Rule 23(b)(2)

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A recent decision by a Washington federal district court caught my eye because it involved a circumstance I often see—a new development in the law results in a class action lawsuit being filed before the defendant has an opportunity to change its practices in response to the change (or clarification) in the law. This decision…

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 …

I’ve noted before that Judge Posner of the Seventh Circuit has been particularly prolific in writing class certification opinions.  His latest one, Espenscheid v. DirectSat USA, Inc., No. 12-1943, 2013 U.S. App. LEXIS 2409 (7th Cir. Feb. 4, 2013), makes some key points about the usefulness of trial plans in evaluating whether class treatment…

Judge Posner has been quite prolific in writing opinions on class certification.  His latest one addresses under what circumstances a Rule 23(b)(2) class can seek “incidental” monetary relief after Wal-Mart v. Dukes.  

In Johnson v. Meriter Health Servs. Employee Retirement Plan, No. 12-2216, 2012 U.S. App. LEXIS 24854 (7th Cir. Dec. 4, 2012)…

The Fifth Circuit recently upheld certification of a Rule 23(b)(2) class where the plaintiffs sought only injunctive relief, and the court squarely rejected a rule against “fail-safe” class definitions that other circuits have adopted.  Although this case involved relatively unique issues, this decision is significant in that it is a relatively plaintiff-friendly decision from a…

One important distinction that Rule 23 makes between different types of class actions is that the rule does not require notice to the class or an opportunity to opt out for 23(b)(1) and (b)(2) classes, but notice and an opportunity to opt out are required for 23(b)(3) classes.  See Fed. R. Civ. P. 23(c)(2)(A), (B)…

After Wal-Mart v. Dukes, some commentators have suggested that plaintiffs’ attorneys are likely to file more class actions seeking exclusively declaratory or injunctive relief, on the theory that it might be easier to obtain certification of those cases.  Prof. Jack Coffee of Columbia Law School has suggested this, as I noted in my October…

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…