Bobbitt v. Milberg LLP, 091015 FED9, 13-15812

Docket Nº:13-15812
Opinion Judge:OWENS, CIRCUIT JUDGE
Party Name:Philip Bobbitt, individually and on behalf of all others similarly situated; John J. Sampson; John Hall; Brenda Hall, Plaintiffs, v. Milberg LLP; Melvyn I. Weiss; Michael C. Spencer; Janine Lee Pollack; Lee A. Weiss; Brian C. Ker; Uitz & Associates; Ronald A. Uitz; Lustigman Firm; Sheldon S. Lustigman; Andre B. Lustigman; Gabroy Rollman & Bosse PC;
Attorney:Lawrence A. Kasten (argued), Robert H. McKirgan, and William G. Voit, Lewis Roca Rothberber LLP, Phoenix, Arizona; Guy M. Hohmann and Ryan T. Shelton, Hohmann, Taube & Summers LLP, Austin, Texas; R. James George, Jr. and Gary L. Lewis, George, Brothers, Kincaid & Horton, LLP, Austin, Texas, for I...
Judge Panel:Before: Sidney R. Thomas, Chief Judge, John B. Owens, Circuit Judge, and Anthony J. Battaglia, District Judge.
Case Date:September 10, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Philip Bobbitt, individually and on behalf of all others similarly situated; John J. Sampson; John Hall; Brenda Hall, Plaintiffs,

and

Lance Laber, Intervenor-Plaintiff-Appellant,

v.

Milberg LLP; Melvyn I. Weiss; Michael C. Spencer; Janine Lee Pollack; Lee A. Weiss; Brian C. Ker; Uitz & Associates; Ronald A. Uitz; Lustigman Firm; Sheldon S. Lustigman; Andre B. Lustigman; Gabroy Rollman & Bosse PC; John Gabroy; Ronald M. Lehman, Defendants-Appellees.

No. 13-15812

United States Court of Appeals, Ninth Circuit

September 10, 2015

Argued and Submitted June 25, 2015 -San Francisco, California

Appeal from the United States District Court for the District of Arizona Frank R. Zapata, Senior District Judge, Presiding D.C. No. 4:09-cv-00629-FRZ.

Lawrence A. Kasten (argued), Robert H. McKirgan, and William G. Voit, Lewis Roca Rothberber LLP, Phoenix, Arizona; Guy M. Hohmann and Ryan T. Shelton, Hohmann, Taube & Summers LLP, Austin, Texas; R. James George, Jr. and Gary L. Lewis, George, Brothers, Kincaid & Horton, LLP, Austin, Texas, for Intervenor-Plaintiff-Appellant.

Douglas J. Pepe (argued), Gregory P. Joseph, Honey L. Kober, and Jeffrey H. Zaiger, Joseph Hage Aaronson LLC, New York, New York; Peter Akmajian, Ed Moomjian II, and Michele G. Thompson, Udall Law Firm LLP, Tucson, Arizona, for Defendants-Appellees.

Before: Sidney R. Thomas, Chief Judge, John B. Owens, Circuit Judge, and Anthony J. Battaglia, [*] District Judge.

SUMMARY[**]

Class Certification / Choice of Law

The panel vacated the district court's order denying the motion for class certification brought by named plaintiffs Philip Bobbitt and John Sampson in their malpractice lawsuit against Milberg LLP and various other law firms and lawyers.

The panel held that the district court properly applied the choice-of-law rules of the forum state Arizona. The panel noted that Arizona courts apply the Restatement (Second) of Conflict of Laws (1971) to determine the controlling law for multistate torts.

The panel held that the district court erred in holding that the law of each class member's home state governed his or her individual claim, rather than the law of Arizona where the alleged malpractice occurred. The panel held that the district court abused its discretion by basing its class certification decision on an erroneous view of the proper choice of law, and remanded for further proceedings.

OPINION

OWENS, CIRCUIT JUDGE

Intervenor-plaintiff-appellant Lance Laber appeals from the district court's denial of the motion for class certification brought by named plaintiffs Philip Bobbitt and John Sampson in their malpractice lawsuit against defendant-appellee Milberg LLP and various other law firms and lawyers (collectively "Milberg"). Because the district court erred in holding that the law of each class member's home state governed his or her individual claim, rather than the law of Arizona where the alleged malpractice occurred, we vacate the district court's order and remand this case for further proceedings.

I. FACTS

A. The VALIC litigation

In 2001, Milberg, a national law firm specializing in class actions, filed a lawsuit in Arizona district court against Variable Annuity Life Insurance Company, Inc. ("VALIC"), for alleged securities law violations. In January 2004, the district court certified a class of plaintiffs, a significant accomplishment in any class action litigation.1

But things went downhill for Milberg and the class. Milberg failed to meet certain mandatory disclosure deadlines, and in August 2004, the district court struck the plaintiffs' expert testimony and witness list as a sanction. Milberg could not prove class-wide damages without witnesses, so the court vacated class certification. And, because Milberg could not, without witnesses, establish causation and damages for the named plaintiffs, the court entered judgment for VALIC, ending the case. Milberg did not alert any of the absent class members to the certification or decertification of the class or the dismissal of the action, nor did it otherwise attempt to preserve the class's claims.2

B. The Milberg Litigation

Plaintiffs in this appeal sued Milberg for malpractice for failing to meet the discovery requirements in the VALIC class action. Plaintiffs named as...

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