The Third Circuit’s new opinion on class certification issues in Mielo v. Steak ‘N Shake Operations, Inc., No. 17-2678 (3d Cir. July 26, 2018) provides helpful guidance for district courts and class action lawyers on both sides. The case alleged violations of the Americans with Disabilities Act (“ADA”) at the defendant’s restaurants. In brief,
Class Certification Standards
Thoughts on the Fairness in Class Action Litigation Act of 2017
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…
Gorsuch on Class Actions: How Might He Compare to Scalia?
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…
Ascertainability Not Required In Ninth Circuit, But Manageability Remains
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…
Spokeo v. Robins Supreme Court Opinion: What Is Concrete Harm?
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…
Tyson Foods Supreme Court Opinion Addresses Statistical Evidence in Class Actions
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…
How Will Justice Scalia’s Death Impact Pending Class Action Cases?
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.
Thoughts on Tyson Foods Oral Argument
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…
Ascertainability in Class Actions: Second Circuit Weighs In
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…
Predominance Is Lacking Where Some Class Members Have No Injury, Says the Ohio Supreme Court
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…