Tag Archives: Seventh Circuit

Offers of Judgment in Class Actions: Fifth and Seventh Circuits Weigh In

As highlighted in my June 16 blog post, the Supreme Court has granted certiorari, in Campbell-Ewald Co. v. Gomez, No. 14-857 (SCOTUSblog page), to decide whether an offer of complete relief to a named plaintiff renders a putative class action moot. Notwithstanding that the Supreme Court is about to decide this question (with oral argument … Continue Reading

Injunction in Aid of Class Action Settlement Addressed by Seventh Circuit

Defendants who are defending multiple class actions involving the same issue in different jurisdictions can sometimes be faced with a quandary when they want to settle. They might reach a settlement agreement with plaintiffs’ counsel in one of the cases, but until that settlement is final, which typically takes months, they may have to continue … Continue Reading

Class Action Settlement: Judge Posner Strikes Again At Excessive Plaintiffs’ Attorneys’ Fees

Judge Posner of the Seventh Circuit continues to be prolific in authoring class action-related opinions. I enjoy blogging about these decisions because they are entertaining to read and usually relatively short and to the point, making them easy to get through and summarize here. This opinion, once again, concluded that an award of attorneys’ fees … Continue Reading

Attorneys’ Fees In Class Action Settlements Addressed By Judge Posner

Judge Posner of the Seventh Circuit is a frequent author of class action-related opinions. His most recent one reversed an order approving a class action settlement because the attorneys’ fee award was too high.  The case involved claims that RadioShack violated the Fair and Accurate Credit Transactions Act by putting expiration dates for credit card … Continue Reading

Class Action Settlement in Pella Windows Case Overturned By Seventh Circuit

One of the prominent cases in which a products liability class action has been certified in recent years is Pella Corp. v. Saltzman, 606 F.3d 391 (7th Cir. 2010), involving windows that allegedly contained a design defect that allowed water infiltration.  After the class was certified, a settlement was reached and approved by the federal … Continue Reading

Use of a Settlement Offer or Offer of Judgment on the Named Plaintiff’s Claim to Defeat a Class Action: New Seventh Circuit Decision

Commentators have questioned whether, after the Supreme Court’s decision last year in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), a defendant could, by making a settlement offer or offer of judgment on a named plaintiff’s claim, render the case moot and prevent the certification of a class.  The Seventh Circuit has now … Continue Reading

Class Action With Small Stakes And Potential Cy Pres Remedy Addressed By Seventh Circuit

Judge Posner of the Seventh Circuit, a prolific writer of class action opinions in recent years, recently wrote a new decision addressing whether a class action with small stakes could properly be decertified.  The decision includes some extensive commentary on how such a case might be resolved.  Notably, this was a case where the defendant … 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

When Does Misconduct By Plaintiff’s Counsel Warrant Denial of Class Certification? New Seventh Circuit Opinion Provides Further Guidance

The Seventh Circuit recently provided additional guidance on the question of under what circumstances misconduct by plaintiff’s counsel can warrant denial of class certification.  In 2011, the Seventh Circuit addressed this issue in Creative Montessori Learning Ctrs. v. Ashford Gear, LLC, 662 F.3d 913 (7th Cir. 2011) (blog post), vacating and remanding an order granting … 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

Predominance Addressed in New Seventh Circuit Opinion By Judge Posner

The class action world is abuzz with discussion of Judge Posner’s recent opinion for the Seventh Circuit in Butler v. Sears, Roebuck & Co., Nos. 11-8029, 12-8030, 2012 U.S. App. LEXIS 23284 (7th Cir. Nov. 13, 2012).  This decision, finding class certification appropriate in a product defect case, could have reverberations beyond the products liability … 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

Every Class Certification Order Must Specify the Class Claims, Issues and Defenses Under Rule 23(c)(1)(B), According to Seventh Circuit

Regular readers of my blog may recall that my post last week about the ABA Premier Speaker Series webinar on class actions described how Mark Perry had made an interesting point that courts should focus more intently on Rule 23(c)(1)(B).  This is a sometimes overlooked subsection of Rule 23 that requires an order certifying a … Continue Reading

Daubert at Class Certification, Lack of Injury to Class Members, Fail-Safe Classes and Class Definitions All Addressed in New Seventh Circuit Opinion

The Seventh Circuit has started 2012 off with a significant class certification opinion.  Messner v. Northshore Univ. Healthsystem, No. 10-2514, 2012 U.S. App. LEXIS 731 (7th Cir. Jan. 13, 2012) was an antitrust case alleging that a merger of two hospitals violated federal antitrust laws, but the opinion speaks to several broader issues regarding class … Continue Reading

Can You “Pick Off” A Named Plaintiff To Moot A Class Action? New Seventh Circuit and Federal Circuit Decisions Address This Issue

One tactic some defendants have tried to use in defending a class action is providing or offering to the named plaintiff the full relief requested on his or her individual claim.  Typically a named plaintiff’s individual claim in a class action is worth a relatively small sum, much smaller than the costs of defending the … Continue Reading

Can Ethical Misconduct By Plaintiffs’ Counsel Bar Class Certification? Seventh Circuit Says Yes

Some trial judges have debated whether, when one or more attorneys for a proposed class are accused of ethical misconduct in a case, that is a matter only for the bar authorities or is an appropriate issue for class certification.  The Seventh Circuit recently held, quite forcefully, that misconduct by plaintiffs’ counsel is an appropriate … Continue Reading

Calculating the Amount in Controversy Under the Class Action Fairness Act in an Insurance Class Action: New Seventh Circuit Opinion

The Seventh Circuit recently issued a decision favorable to insurers regarding calculating the amount in controversy under the Class Action Fairness Act (CAFA).  In Keeling v. Esurance Insurance Company, 2011 U.S. App. LEXIS 19598 (7th Cir. Sept. 26, 2011), the plaintiff brought a class action alleging that certain UM/UIM coverage sold by Esurance was purportedly … Continue Reading

New Seventh Circuit Decision Provides Guidance on How Defendants May Be Able to Avoid Class Treatment By Voluntarily Providing Relief

One question that tends to arise in insurance class actions and other consumer class actions is whether a defendant can avoid class treatment by voluntarily providing relief to the proposed class.  The risks of doing that include the possibility that the litigation will continue because the plaintiffs’ lawyers will argue that the relief provided is … Continue Reading

Seventh Circuit Injunction Against Repetitive Class Action Remanded For Reconsideration In Light Of Smith v. Bayer

On the final day of the Supreme Court term, the Court vacated and remanded the Seventh Circuit’s decision in Thorogood v. Sears, Roebuck & Co. for reconsideration in light of the Court’s opinion in Smith v. Bayer Corp. (see my blog post on Smith).  In Thorogood, the Seventh Circuit, after previously ruling that class certification … Continue Reading

The Burden of Proof on the Amount in Controversy Under the Class Action Fairness Act: Seventh Circuit Makes It Easier for Insurance Companies and Other Defendants

Often the first step for a carrier in defending an insurance class action filed in state court is to determine if the $5 million amount in controversy under the Class Action Fairness Act (“CAFA”) can be met for removal to federal court, and how the amount in controversy can be proven.  In Back Doctors Ltd. … Continue Reading
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