CERTIFICATION
LEGAL MALPRACTICE
The Ninth Circuit ruling in Bobbitt v. Milberg, allowing a nationwide class to proceed with
legal malpractice claims against a prominent plaintiffs’ law firm under a single state’s law,
offers insight into the intersection of choice-of-law principles and Federal Rule of Civil Pro-
cedure 23(b)(3)’s predominance test, and provides a ‘‘cautionary lesson for plaintiffs and
defendants alike,’’ attorneys Jason H. Gould and Paul Glyn Williams say. One lesson: ‘‘Fail
to engage in the dirty details of a choice of law analysis at your peril.’’
Biting The Hand That Fed Them – And Winning
BYJASON H. GOULD AND PAUL GLYN WILLIAMS
Choice of law is frequently a prominent – and some-
times a pivotal – factor in a court’s analysis of
whether to grant or deny certification of a nation-
wide or multi-state class.
Whether a federal court may apply one state’s law to
the claims asserted by the class rather than the law of
each class member’s state of domicile can significantly
affect the court’s evaluation of both the predominance
and manageability tests set forth in Federal Rule of Civil
Procedure 23(b)(3).
For obvious reasons, the parties in consumer class
actions will often approach the choice of law question
from opposite angles. Class counsel, seeking certifica-
tion of a nationwide or multi-state class, will invariably
argue that the laws of a single state (or the smallest pos-
sible number of states) should apply or that, to the ex-
tent the laws of multiple states are implicated, those
laws do not materially differ.
Unsurprisingly, the party opposing class certification
generally argues, whenever possible, that the need to
apply the differing laws of multiple states causes indi-
vidual issues to predominate over common issues and
renders class treatment of the dispute unmanageable.
One prominent plaintiffs’ class action firm, having
made arguments for the application of a single state’s
law and for class certification in hundreds of cases
across the country, recently found itself on the opposite
(and losing) side of the same arguments. In Bobbitt v.
Milberg, LLP, 801 F.3d 1066 (9th Cir. 2015), petition for
cert. filed, Milberg LLP v. Laber (U.S. Dec. 8, 2015) (No.
15-734), the U.S. Court of Appeals for the Ninth Circuit
elected to reverse an Arizona federal court’s order de-
nying class certification, and paved the way for a class
of plaintiffs to pursue malpractice claims against their
former class counsel, Milberg LLP.
The opinion, which allows a nationwide class to pro-
ceed under a single state’s law, offers insight into the
intersection of choice of law principles and Federal
VOL. 17, NO. 3 FEBRUARY 12, 2016
COPYRIGHT 姝2016 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 1529-0115
Class Action
Litigation Report®
