Archives: Defense Strategy

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Supreme Court to Decide Class Action Issues Involving Settlement Offers to Named Plaintiffs, Statistical Sampling and Class Member Standing Issues Next Term

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. I previously … Continue Reading

Use of Expert Testimony at Class Certification Stage Addressed By Third Circuit

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 … Continue Reading

Can A Certified Class Include Uninjured Parties? First Circuit Majority Says “Yes,” In Some Instances

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 … Continue Reading

Offer of Judgment to Named Plaintiff Did Not Moot Putative Class Action, According to Eleventh Circuit

Following the Supreme Court’s decision in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), lawyers have debated whether a defendant can defeat a class action by offering full relief to the named plaintiff(s), either before a class is certified, or before a motion for class certification is filed. Last week, the Eleventh Circuit … Continue Reading

Affirmative Defenses Must Be Addressed In Class Certification Order, According To Texas Court of Appeals

A recent decision of the Texas Court of Appeals in Austin (Third District) caught my eye. Not because it involved insurance; rather, it was a securities class action challenging a board of directors’ approval of a corporate transaction. See Brigham Exploration Co. v. Boytim, No. 03-13-00191-CV, 2014 Tex. App. LEXIS 9068 (Tex. Ct. App. – … Continue Reading

Statistical Sampling in Class Actions Addressed By California Supreme Court

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 … Continue Reading

Motion to Deny Class Certification in Insurance Case Granted, in Part, By Michigan Federal Court

Insurers and other corporations defending against putative class actions often struggle with how to try to achieve an early resolution of a putative class action, and thereby reduce legal expense, when the case is not appropriate for resolution on a motion to dismiss, or a motion to dismiss is denied.  One approach is to move … Continue Reading

Use of a Settlement Offer or Offer of Judgment on the Named Plaintiff’s Claim to Defeat a Class Action: New Seventh Circuit Decision

Commentators have questioned whether, after the Supreme Court’s decision last year in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), a defendant could, by making a settlement offer or offer of judgment on a named plaintiff’s claim, render the case moot and prevent the certification of a class.  The Seventh Circuit has now … Continue Reading

Full Offer of Judgment That is Not Accepted Does Not Moot An Individual Claim, According To the Ninth Circuit

A recent Ninth Circuit decision addresses a question left open by the Supreme Court’s decision this year in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013):  Does an offer of full relief to the plaintiff under Fed. R. Civ. P. 68, which is not accepted by the plaintiff, render a case moot?  The … Continue Reading

Motions to Strike Class Allegations in Insurance Class Actions: New Middle District of Georgia Opinion is Useful to Defendants

One strategy defendants often consider at the outset of a class action is filing a motion to strike the class allegations based on the pleadings. Such a motion challenges whether the case as pled could ever be certified as a class action, similar to a Rule 12(b)(6) motion to dismiss for failure to state a … Continue Reading

Federation of Defense and Corporate Counsel (FDCC) Annual Meeting: Can Military Processes Help Defend Class Action Litigation?

I recently was elected as a new member of the Federation of Defense and Corporate Counsel (FDCC) and last week I attended my first annual meeting of that organization.  One of the presentations was by two former senior military officers from Afterburner, a consulting company that teaches businesses and professionals how they can potentially use … Continue Reading

Is An Order Modifying A Class Definition Appealable Under Rule 23(f)? Seventh Circuit Says Yes

The Seventh Circuit recently addressed an interesting issue regarding the types of appeals permitted by Rule 23(f).  In Matz v. Household International Tax Reduction Investment Plan, No. 12-8010, 2012 U.S. App. LEXIS 14771 (7th Cir. July 19, 2012), the district court had modified a previously-certified class to eliminate between 57% and 71% of the class … Continue Reading

Applying Iqbal in Insurance Class Actions: Second Circuit Affirms Dismissal of Title Insurance Complaint

Several years ago, legal commentators wrote extensively about the U.S. Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which revised the standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6).  Commentators have debated the extent to which these decisions … Continue Reading

Association of Corporate Counsel Blog Post on Dealing with the Media

Fred Krebs of the Association of Corporate Counsel’s In-House Access blog published an interesting recent post on “Dealing with the Media.”  His blog post has some great pointers about what it means to speak with the media “on background,” keeping answers short, remembering that discussions with PR people within the company might not be privileged, … Continue Reading

Reducing Legal Expenses in Class Actions

An April 17 article by Jennifer Smith on the Wall Street Journal Law Blog is getting quite a bit of attention.  It discusses a survey by the Carlton Fields law firm, concluding that companies expect to see more class action filings in 2012, but to spend less money defending them.  She writes:  How, might you … Continue Reading