A fair amount of attention has been given in the legal media to the Fairness in Class Action Litigation Act of 2017, H.R. 985, which has passed the House of Representatives and is currently under consideration by the Senate. Corporate groups and the defense bar have sung its praises, and the plaintiffs’ bar has railed … Continue Reading
Justice Scalia made major contributions to class action law, writing the Supreme Court’s opinions in Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend, two of the Court’s most significant class action decisions in this decade. Following President Trump’s nomination of Tenth Circuit Judge Neil M. Gorsuch to replace Justice Scalia, although it may … Continue Reading
One of the first significant class action appellate decisions of 2017 was issued this week. In Briseno v. ConAgra Foods, Inc., No. 15-55727 (9th Cir. Jan. 3, 2017), the Ninth Circuit held that Rule 23 does not require that it be “administratively feasible” to identify class members in order for a class to be certified. … Continue Reading
Today the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, addressing whether the plaintiff had standing to sue in a putative class action brought under the Fair Credit Reporting Act (“FCRA”). Like some other opinions we have seen from the eight-member Court following Justice Scalia’s death, this decision is relatively narrow in … Continue Reading
Today, the Supreme Court issued its opinion in Tyson Foods v. Bouaphakeo, addressing the use of statistical evidence in class actions. The plaintiffs’ bar will undoubtedly claim the decision as a victory because class certification was upheld. But I don’t think that’s right. The decision (a 6-2 opinion by Justice Kennedy, with Justices Thomas and … Continue Reading
As our nation and especially the legal community mourn the death of one of the most charismatic and influential Supreme Court justices in our history, one question that might be asked is how Justice Scalia’s death might impact pending class action cases. There are two pending class action cases of broad significance: Spokeo, Inc. v. … Continue Reading
Tyson Foods, Inc. v. Bouaphakeo, the third and last of the three class action cases that the U.S. Supreme Court is hearing this Fall was argued yesterday. Articles in the New York Times and USA Today have suggested that the plaintiffs are likely to win this case because Justice Kennedy’s comments suggested he would side … Continue Reading
Ascertainability has been a hot topic in class action appeals recently. The Third Circuit recently clarified its ascertainability standard (see my April 20 blog post). The committee considering potential Rule 23 amendments is exploring adding an explicit ascertainability requirement to the rule. (My fellow class action blogger Paul Karlsgodt just posted a great summary of … Continue Reading
The U.S. Supreme Court is poised to decide next Term, in Tyson Foods, Inc. v. Bouaphakeo, whether a class can be certified when many class members lack injury (see my June 16 post for more on that). The Ohio Supreme Court recently weighed in on a similar question, but treated it as a predominance issue. … Continue Reading
I’ve been delayed a bit in reporting on this, but the October 2015 term of the U.S. Supreme Court is shaping up to be a blockbuster one for class action law. Perhaps even bigger than the October 2010 term, which brought us Wal-Mart v. Dukes, Smith v. Bayer Corp. and AT&T v. Concepcion. I previously … Continue Reading
The Rule 23 Subcommittee of the federal Judicial Conference Advisory Committee on Civil Rules recently issued a report with proposed amendments to Rule 23. These are at an early stage and far from final recommendations. Here are some brief descriptions of them and some thoughts: Settlement approval criteria: The proposal is to insert into the … Continue Reading
The Third Circuit recently joined the Seventh, Eighth, and Ninth Circuits in holding that, where a Daubert challenge is made to the use of expert testimony in support of class certification, the Daubert challenge must be resolved at that stage. The Third Circuit explained that “[e]xpert testimony that is insufficiently reliable to satisfy the Daubert … Continue Reading
Ascertainability is an implied requirement for class certification, not expressly addressed in Fed. R. Civ. P. 23. While there are different formulations of the requirement, in essence it requires that there be an adequate method for ascertaining who the class members (as defined by the class definition) are, without conducting trials for that purpose. Ascertainability … Continue Reading
The Second Circuit recently addressed a panoply of class certification issues in two opinions. Both decisions ruled in favor of the plaintiffs, but will help defendants tailor their arguments in future cases. Roach v. T.L. Cannon Group, No. 13-3070-cv, 2015 U.S. App. LEXIS 2054 (2d Cir. Feb. 10, 2015) addressed whether the Supreme Court’s decision … Continue Reading
One of the “hot” issues in class actions today is whether, or to what extent, a class can be defined to include members who were not injured, and do not have standing to sue. The First Circuit recently addressed this in a 2-1 decision, concluding that “class certification is permissible even if the class includes … Continue Reading
After the Supreme Court decided Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (blog post), requiring damages to be provable on a classwide basis in order for a class to be certified under Rule 23(b)(3), class action practitioners and commentators wondered how much impact Comcast would have. The Seventh Circuit recently addressed the scope … Continue Reading
Back in February of 2012, I wrote a blog post about a California Court of Appeal decision addressing the use of statistical sampling in class actions. The California Supreme Court recently granted review and affirmed the Court of Appeal’s decision that the trial court improperly allowed the case to be tried based on statistical evidence … Continue Reading
A recent trend in insurance class actions (and class actions generally) has been for plaintiffs to bring cases seeking primarily or exclusively declaratory relief. This is because of a perception that Rule 23(b)(2) classes (seeking declaratory or injunctive relief) are easier to certify than Rule 23(b)(3) classes, which require predominance of common issues of law … Continue Reading
The Ohio Supreme Court recently issued an opinion reversing the certification of a class in a case against State Farm involving repair vs. replacement of windshields on auto claims. In Cullen v. State Farm Mutual Automobile Ins. Co., 2013 Ohio 4733 (Ohio Nov. 5, 2013), the plaintiffs alleged that State Farm had a practice of … Continue Reading
I’ve tried to make this a blog with national coverage. This post is my first venture to Alaska, which is about as far from my home in Connecticut as one can get and still be in the U.S. (except, I suppose, for Hawaii). What sparked my venture to write about a decision from Alaska is … Continue Reading
Judge Posner of the Seventh Circuit, a prolific writer of class action opinions in recent years, recently wrote a new decision addressing whether a class action with small stakes could properly be decertified. The decision includes some extensive commentary on how such a case might be resolved. Notably, this was a case where the defendant … Continue Reading
A recent decision by the D.C. Circuit has a thorough and interesting discussion of the criteria that the court applies in deciding whether or not to grant interlocutory review of a decision granting or denying class certification, under Fed. R. Civ. P. 23(f). The rule itself does not contain any such criteria, but some circuits … Continue Reading
A recent decision by the D.C. Circuit provides a detailed analysis of how the circuit courts of appeal have applied the commonality standard articulated in Wal-Mart v. Dukes. The key point I see here is that not only do plaintiffs need to identify at least one common question, the answer to which is likely … Continue Reading
On April 1, the Supreme Court issued “GVR” (grant, vacate and remand) orders in two cases, summarily instructing the courts of appeals to reconsider their prior decisions in light of the Court’s recent Comcast Corp. v. Behrend decision. The opinions that were vacated and remanded were Ross v. RBS Citizens, NA, 667 F.3d 900 (7th … Continue Reading
