Last month, the FCC’s new rules under the Telephone Consumer Protection Act (TCPA) for consent telemarketing calls went into effect. (We’ve previously discussed those rules on this blog.) On Wednesday (November 13), I’ll be co-presenting a 90-minute CLE webinar about the new rules for Bloomberg BNA. For more information or to register, please visit Bloomberg BNA’s event page.
Today at the Supreme Court, all eyes, including mine, were on the oral arguments in the Town of Greece prayer case. But the second case—although it will certainly garner less attention—also is of great importance, especially to class-action practitioners. The issue in that case, Mississippi ex rel. Hood v. AU Optronics Corp., is whether so-called parens patriae lawsuits filed by state attorneys’ general to recover money on behalf of state citizens can be removed to federal court under the Class Action Fairness Act (CAFA).
Why does Hood matter? Significantly, the fight is not over whether these cases can be brought at all, but instead whether they proceed in federal court rather than state court. As business defendants know well, many state courts have a long and distressing history of tolerating abuses of the class-action device (or analogous procedures like mass actions and representative proceedings). Indeed, it was in response to that phenomenon that Congress enacted CAFA in 2005. And many parens patriae lawsuits bear some of the same hallmarks as class-action lawsuits. After all, state attorneys general routinely retain private class action lawyers to bring the litigation—Hood is a great example—and frequently the apparent goals of the case are (1) to recover money on behalf of individual consumers (whether paid to those consumers or into the state’s coffers) and (2) to secure attorneys’ fees for the private lawyers driving the litigation.
In short, when these state AG lawsuits are in effect prosecuted in state court by the private plaintiffs’ class action bar, the same kinds of abuses that led Congress to pass CAFA are implicated. Thus, as a policy matter, the real question should be: What do state attorneys general—or more to the point, their retained outside counsel—have to fear from a level playing field in federal court?
As I watched the oral arguments, it seemed clear that policy concerns about the misuse of parens patriae actions were on the minds of at least some of the Justices. That said, most of the questioning at oral argument focused on whether the state AG lawsuit at issue—in which the state seeks restitution of excess money paid due to allegedly fixed prices in violation of state antitrust law—qualified as a “mass action” under CAFA. On that legal question, which is one that has divided the circuits, my take is that the Justices’ questions at argument did not clearly signal which way the Court will go.
That said, I have a number of takeaways from the argument (transcript available here)).
First, many Justices were concerned with how any money recovered by the state AG would be allocated and distributed. Counsel for Jim Hood, the Mississippi attorney general, asserted that “the restitution claim seeks recovery to the State of the money, not to consumers in Mississippi,” and that it was likely that any such money would end up in the state treasury. But as Justice Breyer asked in one of his questions, the language of the relevant Mississippi statute refers to ordering defendants “to restitute any and all moneys for the purchases of its citizens”—and so even if the money was “given to the State, the restitution is for individual purchases of individual citizens,” meaning that “you better have a list of the individual people who bought something.” If so, Justice Breyer continued, that fact might support the companies’ argument that the state is really “pursuing” the claims of “individual people.” (Or, put another way, the individual consumers might be seen as the real parties in interest because the subject matter of the litigation comprises alleged antitrust violations as to those consumers’ particular purchases.) Thus, that approach sounds a lot like seeking to try many individual consumers’ antitrust claims jointly in the same action, which—roughly speaking—is a substantial part of test for whether a set of claims qualifies as a “mass action” that is removable under CAFA.
Second, there was a great deal of debate over whether a state AG’s lawsuit actually does propose to try claims jointly “on the ground that the plaintiffs’ claims involve common questions of law or fact,” as CAFA puts it. Justice Kagan pushed the companies’ counsel on this issue, contending that, as a procedural matter, the state did not have to demonstrate affirmatively that such “common questions of law and fact” truly existed. Justice Kagan seemed to be of the view that, if the state AG did not have to meet that hurdle, the text of CAFA’s mass-action provision would not be triggered.
Third, Chief Justice Roberts focused on the fact that parallel private class-action lawsuits had been filed involving similar allegations, and that settlements had been reached in those lawsuits that called for companies to pay money damages. (It is fairly common for parens patriae lawsuits to be filed by state AGs after or alongside private class actions.) This fact led the Chief Justice to point out “that there is nothing to prevent 50 attorneys general . . . from saying, every time there is a successful class action as to which somebody in my state purchased one of the items, we are going to file a parens patriae action” in which “the complaint is going to look an awful lot like the class action complaint.” If so, he noted, “it would make no sense for a defendant in a class action brought by consumers to ever settle the case,” because the business is “going to have to pay twice”— to settle the private class action and to resolve the state’s lawsuit. That problem would raise practical concerns about judicial administration that could be solved if state AG actions were removable to federal court, where presumably they would be joined or consolidated through the MDL process with private class actions filed in or removed to federal court.
Of course, the ultimate resolution of these troubling policy concerns depends upon how the Supreme Court interprets CAFA. A number of the Justices seemed sympathetic to the companies’ argument that “the driving force behind [CAFA] was to put interstate claims of national importance into Federal court.” And surely at least some Justices agree that these state AG lawsuits look like and quack like the types of class and mass actions that were susceptible to state court abuses. But that does not necessarily mean that the Court will find these state AG lawsuits subject to removal. As Justice Scalia archly observed: “Sometimes Congress doesn’t do it right. … Sometimes, they try to catch everything, but the language they use doesn’t do it.”
Did Congress get it right here? We’ll be waiting for the Supreme Court’s answer.
In practice, the most significant change in modern litigation has been the dramatic increase in electronic discovery costs. As the amount of electronically stored information has skyrocketed over the past two decades, the burden on parties (chiefly businesses) to retain, review, and produce that information in litigation has exponentially increased as well.
Recognizing that reality, the federal Judicial Conference’s Advisory Committee on Civil Rules has recently issued a preliminary draft of proposed amendments to the Federal Rules (pdf) that, if adopted, would take some modest steps towards ensuring greater balance in the discovery process.
A number of interested parties will make their views known through the public comment process that must take place before proposed amendments to the Civil Rules are finally approved for transmission to Congress.
Earlier today, a subcommittee of the Senate Judiciary Committee joined the debate by holding a hearing on the proposed amendments. The title of the hearing reflects a certain point of view: “Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?”
Our colleague Andy Pincus (who often posts on the blog) was asked to testify about the proposed amendments from the perspective of a lawyer who represents businesses that are concerned with e-discovery. As Andy explains in his testimony (pdf),
- The cost of the U.S. legal system – which is growing significantly as a result of electronic discovery – is increasingly producing outcomes unrelated to the merits of cases, but rather tied to the defendants’ litigation costs. A key barrier to foreign investment in the United States is the concern, expressed repeatedly by leaders of non-U.S. businesses, about excessive litigation costs in our country. These costs also make it more difficult for U.S. companies to compete with businesses headquartered in other countries.
- The tremendous growth in electronically stored information – combined with discovery rules formulated for the typewriter-and-paper era – have produced an exponential growth in discovery-related litigation costs. A recent independent study found a median cost of $1.8 million per case for producing electronically stored information, and companies must incur additional costs, in the millions of dollars, to preserve electronic information that might be demanded in discovery.
- The principal proposed amendment relating to the scope of permissible discovery simply moves a standard already in the Rule – requiring that discovery be proportional to the needs of the case – in order to give it increased emphasis. As the Advisory Committee observed, “[t]he problem is not with the rule text but with its implementation – it is not invoked often enough to dampen excessive discovery demands.” The proposal is designed to remedy that deficiency, and hopefully it will have that effect.
- The amendments also would modify the provisions of the current rules establishing presumptive limits on some forms of discovery, modestly reducing existing limits on depositions and interrogatories and establishing a new presumptive limit for requests for admissions. The proposed limits are based on information regarding the norms in most federal court litigation, and the Advisory Committee’s eminently reasonable conclusion that “it is advantageous to provide for court supervision when the parties cannot reach agreement in the cases that may justify a greater number.” Nothing prevents a court from allowing a greater number of discovery requests upon a proper showing.
- Finally, the current vague and uncertain standard for determining when sanctions should be imposed for failure to preserve electronic information is forcing companies to incur very substantial costs to “over-preserve” electronic information. The proposed amendments address this problem by replacing the existing rule with a new, somewhat clearer standard. Two modifications to the proposal would significantly increase the chances that it will have a significant effect in reducing the over-preservation costs that now plague businesses and other organizations.
We’ll continue to watch the progress of the proposed amendments to the Civil Rules, which (if adopted) hopefully will have a salutary impact on the e-discovery costs that businesses face when defending against class actions.
For weeks, class-action practitioners have been waiting to see whether the Supreme Court would grant review in Marek v. Lane, a case involving a challenge to the cy pres component of the class settlement of the Facebook “Beacon” litigation. The Court did not, but Chief Justice Roberts issued a rare statement respecting the denial that sounded a warning to everyone involved in class-action settlements: At least some Justices are on the lookout for a case in which to address the propriety of cy pres settlements.
Here’s the background. The plaintiffs alleged that Facebook’s Beacon program violated a host of federal and state privacy laws. The parties reached a settlement requiring Facebook to pay up to $9.5 million to resolve the case, with $6.5 million to be paid in the form of cy pres relief to a new charitable foundation that would be established to promote online privacy. The settlement did not provide for the distribution of funds to any of the absent class members; the parties agreed that any payments to individual class members would have been so small as not to be worth writing checks. The district court ultimately approved the settlement and awarded plaintiffs’ counsel $2.36 million in fees and expenses and granted incentive payments to the named plaintiffs. The Ninth Circuit affirmed and denied en banc review over the dissent of six judges.
An objector, Megan Marek, petitioned for a writ of certiorari, represented by (among others) Ted Frank of the Center for Class Action Fairness. Marek sought review of whether a settlement featuring “a cy pres remedy that provides no direct relief to class members” is “fair, reasonable, and adequate”—as required by Rule 23.
As noted above, the Supreme Court denied review. But the Chief Justice’s statement respecting the denial of certiorari is well worth a read; it is a warning shot that—at some point—the Court may take up the question whether (and under what circumstances) cy pres is an appropriate way to settle class actions.
Chief Justice Roberts explained that the Facebook case was not the right vehicle for addressing the issue because “Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue.” Another case, the Chief Justice suggested, might “afford the Court an opportunity to address more fundamental concerns surrounding the use of [cy pres] remedies in class action litigation.” According to the Chief, this non-exclusive list of concerns includes:
- “when, if ever, such relief should be considered”;
- “how to assess its fairness as a general matter”;
- “whether new entities may be established as part of such relief,” and, “if not, how existing entities should be selected” to receive cy pres funds;
- “what the respective roles of the judge and parties are in shaping a cy pres remedy”; and
- “how closely the goals of any enlisted organization must correspond to the interests of the class.”
These questions—which the “Court has not previously addressed”—range from the operational details of how cy pres works to the fundamental question whether cy pres is permissible at all. And thus, while Ted Frank’s petition did not succeed in getting review of the Facebook settlement, there is no question that cy pres is now on the Supreme Court’s radar screen. Because “[c]y pres remedies … are a growing feature of class action settlements,” the Chief Justice opined that “[i]n a suitable case, this Court may need to clarify the limits on the use of such remedies.”
What does this mean for companies facing class actions and the lawyers who defend them? Certainly any defendant who agrees to cy pres relief in a class settlement should be prepared for potential objections—and, if the most tenacious objectors are involved, for the possibility that those objectors will seek appellate and Supreme Court review. If defendants agree to cy pres settlements, those settlements should be negotiated and crafted with Chief Justice Roberts’ questions in mind. Within the world of cy pres settlements, there is a wide spectrum of possibilities, and the less troubling the features of such a settlement might appear to courts, the less likely it is that the Supreme Court will view the case as an appropriate vehicle for review.
There is a second issue lurking in the background of the Chief Justice’s opinion. In response to defendants’ arguments that class certification is improper because a class is unascertainable or a trial would be unmanageable, plaintiffs often argue that it doesn’t matter whether class members can be identified or cross-examined at trial, because so long as aggregate liability can be determined, any funds that can’t be distributed to individual class members can be paid out through a cy pres remedy. Yet that premise is open to debate: Cy pres payments in litigated class actions are exceptionally rare—in part because class actions that go to trial are so infrequent—and a number of courts have either concluded or suggested that defendants cannot be forced to make cy pres payments in the context of a litigated class action. Some of the questions in Chief Justice Roberts’ opinion indicate that he may be receptive to such arguments in an appropriate case.
The California Supreme Court has a long history of inventing new rules—either from common law or as “glosses” on statutes—to invalidate arbitration agreements entered into by consumers and employees. For example, in 2005, that court announced a new unconscionability rule—the“Discover Bank” doctrine, which was named after one of the parties to the case—that effectively blocked enforcement of every consumer arbitration agreement that did not permit class procedures. The U.S. Supreme Court’s landmark decision in AT&T Mobility LLC v. Concepcion held that the Federal Arbitration Act (“FAA”) preempted the Discover Bank rule.
Will the California Supreme Court faithfully apply Concepcion and the U.S. Supreme Court’s other recent rulings overturning lower courts’ refusals to enforce arbitration agreements? Or will it try to formulate new grounds for prohibiting arbitration, requiring the U.S. Supreme Court to intervene yet again to vindicate the Federal Arbitration Act’s “liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” With four significant arbitration cases now pending before the California Supreme Court, we are likely to find out in the next 12 to 24 months.
The first of these decisions, handed down on October 17 in Sonic-Calabasas A, Inc. v. Moreno (pdf)—in which our firm filed an amicus brief (pdf)—contains a distinctly mixed message. In response to the U.S. Supreme Court’s order granting certiorari and vacating and remanding the case in light of Concepcion, the California Court overturned its own prior ruling invalidating the arbitration agreement, correctly holding that its original rationale could not stand. In an opinion by Justice Liu, the Court went on to discuss—although not explicitly mandate—a brand-new approach to unconscionability analysis that reintroduces the precise legal principle that the U.S. Supreme Court held preempted in Concepcion and rejected again this year in American Express Co. v. Italian Colors Restaurant. And it does so through an unconscionability standard specially constructed to apply only to arbitration contracts, notwithstanding the FAA’s express preemption of arbitration-specific contract enforcement standards.
Did the California Supreme Court, finding its prior decision clearly precluded by Concepcion, decide to create a new basis for refusing to enforce arbitration agreements that is different in appearance but the same in effect as its now-invalid ruling? The court’s musing about unconscionability doctrine is not tethered to any holding, because the court specifically leaves the question of unconscionability for determination on remand. And the court repeatedly says that its new analysis is simply “one factor” that could be considered in the unconscionability inquiry.
Even more important, the majority’s musing does not actually require a lower court to do anything in any particular case. As Justice Corrigan, who joined the majority, explained in her concurring opinion, the decision “does not require trial courts to adopt a new procedure or analytic approach”; rather “[c]onsiderations outlined in the majority’s opinion may be relevant to [unconscionability] analysis, but lower courts retain discretion to weigh these considerations as appropriate in each particular case.” That qualification is important, because if a California court were to apply this new test to invalidate an arbitration agreement, that ruling plainly would be subject to reversal on the ground that such state-law rulings are preempted on multiple grounds by the FAA.
Companies defending arbitration clauses in California now must be prepared to explain why, as a matter of California law, courts should not—indeed, must not—rest an unconscionability finding on this new analysis, as well as why a refusal to enforce an arbitration agreement based on the California Supreme Court’s new rationale would violate the FAA. If the California courts do not heed those warnings, the state’s law of unconscionability is on track for a return trip to the U.S. Supreme Court.
We discuss the Sonic decision in much greater depth here.
We recently noted that the Ninth Circuit had granted a Rule 23(f) petition in Chen v. Allstate Insurance Co.—on the issue whether a named plaintiff can refuse an offer of judgment for full relief and persist in litigating a class action—and was expected to issue a briefing schedule soon. Leaving aside the substance of the case, there is nothing unusual about the practice the Ninth Circuit followed in Chen. That is standard operating procedure virtually everywhere, although in a few rare instances courts of appeals have ordered briefing and argument on both the Rule 23(f) petition and the merits of the class certification ruling. E.g., In re Rail Freight Fuel Surcharge Antitrust Litig. (pdf), 725 F.3d 244 (D.C. Cir. 2013); Tilley v. TJX Cos., 345 F.3d 34, 36 (1st Cir. 2003). See also Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 141 (4th Cir. 2001) (after hearing argument on the Rule 23(f) papers, the court granted the petition and vacated the class certification order).
The Seventh Circuit is different. Sometimes it will follow grant a Rule 23(f) petition and order briefing on the merits. See, e.g., Abbott v. Lockheed Martin Corp. (pdf), 725 F.3d 803 (7th Cir. 2013); McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, 672 F.3d 482 (7th Cir. 2012); Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012).
But in many cases it skips the second step: it grants the petition and rules on the merits at the same time, based on only the parties’ Rule 23(f) papers and without oral argument. See, e.g., Hughes v. Kore of Ind. Enters. (pdf), 2013 WL 4805600, at *1 (7th Cir. Sept. 10, 2013); Butler v. Sears, Roebuck & Co., 702 F.3d 359 (7th Cir. 2012); Creative Montessori Learning Ctrs. v. Ashford Gear LLC (pdf), 662 F.3d 913, 915 (7th Cir. 2011); CE Design Ltd. v. King Architectural Metals, 637 F.3d 721, 722–23 (7th Cir. 2011); Pella Corp. v. Saltzman, 606 F.3d 391, 393 (7th Cir. 2010); Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010).
The parties have no way of knowing which procedure the Seventh Circuit will use in any given case—it depends entirely on the discretion of the judges who happen to be on the motions panel when the court considers the Rule 23(f) petition. The parties do not learn which approach the court will follow in a particular case until it issues its decision on the petition.
The Seventh Circuit’s unique approach to handling Rule 23(f) petitions has significant implications for parties filing and responding to Rule 23(f) petitions in that court. Most importantly, the parties should endeavor to make all of their merits arguments in their Rule 23(f) papers, because they may not get another chance. This is often difficult; the petition and response are limited to 20 pages each, and the petitioner will not have a right to file a reply brief (although petitioners occasionally are given leave to file a reply). Moreover, respondents should be wary of following a strategy of not responding to a Rule 23(f) petition, on the theory that the decision below is obviously correct or that responding may make the case seem more worthy of immediate review. In at least two cases where there was no response to a Rule 23(f) petition, the Seventh Circuit has granted the petition and overturned the district court’s ruling, reversing decertification of a class in Hughes—a controversial recent decision by Judge Posner that the plaintiffs’ bar has been citing with regularity—and vacating class certification in Creative Montessori Learning Centers.
At this point, some 15 years after the adoption of Rule 23(f), it seems unlikely that other circuits will opt to embrace the Seventh Circuit’s approach. But in the Seventh Circuit, the practice of granting a Rule 23(f) petition and ruling on the merits simultaneously shows no sign of abating.
One final practitioners’ note: The Seventh Circuit follows a similar practice when it comes to appeals under the Class Action Fairness Act of orders granting or denying remand, so the same caveats apply equally in that context. Examples include Knudsen v. Liberty Mut. Ins. Co., 435 F.3d 755, 758 (7th Cir.2006), and In re Safeco Ins. Co. of Am. (pdf), 585 F.3d 326, 327 (7th Cir. 2009).
Most people are familiar with Fig Newtons, an iconic cookie that has been around for over a century (at least according to its Wikipedia entry). There are many other popular versions of Newtons—albeit of more recent vintage—such as raspberry and strawberry Newtons. These fruit Newtons drew the ire of plaintiff Monique Manchouck, who filed a false advertising class action in the Northern District of California—which has become known as the nation’s “Food Court” —against the makers of the cookies.
What was her beef? According to her complaint, the product packaging states that Newtons are “made with real fruit.” Yet, the plaintiff argued, the cookie filling contained “merely mechanically processed fruit puree, which is not ‘real fruit.’” And without that alleged misrepresentation, she argued, she “would not have purchased” the Newtons—or at least, “would not have paid a ‘premium price’” for them.
Alas, Judge Alsup found the lawsuit less appetizing than the plaintiff had hoped. After concluding that the plaintiff’s claimed injury satisfied Article III’s constitutional standing requirements, he tossed the claim on the merits, explaining: “Plaintiff has not plausibly alleged why” a “reasonable consumer” would think that “the statement ‘made with real fruit’ would not include mechanically separated fruit puree”
Judge Alsup gave four reasons why he believed that the plaintiff’s lawsuit “strains credulity”:
First, the complaint does not dispute that the cookies contain real fruits in purée form. … Second, even the most narrow definition of “real fruit” does not exclude fruit that has been strained or blended into puréed form. Purée Definition, American Heritage Dictionary (5th ed. 2011). Third, the packaging that said, “made with real fruit,” also prominently displays a depiction of the cookies’ puréed fruit filling …. Fourth, the amended complaint admits that the list of ingredients on the packaging serves notice to consumers that the products contain, “Raspberry Purée” and “Strawberry Purée” respectively . . .
Judge Alsup’s bottom line: “It is ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton.” Accordingly, he dismissed the case without leave to amend.
The plaintiff has filed a notice of appeal. Will common sense win out in the Ninth Circuit? We’ll be watching!
Today, Mayer Brown filed a pair of certiorari petitions that challenge efforts by two federal appellate courts to narrow the Supreme Court’s recent class-action decisions in Comcast Corp. v. Behrend and Wal-Mart Stores, Inc. v. Dukes to tickets good for a single ride only. The Supreme Court previously remanded both cases for reconsideration after Comcast, but both courts of appeals reinstated their decisions. The certiorari petitions explain why those decisions are wrong: both putative class actions are beset by individual liability and damages questions and are filled with uninjured class members.
In one case, Sears, Roebuck and Co. v. Butler (pdf), Sears challenges a Seventh Circuit decision allowing class actions to proceed based upon an allegation that Kenmore-brand front-loading clothes washers have a design defect that causes musty odors and a manufacturing defect that produces false error codes. In an opinion by Judge Posner, the Seventh Circuit ruled that the supposed efficiency of a class trial on the supposedly common “defect” issue justified class certification, even though only a small minority of class members experienced musty odors or false error codes, the suit raises numerous individual questions, claims are brought under the laws of six different states, and the supposedly common question would not yield common answers.
In the other case, Whirlpool Corporation v. Glazer (pdf), Whirlpool challenges a Sixth Circuit decision allowing a class action on behalf of Ohio residents based on allegations that Whirlpool front-loading clothes washers have a design defect that can cause moldy odors and that Whirlpool did not adequately warn buyers about the defect. The Sixth Circuit swept aside the many individual liability questions—including whether a class member was among the small percentage who experienced any moldy odors—by using a “premium price theory” never recognized by Ohio law that assumes that every purchaser paid a uniform overcharge regardless of the purchaser’s actual experience with the washer. One point is especially worthy of note: Even though the Supreme Court had vacated and remanded the original Sixth Circuit decision in light of Comcast, the Sixth Circuit’s opinion on remand focused far more heavily on a different Supreme Court precedent, Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, from the securities class action context.
These cases are of obvious importance to the growing number of suits seeking to litigate supposed product defects on behalf of all purchasers when the alleged defects have only manifested in a relative handful of products owned by a small fraction of putative class members. More broadly, the cases present the Supreme Court with an opportunity to clarify the confusion wrought by the Sixth and Seventh Circuit’s decisions over how to properly apply Comcast, Wal-Mart, and the Court’s other class-action decisions.
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 23(b)(3)’s requirement that a class action be superior to other methods for resolving the controversy. Either way, courts agree that a class is ascertainable only if the class definition is sufficiently definite to make it administratively feasible for the court to determine by reference to objective criteria whether a particular person is a member of the putative class.
In two recent opinions—Hayes v. Wal-Mart Stores, Inc. (pdf), 2013 WL 3957757 (3d Cir. Aug. 2, 2013), and Carrera v. Bayer Corp., 2013 WL 4437225 (3d Cir. Aug. 21, 2013)—the Third Circuit vacated class certification orders because the plaintiffs hadn’t met their burden of proving that class members were ascertainable. These decisions are a goldmine for class action defendants: They provide great examples of the ascertainability requirement in action.
We’ve previously written about the petition for interlocutory appeal in Chen v. Allstate Insurance Co., a TCPA class action that involves an important issue for class action practitioners: can a named plaintiff refuse an offer of judgment for full relief and continue pursuing a class action? The Ninth Circuit recently granted (pdf) the petition and can be expected to issue a briefing schedule soon. We’ll continue monitoring this important case and report any developments