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
Class Certification Standards
Ascertainability in Class Actions: Second Circuit Weighs In
By Wystan Ackerman on
Posted in Class Certification Standards
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
By Wystan Ackerman on
Posted in Class Certification Standards
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…
Supreme Court to Decide Class Action Issues Involving Settlement Offers to Named Plaintiffs, Statistical Sampling and Class Member Standing Issues Next Term
By Wystan Ackerman on
Posted in Class Certification Standards, Defense Strategy
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.…
Rule 23 Subcommittee’s Proposed Amendments
By Wystan Ackerman on
Posted in Class Certification Standards
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
…
Use of Expert Testimony at Class Certification Stage Addressed By Third Circuit
By Wystan Ackerman on
Posted in Class Certification Standards, Defense Strategy
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…
Third Circuit Clarifies Its Ascertainability Standard
By Wystan Ackerman on
Posted in Class Certification Standards
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…
Comcast, Superiority, Predominance and Injunctive Relief Addressed in Recent Second Circuit Class Certification Opinions
By Wystan Ackerman on
Posted in Class Certification Standards
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…
Can A Certified Class Include Uninjured Parties? First Circuit Majority Says “Yes,” In Some Instances
By Wystan Ackerman on
Posted in Class Certification Standards, Defense Strategy
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 …
Comcast Construed In Recent Seventh Circuit Opinion
By Wystan Ackerman on
Posted in Class Certification Standards
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 …