Last week the Second Circuit issued a new decision affirming, with one exception, the approval of a $5.6 billion revised class action settlement in the long-running Visa/Mastercard antitrust litigation. (See my blog post on the Second Circuit’s reversal of a prior settlement in 2016.) The opinion and two concurrences in Fikes Wholesale, Inc. v. HSBC
Second Circuit
Ascertainability in Class Actions: Second Circuit Weighs In
By Wystan Ackerman on
Posted in Class Certification Standards
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…
Filed Rate Doctrine Addressed in Recent Second Circuit Decision
By Wystan Ackerman on
Posted in Property Insurance
The filed rate doctrine can often provide a strong defense to an insurer in a class action claiming that insurance premiums were too high for some reason. A recent Second Circuit decision applied the doctrine broadly. This decision is likely to be helpful to insurers in future cases.
Comcast, Superiority, Predominance and Injunctive Relief Addressed in Recent Second Circuit Class Certification Opinions
By Wystan Ackerman on
Posted in Class Certification Standards
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…
“Late” Removal Under CAFA Permissible According to Second Circuit
By Wystan Ackerman on
Posted in Class Action Fairness Act
In my July 9, 2013 blog post, I wrote about a Ninth Circuit decision allowing removals under the Class Action Fairness Act (“CAFA”) more than 30 days after service of the complaint, where the complaint and other documents received from the plaintiff did not demonstrate on their face that the case was removable.
In …
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
By Wystan Ackerman on
Posted in Class Action Settlements
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)…
Class Action Waiver in Arbitration Provision Found Unenforceable By Second Circuit in American Express Case, Notwithstanding AT&T v. Concepcion
By Wystan Ackerman on
Posted in Arbitration/Appraisal
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…