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
Class Certification Standards
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 …
Statistical Sampling in Class Actions Addressed By California Supreme Court
By Wystan Ackerman on
Posted in Class Certification Standards, Defense Strategy
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 …
Declaratory Relief in Insurance Class Actions: Certification Denied Because Putative Class Members Lacked Standing
By Wystan Ackerman on
Posted in Class Certification Standards
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 …
Ohio Supreme Court Finds Class Certification Inappropriate in Insurance Class Action
By Wystan Ackerman on
Posted in Class Certification Standards
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 …
Applying Comcast v. Behrend In An Insurance Class Action: District of Alaska Opinion
By Wystan Ackerman on
Posted in Auto Insurance, Class Certification Standards
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…
Class Action With Small Stakes And Potential Cy Pres Remedy Addressed By Seventh Circuit
By Wystan Ackerman on
Posted in Class Certification Standards
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…
Criteria for Rule 23(f) Discretion Addressed By D.C. Circuit
By Wystan Ackerman on
Posted in Class Certification Standards
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…
Wal-Mart v. Dukes Commonality Standard Explained By The D.C. Circuit
By Wystan Ackerman on
Posted in Class Certification Standards
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
…
Supreme Court’s Vacate Orders Suggest Breadth of New Comcast v. Behrend Opinion
By Wystan Ackerman on
Posted in Class Certification Standards
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…