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Category Archives: Superiority

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Third Circuit Rulings Give Teeth to Ascertainability Requirement for Class Certification

Posted in Ascertainability, Class Certification, Numerosity, Superiority

The “ascertainability” requirement for class certification is a crucial safeguard for both defendants and absent class members. There is some debate about its origin: some courts have held that it is implicit in Rule 23 that class members must be readily identifiable; others find ascertainability to be rooted in Rule 23(a)(1)’s numerosity mandate or Rule… Continue Reading

Is There New Hope for Challenging Aggregated Statutory Damages?

Posted in Class Certification, Superiority, U.S. Supreme Court

Congress and state legislatures have enacted many statutes that provide for minimum statutory damages recoveries that are far in excess of the actual damages most individuals will suffer. A prominent example is the Telephone Consumer Protection Act (TCPA), which offers $500 per violation of the statute, trebled to $1500 for willful violations. The idea is… Continue Reading

Can Plaintiffs Evade The FDCPA’s Cap on Total Statutory Damages in a Class Action by Filing Multiple, Gerrymandered Class Actions?

Posted in CAFA, Class Certification, Motions Practice, Superiority

The Fair Debt Collection Practices Act (FDCPA), which regulates the conduct of debt collectors, authorizes plaintiffs suing over violations to recover statutory damages of up to $1,000. Because these amounts can rapidly add up to exorbitant numbers in a class action for very minor, technical violations, Congress capped the total amount of statutory damages that… Continue Reading

Lipton v. Chattem, Inc.: Federal District Court Denies Certification On Adequacy Grounds

Posted in Adequacy, Class Certification, Predominance, Superiority

The requirement that the named plaintiff must be an adequate class representative is not often the basis for denying class certification. But a recent decision from the Northern District of Illinois in a false-advertising class action illustrates the importance of taking discovery on facts that are relevant to the adequacy standard. In Lipton v. Chattem,… Continue Reading

Seventh Circuit: A “Shapeless, Free-Wheeling” Trial Plan Is Grounds for Decertifying Class

Posted in Class Certification, Employment, Predominance, Rule 23(b)(2), Superiority

The Seventh Circuit’s recent decision in Espenscheid v. DirectSat USA, LLC—authored by Judge Posner—is full of good news for employers and other class-action defendants. The case is a hybrid collective action under the Fair Labor Standards Act (pdf) and opt-out Rule 23(b)(3) class action asserting state-law wage-and-hour claims. The plaintiffs—a group of home satellite-dish installers who… Continue Reading

Can a Product-Liability Class that Is Full of Uninjured Members Be Certified?

Posted in Class Certification, Predominance, Superiority

The answer is a resounding “no,” says Judge Cormac Carney of the Central District of California in a recent significant decision in litigation over the third generation Toyota Prius and 2010 Lexus HS250h vehicles (In re Toyota Motor Corp. Hybrid Brake Mktg., Sales Practices & Prods. Liab. Litig. (pdf), No. SAML 10-2172-CJC (C.D. Cal. Jan. 9,… Continue Reading

Federal Government Acknowledges Undue Risk of Potentially Massive Liability from Class Actions for Statutory Damages Under the Federal Credit Reporting Act, but Proposes a Solution Good for One Defendant Only

Posted in Class Action Trends, Class Certification, Motions Practice, Superiority, U.S. Supreme Court

Tomorrow, the Supreme Court will hear argument in United States v. Bormes, a case that apparently has not captured the attention of most class action practitioners. That’s understandable: The question presented (pdf) is “whether the Little Tucker Act, 28 U.S.C. § 1346(a)(2), waives the sovereign immunity of the United States with respect to damages actions for violations… Continue Reading

Second Circuit: Insufficient Notice of Class Action Settlement Means That Class Members Can Bring Copycat Class Actions

Posted in Appeals, Class Action Settlements, Class Certification, Rule 23(b)(2), Superiority

The Second Circuit’s recent decision in Hecht v. United Collection Bureau, Inc., No. 11-1327 (2d Cir. Aug. 17, 2012), should sound alarm bells for any business that attempts to settle a class action.  The takeaway from the decision is to make sure that  notice of the settlement to absent class members is adequate. Under some… Continue Reading

Lawyer-Driven Class Action Challenging ATM Fee Notices Flunks Superiority Requirement

Posted in Class Certification, Superiority

We recently reported on a class settlement in which no members of the class submitted claims.  The plaintiffs in that case contended that the defendant violated the Electronic Funds Transfer Act (EFTA) by failing to post a notice on its ATMs that consumers would be charged a fee for using the machines. More recently, in… Continue Reading

Class Action Attacking Product Defect Declared Moot When Company Voluntarily Recalled Challenged Product

Posted in Adequacy, Class Action Trends, Class Certification, Motions Practice, Superiority

Should a class action go forward when the company voluntarily has provided all the relief plaintiffs have sought?  At least in some circumstances, the answer is “no,” according to the Tenth Circuit. Here’s some background.   Many product manufacturers—and especially auto makers—are targeted by the class action bar when they announce voluntary recalls.  The lawsuits typically… Continue Reading