Tuesday, February 10, 2004

In re Janet Jackson's Breast -- Class Complaint Withdrawn

CNN reports that the nationwide class action lawsuit filed on behalf of all victims of Janet Jackson's right breast (see our post of 2/7/03) has been withdrawn. Despite an alleged outpouring of support from hundreds of parents throughout the Nation, the representative plaintiff has concluded that she will wait to see whether the network's remedial measures turn the trick.

The attorney who filed the action must be grateful that Fed. R. Civ. P. 23 was recently amended to clarify that individual notice need not be sent to all putative class members (an estimated 80 million viewers, in this case) when a class action is dismissed or settled prior to class certification.

All Americans will want to remember, meanwhile, that the statute of limitations is now running again. It was tolled during the six-day pendency of the Tennessee lawsuit under American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), but the clock is now ticking once more, by virtue of the suit's dismissal. Assuming that choice-of-law principles would dictate application of the pertinent Texas statutes of limitation under principles of lex locus delicti, litigants apparently would have anywhere between one and four years to file, depending on whether they favor the Tennessee lawsuit's defamation theory, under which Janet and Justin should pay damages to all Americans who were held up to worldwide opprobrium and ridicule, or the breach of implied contract theory, under which the networks violated an implied covenant not to air anything seamy during the Super Bowl.

A word to the wise: Don't wait until the last minute to line up your expert on wardrobe malfunction.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.