Tag Archives: Rule 23(b)(2)

Superiority and Mootness of Injunctive Relief Claim Addressed in Recent Denial of Class Certification

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 … Continue Reading

Declaratory Relief in Insurance Class Actions: Certification Denied Because Putative Class Members Lacked Standing

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 … Continue Reading

Ohio Supreme Court Finds Class Certification Inappropriate in Insurance Class Action

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 of … Continue Reading

Trial Plans Are A Focus of New Class Certification Decision By Judge Posner

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 is … Continue Reading

Class Actions for Declaratory or Injunctive Relief Under Rule 23(b)(2) Addressed In New Opinion By Judge Posner

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 Seventh … Continue Reading

Rule 23(b)(2) and Fail-Safe Classes Addressed By Fifth Circuit

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 … Continue Reading

Rule 23(b)(2) Class Action Settlements: Notice and Opt Out Rights Will Be Required if Damages Predominate and Perhaps if Damages Are Not Incidental, According to the Second Circuit

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).  … Continue Reading

Class Actions Seeking Injunctive Relief Under Rule 23(b)(2): New Third Circuit Opinion

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 25, … Continue Reading

Is Notice Required to Bind Absent Class Members Under Rule 23(b)(2)? Federal Circuit Says Yes In Case Involving Judicial Salaries

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 … Continue Reading

Class Certification After Wal-Mart v. Dukes: New Seventh Circuit Opinion On Injunctive Relief Under Rule 23(b)(2) and Issues Classes Under Rule 23(c)(4)

Classes can still be certified post-Wal-Mart, even in large employment discrimination cases.  That seemed to be the message delivered by Judge Posner in his opinion for the Seventh Circuit in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 11-3639, slip op. (7th Cir. Feb. 24, 2012).  The Seventh Circuit found certification appropriate where … Continue Reading

New Ninth Circuit Decision Explains Application of Wal-Mart v. Dukes

A recent Ninth Circuit decision remanded a class certification order for reconsideration in light of Wal-Mart v. Dukes.  The court made several key points about consideration of the merits, evaluation of expert testimony at the class certification stage, and Rule 23(b)(2). In Ellis v. Costco Wholesale Corp., 2011 U.S. App. LEXIS 19060 (9th Cir. Sept. … Continue Reading

Class Action on Homeowners’ Insurance Claims for Hail Damage — Seventh Circuit Reverses Certification

The Seventh Circuit recently reversed a class certification against State Farm in a case involving hail damage claims.  This decision is likely to be frequently cited in insurance coverage-related class actions.  In Kartman v. State Farm Mut. Auto. Ins. Co., Plaintiffs asserted that State Farm’s adjustments of hail damage to roofs were inconsistent — in one case, … Continue Reading