Tag Archives: Second Circuit

Ascertainability in Class Actions: Second Circuit Weighs In

Ascertainability has been a hot topic in class action appeals recently. The Third Circuit recently clarified its ascertainability standard (see my April 20 blog post). The committee considering potential Rule 23 amendments is exploring adding an explicit ascertainability requirement to the rule. (My fellow class action blogger Paul Karlsgodt just posted a great summary of … Continue Reading

Comcast, Superiority, Predominance and Injunctive Relief Addressed in Recent Second Circuit Class Certification Opinions

The Second Circuit recently addressed a panoply of class certification issues in two opinions. Both decisions ruled in favor of the plaintiffs, but will help defendants tailor their arguments in future cases. Roach v. T.L. Cannon Group, No. 13-3070-cv, 2015 U.S. App. LEXIS 2054 (2d Cir. Feb. 10, 2015) addressed whether the Supreme Court’s decision … 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 Action Waiver in Arbitration Provision Found Unenforceable By Second Circuit in American Express Case, Notwithstanding AT&T v. Concepcion

On January 30, I published a blog post about a Southern District of New York decision holding that an arbitration clause barring class actions was unenforceable because the costs of an individual arbitration effectively would preclude the plaintiff from pursuing her statutory rights under the Fair Labor Standards Act.  The Second Circuit has now reached … Continue Reading
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