June 2009 /$4

EARN MCLE CREDITPLUS

2009 Lawyer-to-Lawyer Referral Guide

Implementingthe AdamWalsh Actpage 32Mandatory PatentClass Actionspage 38

Injunctions forCopyrightInfringementpage12The FairProcedureDoctrinepage 18

Los Angeles lawyersR. Alexander Pilmer andMark T. Cramer examine the legalissues facing the victims of collapsed Ponzi schemes

page

Swindlers’

List

Los Angeles Lawyer

June 2009

atent holders are often victims of multiple infringers but rarely use class actions to prosecute their patentclaims collectively. Typical class actions involve a named plaintiff that seeks to represent a class of unnamed plaintiffs whose interests are aligned with those of the named plaintiff. Another type of class,however, that may achieve efficiency in patent litigation is a non-opt-out, or mandatory, issues class. Thisclass can be created to resolve issues of patent ownership, validity, enforceability, and claim construction.In a mandatory class action, class members cannot voluntarily exclude themselves from the class as defined in thecourt’s class certification order. A rarely used feature of Rule 23 of the Federal Rules of Civil Procedure allows forcertification of a mandatory defendant class action. In this suit, a named defendant is compelled, almost invariablyagainst its wishes, to represent a class of unnamed defendants that share one or more common issues appropriatefor joint adjudication. Mandatory defendant class actions are a potent tool to resolve common issues involving mul-tiple defendants.The drafters of Rule 23 intended the rule to enable those with small claims to achieve relief even if their individ-ual claims are too small to be viable. Another purpose of Rule 23 is to “achieve economies of time, effort, and expenseand promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bring-ing about other undesirable results.”

Rule 23(a) establishes four prerequisites to maintaining a class action: 1) thenumber of people or entities in the class should be too numerous to permit their joinder, 2) members of the class shouldshare common questions of law or fact, 3) the “claims or defenses of the representative parties are typical of the claimsor defenses of the class,” and 4) the “representative parties will fairly and adequately protect the interest of the class.”Of these prerequisites, the second is central to the creation of a common issue class, but the other three must also

REQUIRED

CLASS

IN ORDER TO MAINTAIN CLASS ACTIONS AGAINST INFRINGERS, PLAINTIFFS NEED TO MEET THE FOURPREREQUISITES OF FEDERAL RULE 23

by MARK ANCHOR ALBERT

Mark Anchor Albert is a business litigator and appellate lawyer in Los Angeles.

K E N C O R R A L