Archives: Class Certification Standards

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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

Class Certification After Wal-Mart v. Dukes: New Seventh Circuit Opinion On Injunctive Relief Under Rule 23(b)(2) and Issues Classes Under Rule 23(c)(4)

Classes can still be certified post-Wal-Mart, even in large employment discrimination cases.  That seemed to be the message delivered by Judge Posner in his opinion for the Seventh Circuit in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 11-3639, slip op. (7th Cir. Feb. 24, 2012).  The Seventh Circuit found certification appropriate where … Continue Reading

Declaratory Relief Class Actions Under Rule 23(b)(2): Sixth Circuit Issues Significant Opinion in Health Insurance Class Action

The Sixth Circuit recently ruled in a health insurance case that a claim for a declaratory judgment regarding insurance contract interpretation could be certified under Rule 23(b)(2) under Wal-Mart v. Dukes, even if the declaratory relief would be a predicate to monetary relief, under which certification was sought under Rule 23(b)(3) but not yet ruled … Continue Reading

Every Class Certification Order Must Specify the Class Claims, Issues and Defenses Under Rule 23(c)(1)(B), According to Seventh Circuit

Regular readers of my blog may recall that my post last week about the ABA Premier Speaker Series webinar on class actions described how Mark Perry had made an interesting point that courts should focus more intently on Rule 23(c)(1)(B).  This is a sometimes overlooked subsection of Rule 23 that requires an order certifying a … Continue Reading

ABA Premier Speaker Series Webinar on Class Actions

Earlier this week I attended the ABA’s national webinar entitled “The Future of Class Actions,” part of its Premier Speaker Series.  The panelists were Paul Bland of Public Justice, Mark Perry of Gibson Dunn and Judge Lee Rosenthal of the Southern District of Texas.  Here is what I found most interesting:  Paul Bland, the plaintiffs-side … Continue Reading

Daubert at Class Certification, Lack of Injury to Class Members, Fail-Safe Classes and Class Definitions All Addressed in New Seventh Circuit Opinion

The Seventh Circuit has started 2012 off with a significant class certification opinion.  Messner v. Northshore Univ. Healthsystem, No. 10-2514, 2012 U.S. App. LEXIS 731 (7th Cir. Jan. 13, 2012) was an antitrust case alleging that a merger of two hospitals violated federal antitrust laws, but the opinion speaks to several broader issues regarding class … Continue Reading

Montana Class Action Decision Illustrates Some State Courts’ Divergence From Wal-Mart

The Montana Supreme Court’s recent decision in Diaz v. Blue Cross and Blue Shield of Montana, 2011 Mont. LEXIS 433 (Mont. Dec. 21, 2011) is an interesting example of how some state supreme courts are effectively ignoring or side-stepping the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).  … Continue Reading

Can Ethical Misconduct By Plaintiffs’ Counsel Bar Class Certification? Seventh Circuit Says Yes

Some trial judges have debated whether, when one or more attorneys for a proposed class are accused of ethical misconduct in a case, that is a matter only for the bar authorities or is an appropriate issue for class certification.  The Seventh Circuit recently held, quite forcefully, that misconduct by plaintiffs’ counsel is an appropriate … Continue Reading

Class Action on Insurance Company’s Use of a Database To Evaluate Medical Bills: Colorado Supreme Court Says Denial of Class Certification Was Proper

The Colorado Supreme Court recently issued several new decisions on class certification, one of which was in an insurance class action – State Farm Mutual Automobile Insurance Company v. Reyher, Case No. 10SC77, 2011 Colo. LEXIS 844 (Colo. Oct. 31, 2011).  This was one of many putative class actions that have been filed involving the … Continue Reading

Class Action on Diminution in Value Auto Claims: Recent Denial of Certification Illustrates Application of Wal-Mart v. Dukes to Insurance Class Actions

The recent denial of class certification in Fosmire v. Progressive Max Ins. Co., 2011 U.S. Dist. LEXIS 117366 (W.D. Wash. Oct. 11, 2011) is the second opinion I’ve seen post-Wal-Mart that applies the new standards in detail in an insurance class action.  This putative nationwide class action alleged that Progressive improperly failed to pay for … Continue Reading

Inadequacy of Class Counsel As Grounds for Denial of Class Certification: New Seventh Circuit Opinion

Notwithstanding the wide variation in skill levels within the plaintiffs’ class action bar, denials of class certification based on inadequacy of proposed class counsel are relatively rare.  The Seventh Circuit’s recent decision in Gomez v. St. Vincent Health, Inc., 649 F.3d 583 (7th Cir. 2011) caught my eye because there the only ground for denial … Continue Reading

Is a Parens Patriae Suit A Class Action Under CAFA? Ninth Circuit Says No

Earlier this year, I posted about a Fourth Circuit decision holding that a lawsuit filed by a state attorney general purportedly as a parens patriae suit was not a “class action” under the Class Action Fairness Act (CAFA), and therefore there was no federal jurisdiction.  The Ninth Circuit has now joined the Fourth Circuit on … Continue Reading

Insurance Class Actions in Canada

I recently came across an interesting article entitled “Canada: Class Actions and the Insurance Industry” that I thought would be of particular interest to readers of this blog.  Many U.S. insurers write homeowners and auto policies in Canada and may need to start paying closer attention to developments in Canadian class action law, which Canadian … Continue Reading

New Ninth Circuit Decision Explains Application of Wal-Mart v. Dukes

A recent Ninth Circuit decision remanded a class certification order for reconsideration in light of Wal-Mart v. Dukes.  The court made several key points about consideration of the merits, evaluation of expert testimony at the class certification stage, and Rule 23(b)(2). In Ellis v. Costco Wholesale Corp., 2011 U.S. App. LEXIS 19060 (9th Cir. Sept. … Continue Reading

Further Thoughts on Voluntary Relief Programs Defeating Superiority in Class Actions

In response to my recent post about the Seventh Circuit’s decision in the Aqua Dots litigation, law professor Eric Voigt of Faulkner University alerted me to a draft article he’s written entitled “A Company’s Voluntary Refund Program for Consumers Can Be a Fair and Efficient Alternative to a Class Action to Warrant the Denial of … Continue Reading

Class Actions Seeking Automatic Statutory Penalties: Recent New Jersey Appellate Decision Finds Superiority Not Satisfied

A common tactic by plaintiffs’ lawyers in filing class actions against insurance companies is to attempt to recover automatic statutory penalties which are small on each individual claim but, when aggregated, potentially impose a very large liability on the insurer.  An example of this type of suit is Shady Grove Orthopedic Associates, P.A. v. Allstate … Continue Reading

When Is An Issues Class Appropriate for Certification? New Third Circuit Opinion Follows the ALI Principles of Aggregate Litigation

Following Wal-Mart, I expect we will see more attempts by plaintiffs to try to certify issues classes under Rule 23(c)(4), which provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.”  Courts have disagreed about when issues classes may be certified under this provision.  The … Continue Reading

Superiority Requirement for Class Certification: New Sixth Circuit Decision Makes Interesting Points

The recent Sixth Circuit decision in Pipefitters Local 636 Insurance Fund v. Blue Cross Blue Shield of Michigan, 2011 U.S. App. LEXIS 16624 (6th Cir. Aug. 12, 2011) makes some interesting points about superiority that I think are particularly significant, and have not seen in other class action decisions.  The case involved whether certain fees … Continue Reading

Certification of Class Against CIGNA by Pennsylvania Federal Court Illustrates Where Insurance Companies May Have Class Action Exposure Post-Wal-Mart

A recent certification of a class against CIGNA in the Eastern District of Pennsylvania is a good example of the type of issue on which insurers may continue to have significant class action exposure following the Supreme Court’s decision in Wal-Mart (see my blog post on Wal-Mart).  This decision has received fairly extensive coverage in … Continue Reading

First Class Certification Ruling in Insurance Class Action After Wal-Mart Finds No Commonality

I recently came across the first class certification ruling I’ve seen in an insurance case since the Supreme Court decided Wal-Mart (see my prior blog post).  The court strongly applied the new standard for commonality and found a lack of commonality, even though the same judge had previously found most of the class certification elements … Continue Reading

Does State Law Vary on Breach of Contract? Yes, as a Recent Denial of Certification Recognizes

In seeking to certify multistate and nationwide class actions against insurance companies, plaintiffs’ attorneys often argue that the law of breach of contract is essentially the same nationwide, and therefore class certification is proper.  This argument has some appeal to some judges, at least at first blush.  As I think back to my contracts class … Continue Reading

Consideration of the Merits on Class Certification: Certiorari Petition in Kartman v. State Farm Argues That Seventh Circuit Improperly Decided the Merits

I previously posted on the Seventh Circuit’s opinion reversing class certification in Kartman v. State Farm Mutual Auto. Ins. Co., where the plaintiffs claimed that State Farm improperly applied inconsistent standards in adjusting hail damage claims.  Law360 recently reported on the petition for certiorari in that case.  (I don’t have a link to the petition … Continue Reading