Archives: Class Certification Standards

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Supreme Court’s Vacate Orders Suggest Breadth of New Comcast v. Behrend Opinion

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

Comcast v. Behrend Supreme Court Opinion: Raising The Bar for Plaintiffs in Class Actions

Today the U.S. Supreme Court decided Comcast Corp. v. Behrend, No. 11-864 (slip opinion), which presented the question of whether a class action can be certified in federal court without admissible evidence that damages are susceptible to proof on a class-wide basis.  The Court’s answer was that, under Rule 23(b)(3)’s predominance requirement, the plaintiffs had … Continue Reading

Partial Class Certification and Bifurcation: Florida Supreme Court Addresses Preclusive Effect of Class Trial in Engle Litigation

Some courts have experimented with a partial class certification procedure whereby a class is certified to decide certain common issues on liability, and then any class member who wishes to pursue their own claim has to file their own individual lawsuit and prove the remainder of their case on liability and damages.  One of the … Continue Reading

Amgen v. Connecticut Retirement Plans Supreme Court Opinion: Potential Impact Beyond the Securities Realm

Earlier this week, the U.S. Supreme Court issued its opinion in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, No. 11-1085 (slip opinion).  In a 6-3 decision, the Court held that, in a securities fraud class action under Section 10(b) and Rule 10b-5, the plaintiff need not prove materiality as a prerequisite to class … Continue Reading

Trial Plans Are A Focus of New Class Certification Decision By Judge Posner

I’ve noted before that Judge Posner of the Seventh Circuit has been particularly prolific in writing class certification opinions.  His latest one, Espenscheid v. DirectSat USA, Inc., No. 12-1943, 2013 U.S. App. LEXIS 2409 (7th Cir. Feb. 4, 2013), makes some key points about the usefulness of trial plans in evaluating whether class treatment is … Continue Reading

Florida Law on Class Certification: Has the Florida Supreme Court Changed the Law?

Has there been a “sea change” in Florida class action law making it more favorable to plaintiffs?  That is what a dissenting opinion asserts in a recent Florida Supreme Court per curiam decision.  If that dissent is accurate, insurers and other large corporations should be prepared to face a potential increase in class action filings … Continue Reading

When Does Misconduct By Plaintiff’s Counsel Warrant Denial of Class Certification? New Seventh Circuit Opinion Provides Further Guidance

The Seventh Circuit recently provided additional guidance on the question of under what circumstances misconduct by plaintiff’s counsel can warrant denial of class certification.  In 2011, the Seventh Circuit addressed this issue in Creative Montessori Learning Ctrs. v. Ashford Gear, LLC, 662 F.3d 913 (7th Cir. 2011) (blog post), vacating and remanding an order granting … Continue Reading

Title Insurance Class Action Decertified Based On Wal-Mart v. Dukes

Title insurers have been hit with a wave of putative class action lawsuits alleging that they improperly failed to provide discounts on premiums for title policies issued in connection with a refinancing.  (For more on this, see the Title Insurance page of this blog.)  Although some classes have been certified on this issue, the federal … Continue Reading

Class Actions for Declaratory or Injunctive Relief Under Rule 23(b)(2) Addressed In New Opinion By Judge Posner

Judge Posner has been quite prolific in writing opinions on class certification.  His latest one addresses under what circumstances a Rule 23(b)(2) class can seek “incidental” monetary relief after Wal-Mart v. Dukes.   In Johnson v. Meriter Health Servs. Employee Retirement Plan, No. 12-2216, 2012 U.S. App. LEXIS 24854 (7th Cir. Dec. 4, 2012), the Seventh … Continue Reading

Predominance Addressed in New Seventh Circuit Opinion By Judge Posner

The class action world is abuzz with discussion of Judge Posner’s recent opinion for the Seventh Circuit in Butler v. Sears, Roebuck & Co., Nos. 11-8029, 12-8030, 2012 U.S. App. LEXIS 23284 (7th Cir. Nov. 13, 2012).  This decision, finding class certification appropriate in a product defect case, could have reverberations beyond the products liability … Continue Reading

Comcast v. Behrend Oral Argument in U.S. Supreme Court

The Supreme Court granted certiorari in Comcast Corp. v. Behrend, No. 11-864 (docket) to decide the following question, as reformulated by the Court: “[w]hether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages … Continue Reading

Rule 23(b)(2) and Fail-Safe Classes Addressed By Fifth Circuit

The Fifth Circuit recently upheld certification of a Rule 23(b)(2) class where the plaintiffs sought only injunctive relief, and the court squarely rejected a rule against “fail-safe” class definitions that other circuits have adopted.  Although this case involved relatively unique issues, this decision is significant in that it is a relatively plaintiff-friendly decision from a … Continue Reading

Fail-Safe Classes, Commonality and Predominance Addressed In Sixth Circuit Affirmance of Certification of Insurance Class Action

Plaintiffs’ lawyers seeking to certify classes against insurance companies are likely to frequently cite the Sixth Circuit’s recent decision in Young v. Nationwide Mutual Insurance Company, Nos. 11-5015 et al., 2012 U.S. App. LEXIS 18625 (6th Cir. Sept. 5, 2012).  Although the opinion does not make it clear, this decision appears to conflict with some … Continue Reading

Title Insurance Class Action: Fifth Circuit Illustrates Analysis of Proposed Common Questions Under Wal-Mart v. Dukes

In a title insurance class action, the Fifth Circuit recently illustrated one method of applying the Supreme Court’s decision in Wal-Mart v. Dukes:  Analyze separately each question that the named plaintiffs propose as a  common question of law or fact.  Determine whether it is actually a proper question that a judge would decide as a … Continue Reading

Supreme Court Class Action Cases for October 2012 Term

The U.S. Supreme Court has already granted review on one class action law issue as described in my June 26, 2012 post.  In Comcast Corp. v. Behrend, No. 11-864, the Court granted certiorari on “[w]hether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert … Continue Reading

Class Definitions, Ascertainability and Numerosity Addressed By Third Circuit

A new decision by the Third Circuit speaks to a number of important class certification issues.  Although it’s a case involving an alleged product defect, the court’s commentary on class certification law should have a broader reach to insurance class actions and beyond. In Marcus v. BMW of North America, LLC, Nos. 11-1192 & 11-1193, … Continue Reading

Louisiana Class Action: Court of Appeal Addresses Standard for Decertification

This is a guest blog post by my friend Seth Schmeeckle, a partner with Lugenbuhl, Wheaton, Peck, Rankin & Hubbard in New Orleans and Baton Rouge, Louisiana.  Seth and I worked together on defending a number of Hurricane Katrina insurance class actions.  As you may recall, he did a previous guest post regarding the Louisiana … Continue Reading

Comity Does Not Make Class Certification Decisions Binding According to the Seventh Circuit

Last year, in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), the Supreme Court held that a denial of class certification was not binding on absent members of the putative class, and thus a federal district court that had denied class certification could not enjoin an absent, non-named member of the putative class from … Continue Reading

Comcast Corp. v. Behrend: Supreme Court Grants Certiorari Regarding Evidence Requirements at Class Certification

Yesterday, the U.S. Supreme Court granted certiorari in Comcast Corp. v. Behrend, No. 11-864 (docket), to address the question of “[w]hether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide … Continue Reading

Due Process Protections in State Class Actions: Louisiana Citizens Insurance Seeks Certiorari in U.S. Supreme Court

In an insurance class action, the U.S. Supreme Court now has another opportunity to take up the issue of federal due process protections in state court class actions.  The Court’s decisions last term in Wal-Mart v. Dukes and AT&T v. Concepcion are of limited help to defendants in state court because, while many state courts … Continue Reading

Class Certification After Wal-Mart v. Dukes: Fifth Circuit Instructs District Courts How To Apply Wal-Mart

How is a district court supposed to apply the Supreme Court’s opinion in Wal-Mart v. Dukes?  Dive deeply into the specifics of the plaintiff’s causes of action, the defendant’s defenses and the relevant facts.  A more general, broad brush analysis will not do.  That was the message delivered by the Fifth Circuit fairly strongly in … Continue Reading

Class Actions Seeking Injunctive Relief Under Rule 23(b)(2): New Third Circuit Opinion

After Wal-Mart v. Dukes, some commentators have suggested that plaintiffs’ attorneys are likely to file more class actions seeking exclusively declaratory or injunctive relief, on the theory that it might be easier to obtain certification of those cases.  Prof. Jack Coffee of Columbia Law School has suggested this, as I noted in my October 25, … Continue Reading

Is Notice Required to Bind Absent Class Members Under Rule 23(b)(2)? Federal Circuit Says Yes In Case Involving Judicial Salaries

The Federal Circuit recently held that individual notice to absent class members is required to bind them to a judgment in a class action certified under Rule 23(b)(2), at least where the claims are monetary in nature.  This case is particularly significant for a defendant faced with a class action that has been certified under … Continue Reading
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