanced than negligence versus gross negligence, the application of FIRREA and Atherton to duty of care claims in the banking setting is more complicated than commentators have appreciated.

Finally, because duty of care claims arise in different contexts, and because standards of liability for such claims are defined by state law, FDIC guidelines that ignore context and suggest a nationwide standard of liability are inaccurate. The guidelines are also inconsistent with the FDIC’s practice of aggressively pursuing state law claims. We recommend that the FDIC update its guidelines to help bankers understand this complexity and to allow them to accurately gauge their risk of exposure under the FDIC’s current litigation practices.

Our article integrates the academic literature on the duty of care in the general corporate setting with the literature on the duty of care in the banking setting. It shows that, just as in corporate law, in banking the context of the claim matters.  This moves the discussion beyond the simplistic negligence versus gross negligence debate that pervades discussions of bankers’ duty of care.

 

With a Fourth of July post, I was inclined to write something patriotic and connected with our great nation and to law schools generally. As an unabashed and unapologetic fan of the Hamilton: An American Musical, a couple of analogies from this brilliant production seemed appropriate to convey my thoughts on law school and leaving a legacy.  

First, I think most of us who are fortunate enough to serve as law professors recognize the great gift we have to pursue our passion and to be part of educating the next generation of people who understand the rule of law and have the skills to protect the rights of individuals and groups. This is especially needed for those who are marginalized or under represented and thus less likely to be able to enforce their rights without the help of our legal system.  This is an incredible legacy in America, set in motion by some our nation’s founders.  

Like John Adams defending British soldiers and Alexander Hamilton defending Loyalists after the war, lawyers (and law professors) do not need to compromise their own views to embrace the ideals they seek to uphold. We can vigorously maintain our personal views, while defending the rights of others to have their views.  As law professors, I think we generally do value and defend the rights of others who have differing views, but I also think we can do a better job ensuring that is the case (and that others know it).

To be effective, law professors must be engaged with their work, with their institution, and their students. This means, to me, engaging in scholarship, in some way, and sharing that work with the world.  As Alexander Hamilton tells Aaron Burr in The Room Where It Happens: 

“When you got skin in the game, you stay in the game. But you don’t get a win unless you play in the game. Oh, you get love for it. You get hate for it. You get nothing if you…Wait for it, wait for it, wait!”

We need to part of the program. We need to engage and share our ideas. This doesn’t mean being overtly political, and it doesn’t necessarily mean being abrasive. But we must be invested in what we do, and we must be invested in how we do it. The passive teacher and scholar will likely have passive students, and we need to be educating lawyers to get in, get dirty, and keep learning.  We can’t just tell them. To some degree we have to be the ones to show them how.

Second, as law professors who are committed to their profession, I think we need to be thinking about who we want to be as professors, including our desires for our legacy, early in our careers.  We need to think about what we want to be like as tenured professors before were are tenured.  And we need to think about where we hope to get as professionals, as teachers, and as scholars.  I think a lot faculty members (law and otherwise) get to a point where they aren’t sure what it will mean to move on or how, and that makes it hard to stay engaged or focused because you don’t have an idea of the end game. And that is linked, in part, to feeling like their legacy is incomplete.  That is understandable.   

Alexander Hamilton says, in the song, The World Was Wide Enough Legacy: 

“What is a legacy? It’s planting seeds in a garden you never get to see.”

And it’s true. We rarely, if ever, will get to see our legacy, but we can know what we are trying to grow.  We each create our own legacy by the seeds we choose to plant.  And as professors, we plant those seeds in our students.  They go out and hopefully grow and flourish. And as part of a profession, those seeds are spread wider than just our students, as those new lawyers go out and interact with and work to protect others.  We must think carefully about what we are teaching about the profession that we helping to shape, whether or not we ever see it fully grown.  The world evolves and so must we, so that the seeds we plant, our legacy, is one that is worthy of this great, though greatly flawed, nation that got its start 241 years ago.  

As we celebrate the Fourth of July, let us celebrate the past while at the same time we think about the future.  This goes for both our teaching and for our nation overall.  Wishing you a happy and safe Fourth. 

The Section on Women in Legal Education (WILE) of the Association of American Law Schools (AALS) recently announced that our business law colleague from Boston University, Tamar Frankel, is this year’s recipient of the Ruth Bader Ginsburg Lifetime Achievement Award.  Kerri Stone, this year’s chair of the section, wrote the following in her message to section members on June 23:

Professor Frankel, a true pioneer and mentor to so many, will be honored at the Section’s annual luncheon on January 6, 2018 in San Diego. We hope to see all of you there as we reconvene, reconnect, and celebrate Professor Frankel.

I will add (briefly) that I have been personally mentored and supported by Tamar over the years (as I know many law faculty members have been).  She has acknowledged receipt of my reprints (a rare thing) with a pithy comment that indicates she actually read the piece (an even rarer thing).  Her work on money managers and trust law has inspired and founded the scholarship of many (including my own work).  Her comments offered at academic conferences over the years have been insightful and constructive.  She has climbed mountains in her life and career that were tall and difficult to ascend.  I could go on with personal stories, but I will stop here.  It’s all gilding an already beautiful lily.  But I will also say that I find it refreshing to see a business law scholar-teacher recognized with one of these general awards–a somewhat rare thing, in my experience.

I will be attending the luncheon in January to honor Tamar.  I hope that many of you also will plan to be there.  Information about the 2018 AALS Annual Meeting is available here.   I will write about some other interesting programs scheduled for the Annual Meeting in the coming months.

On Monday, the Supreme Court decided Public Employees’ Retirement System v. ANZ Securities Inc.  The case resolved a critical issue of class action administration that was left hanging after the Supreme Court dismissed an earlier-granted petition in a similar case (see my earlier posts on the subject).

In American Pipe & Construction Co. v. Utah, 414 U. S. 538 (1974), the Supreme Court held that the filing of a class action tolls the statute of limitations for all members of the putative class.  That way, if individual members wish to opt out and pursue their claims individually, or if the class is not certified and they are forced to file their own complaints, they are free to do so without fear of a limitations period that may have expired years earlier.  The rule has long been thought of as a practical necessity for the administration of class actions.  After all, class actions change over time – claims are dropped, class definitions are narrowed, class counsel may pursue remedies and settlements that don’t satisfy all class members.  If individual class members were not assured that they could file their own claims if any of these events occurred, they might be forced to file prophylactic complaints in advance, thus burdening the court with unnecessary filings. 

Following American Pipe, a number of questions arose regarding its precise contours (when does the tolling period expire (Taylor v. UPS, Inc., 554 F.3d 510 (5th Cir. 2008); Smith v. Pennington, 352 F.3d 884, 893 (4th Cir. 2003)); which claims are tolled (Cullen v. Margiotta, 811 F.2d 698 (2d Cir. 1987)); whether subsequent class actions, as well as subsequent individual actions, are tolled (Yang v. Odom, 392 F.3d 97 (3d Cir. 2004))), but the basic contours remained reasonably certain. 

Until recently.  In a pair of cases, the Supreme Court drew sharp distinctions between statutes of limitations, which are intended to force a plaintiff to act promptly once his claim accrues, and statutes of repose, which are intended to assure the defendant of “peace” once a certain time has passed since the original harmful conduct.  See CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014); Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991).  This raised the question: was it possible that American Pipe applied only to limitations periods, and not repose periods?

Enter ANZ.  In the wake of Lehman’s bankruptcy, certain purchasers of Lehman bonds filed a class action lawsuit against the underwriters under Section 11 of the Securities Act.  Section 11 contains a limitations period – providing that an “action” may be “brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence” – and a repose period, prohibiting any “such action” if “brought … more than three years” after the offering.  15 U.S.C. §77m.  In the case of ANZ, after the filing, the action lay dormant for years.  One class member, CalPERS – frustrated by the delay – filed its own action, which was eventually consolidated into the main action.  When a settlement was proposed, CalPERS chose to opt out to pursue its claims individually, but its complaint was dismissed on the grounds that the CalPERS complaint had been filed after the expiration of the repose period.

The Supreme Court agreed.  Writing for a 5-4 Court, Justice Kennedy concluded that courts have no power to toll repose periods; therefore, even after the class action complaint was filed, the repose period continued to run.  Three years after the offering, then, no individuals could file their own complaints, regardless of their concerns about the conduct of the class action.

Although the logic of the opinion would seem to apply to all statutes of repose, Justice Kennedy clearly tried to keep his options open.  He emphasized that some repose periods might be drafted in a manner that suggests courts have greater equitable power; presumably, then, there’s room to make an argument that American Pipe tolling could apply to some repose periods under particular statutes – though, most have assumed, not ones related to securities claims (i.e., not the 5-year repose period applicable to claims under Section 10(b)).

Writing in dissent, Justice Ginsburg argued that by filing the class action complaint, the original plaintiffs commenced the action for all members of the asserted class, and that the statute of repose was therefore satisfied for all of them, regardless of whether they chose to litigate individually. 

(For more description of the case, see this post at The D&O Diary.)

There are a couple of things about this decision that leap out at me.

Most obviously, this is a wildly impractical opinion that undermines the utility of American Pipe.  Three years is nothing in securities litigation time; assume there’s some delay before a complaint gets filed, then there’s maybe 3 months or more before the lead plaintiff is selected, then possibly 60 days before an amended complaint is filed, another 60 days before the motion to dismiss is filed – you’re looking at potentially more than a year before the case even makes it past the motion to dismiss.  Class members simply will not have enough information before the 3-year repose period expires to make an intelligent decision about whether to opt out (either because they’re unsatisfied with the lead counsel’s performance, or because they’re unsatisfied with a settlement, or because class certification is denied).  That means their only option is a “protective” filing, opting out in advance, just to preserve their rights.  Justice Kennedy pooh-poohed the possibility, pointing out that investors have not filed protective complaints en masse so far, but that’s because the state of the law was uncertain and holdings refusing to toll were relatively new.  Courts can now expect to be flooded with protective filings by absent institutional class members who feel they must opt out in order to fulfill their fiduciary duties to their funds.  See, e.g., David Freeman Engstrom & Jonah B. Gelbach, American Pipe Tolling, Statutes of Repose, and Protective Filings: An Empirical Study, 69 Stan. L. Rev. Online 92 (2017).

Moreover, any investors who fail to opt out are now trapped if they are unhappy with the conduct of litigation.  They could object, presumably, but there’s a really wide space between what an individual member might believe is in their own interest, and lead counsel performance that’s so deficient as to warrant replacement.  A critical mechanism for disciplining class counsel – often accused of selling out classes for easy attorneys fees – will be lost.

By the way, when a case is settled and notice is sent to class members, must it warn them that opting out is no longer an option due to expiration of the repose period?

I also wonder what this ruling will do to the Rule 23 inquiry itself.  In determining whether a class should be certified, courts must evaluate whether a class action is “superior” to individual actions.  If the repose period has expired, does that mean the class action is always superior, regardless of what other defects there are in class cohesion?

Additionally, what happens if the court wants to create subclasses with new representatives, or if the current class representative is inadequate and a new one must be substituted?  Often, these administrative matters are accomplished by motions to intervene – but American Pipe itself suggests that intervention by an absent class member counts as a new complaint, permissible after the expiration of the limitations period only with tolling.  What about lead plaintiff selection under the PSLRA – can that happen after the repose period expires?  (These are basically questions I raised when the Court first granted cert, by the way).

But aside from this parade of horribles, here’s what leaps out at me on a gut level: 

The rule adopted by the majority has really nothing to recommend it practically; indeed, the defendants’ brief offers virtually no policy reasons to support their argument.  The plaintiffs, of course, argued that there was simply no injustice here: all of the purposes of a statute of repose are fulfilled when the class action complaint is filed.  At that time, the defendants know of the claims against them, and the identities of the plaintiffs; it hardly matters, for repose purposes, that particular class members might later choose to litigate individually.

The Court disagreed.  It held that even though defendants may formally be placed on notice of the class claims, there is a practical difference between litigating a class action, and litigating individual actions as follow-ons; that difference, said the Court, increases the defendants’ burdens and potentially their liability.

Which is indisputably true.  But recall the cases involving class-action waivers in the context of arbitration agreements.  Frequently, plaintiffs argue that such waivers make it impossible, as a practical matter, for them to bring their substantive claims, and therefore the waivers act as a de facto – and prohibited – waiver of certain federal rights.  See, e.g., Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).  Yet in that context, the Court has been obtrusively unsympathetic; the class action device, the Court has held, is merely a procedural mechanism for aggregating claims, and there is no judicially-cognizable difference between claims brought individually and claims brought as a class.  

Obviously, these are different situations, but it seems to me that the Court is somewhat inconsistent about when it will recognize the practical realities of how the class action form affects the underlying claim, and when it will not.  And the Court is far more sympathetic to practical complaints that originate from the defense side than from the plaintiffs’ side.