After a decades-long drought, the Supreme Court recently decided a case involving the Contracts Clause of the Constitution. You might not recall that provision because it is so rarely invoked in modern-day litigation (due to how it has been construed). It provides that “[n]o state shall . . . pass . . . any Law
Defense Strategy
China Agritech, Inc. v. Resh: Class Actions Toll Statutes of Limitations Only for Individual Suits
By Wystan Ackerman on
Posted in Defense Strategy
Yesterday, in China Agritech, Inc. v. Resh, the U.S. Supreme Court ruled that, under its prior decision in American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), the filing of a putative class action suit tolls the statutes of limitations only to allow individual, non-class suits to be filed after class…
Nationwide and Multi-State Class Actions Likely Limited by Bristol-Myers Squibb Decision
By Wystan Ackerman on
Posted in Defense Strategy
In Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), the U.S. Supreme Court held that the California state courts lacked personal jurisdiction over claims made by out-of-state plaintiffs in a mass action, where the plaintiffs did not claim that they were harmed in California and the defendant’s relevant conduct did not…
Impact of Surveys and Affirmative Defenses on Class Certification Motion Addressed By California Court of Appeal
By Wystan Ackerman on
Posted in Defense Strategy
In a long-running employment class action in California, a California Court of Appeal recently addressed once again the use of surveys of class members. The case was the subject of a prior California Supreme Court decision (see my June 2014 blog post), which provided guidance on the use of statistical evidence by plaintiffs to…
Rule 23(f) Petitions – Sixth Circuit Provides Guidance
By Wystan Ackerman on
Posted in Defense Strategy
When a defendant receives an adverse decision on a motion for class certification, whether the court of appeals grants permission to appeal under Rule 23(f) of the Federal Rules of Civil Procedure (or a state-court equivalent, if available) can be a crucial turning point in the case. If the court of appeals will not hear…
How Should Corporate Defendants Handle Media Inquiries Regarding Class Actions?
By Wystan Ackerman on
Posted in Defense Strategy
At the recent DRI Class Action Seminar, I asked Alison Frankel of Thomson Reuters how she thinks corporate defendants should best handle media inquiries relating to class action suits. Here’s what I gleaned from her answer:
- Statements issued by corporate media relations departments are usually worthless. They do not help a reporter understand a court
…
Scope of Personal Jurisdiction In Nationwide and Multistate Class Actions Potentially Impacted By Supreme Court Decision In Bristol-Myers Squibb Case
By Wystan Ackerman on
Posted in Defense Strategy
This week the Supreme Court issued a new opinion in a case that involved the scope of personal jurisdiction in a nationwide mass action brought in a state court. Although it is not entirely clear the extent to which this decision may apply in a class action or in a case brought in federal court,…
Supreme Court to Hear Class Action Cases Involving Class Action Waivers and Tolling of Statutes of Limitations
By Wystan Ackerman on
Posted in Arbitration/Appraisal, Defense Strategy
The U.S. Supreme Court recently granted certiorari in class action cases involving: (1) class action waivers in employment contracts; and (2) whether filing of a securities class action tolled a statute of repose. In both cases the questions presented are relatively narrow, but opinions issued by the Supreme Court potentially could have broader implications for…
Ascertainability Not Required In Ninth Circuit, But Manageability Remains
By Wystan Ackerman on
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…
Defending Class Actions in 2016
By Wystan Ackerman on
Posted in Defense Strategy
I thought readers might find helpful some broader observations on strategies for defending class actions in 2016:
- Dig in Deep Early: Some defense counsel are accustomed to the practice of filing a motion to dismiss in virtually every putative class action. Some in-house counsel, eager to save costs, have pushed defense firms to agree
…