Thursday, April 10, 2008

A class action by any other name...

After pounding a keyboard for 29 years, I foolishly assumed the English language was no longer Greek to me. But a Baltimore litigation firm set me straight Wednesday. The statement it issued clearly states, “Brower Piven Announces the Filing of a Class Action Lawsuit Against Darden Restaurants, Inc.” To me, that means a party named Brower Piven had filed a class action lawsuit against Darden Restaurants, the operator of Red Lobster and Olive Garden. But, oh!, was my participle dangling.

Turns out, if you read further, that a lawsuit had been “commenced,” which doesn’t necessarily mean “filed” under the rules of language that are now applied to law-firm press releases. As we’ve learned in recent weeks, many are trumpeting lawsuits that are not really lawsuits, or at best not yet. The hope is to scare up plaintiffs—specifically shareholders who lost money on the would-be defendant’s stock—who might like to join a legal action when one is actually undertaken. It’s the equivalent of a chain declaring it’s bigger than McDonald’s, then muttering in an aside that it just hasn’t opened the 35,000 units yet.

The Brower Piven statement does not expressly say the lawsuit has yet to be filed, so let’s take the company’s word that the action has indeed been taken. But it seems the key figure of a lead plaintiff is still missing. “You may, no later than May 12, 2008, ask the Court to allow you to serve as lead plaintiff,” the release notes, explaining that someone who lost a bundle on Darden’s stock would have an edge.

Indeed, they’d lead the class, so to speak. Yet, the statement acknowledges, “no class has yet been certified in the above action.” Despite the statement’s headline, there’s no class-action suit.

Maybe there will be one, even by the time you read this. But the class-action suit that Brower Piven declared in its statement as being officially underway clearly wasn’t at the time, by the company’s own admission.

Plenty of companies may feel the pain of shareholder class-action suits during the present economic downturn. Language and the truth, it seems, are already being bent to that purpose.

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