An important and recurring issue in class actions is whether a district court must consider particular merits issues when deciding whether to certify a class under Federal Rule of Civil Procedure 23. Today, in Comcast Corp. v. Behrend (pdf), No. 11-864, the Supreme Court reversed the certification of an antitrust class action because the district court… Continue Reading
Tag Archives: Fed. R. Civ. P. 23(b)(3)
Lipton v. Chattem, Inc.: Federal District Court Denies Certification On Adequacy Grounds
Posted in Adequacy, Class Certification, Predominance, SuperiorityThe 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), SuperiorityThe 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
Balthazor: Individualized Questions as to Consent Torpedo Attempt to Certify TCPA Class Action
Posted in Class Certification, PredominanceReaders of this blog are likely familiar with the Telephone Consumer Protection Act (“TPCA”), the law that prohibits certain types of calls using an automatic telephone dialing system or prerecorded message. The plaintiffs’ bar has filed numerous class actions seeking statutory damages under the TCPA. Businesses facing these actions should be alert for opportunities to… Continue Reading
Expelliarmus! Eleventh Circuit Disarms False-Advertising Class Action Against Makers of Fantasy Video Game
Posted in Ascertainability, Class Certification, PredominancePlaintiffs who wish to bring product-liability and consumer-fraud class actions against businesses often overreach when defining the proposed class in order to raise the stakes—and hence the settlement pressure—on the defendant. A recent unpublished decision by the Eleventh Circuit, Walewski v. Zenimax Media, Inc. (pdf), No. 12-11843, is yet another example of the growing consensus rejecting… Continue Reading
Class Action Plaintiffs Can’t Have It Both Ways When Opposing Motions to Compel Arbitration
Posted in Arbitration, Class Certification, Motions Practice, Numerosity, Predominance, TypicalityIn litigation—as in war—it is natural to focus on winning today’s skirmish and to defer planning for battles that might not happen for weeks or months. But that shortsightedness can lead to strategic blunders—as one class action plaintiff suing Capital One Bank and credit counseling agency InCharge Debt Solutions recently learned the hard way. In King… Continue Reading
Wall Street Journal Editorial Calls for Supreme Court Review in Whirlpool Corp. v. Glazer
Posted in Appeals, Class Certification, Commonality, Predominance, U.S. Supreme CourtThe Wall Street Journal recently published an editorial urging the Supreme Court to grant the petition for certiorari (pdf) in Whirlpool Corp. v. Glazer—a petition filed by my colleagues Stephen Shapiro, Jeffrey Sarles, and Tim Bishop. The petition seeks review of a decision by the Sixth Circuit (pdf), which affirmed the certification of a class of Ohio… 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), SuperiorityThe 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, SuperiorityWe 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, SuperiorityShould 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