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Tag Archives: Fed. R. Civ. P. 23(b)(3)

Two Washer Cases Provide the Supreme Court with Its Best Opportunity Since Wal-Mart v. Dukes to Make Sense of Class-Certification Standards

Posted in Class Certification, Commonality, Predominance, U.S. Supreme Court

At its conference on January 10, the Supreme Court can get serious about fixing consumer class actions. The Justices should take up that challenge, because it will consider two certiorari petitions that seek review of class certifications—involving alleged “moldy odors” in high-tech front loading washing machines—that are prime examples of what has gone wrong with… Continue Reading

Third Circuit Rules that TCPA Authorizes Consumers To Retract Consent to Cell Phone Calls

Posted in Motions Practice

The spate of class actions under the Telephone Consumer Protection Act (TCPA) isn’t ending anytime soon. And the risks to businesses have just increased in the Third Circuit, thanks to that court’s recent ruling that the TCPA permits consumers to retract consent to receiving calls on their cell phones placed by automatic telephone dialing systems…. Continue Reading

D.C. Circuit Overturns Certification of Antitrust Class Action and Requires Reconsideration in Light of Comcast Corp. v. Behrend

Posted in Class Certification, Predominance

Class-action lawyers on both sides of the “v.” have been debating the impact of the Supreme Court’s decision earlier this year in Comcast Corp. v. Behrend. Last week, the D.C. Circuit delivered its answer in In re Rail Freight Fuel Surcharge Antitrust Litigation, the most significant opinion thus far to address Comcast. As the D.C…. Continue Reading

Supreme Court Reverses Certification of Antitrust Class Action Where Class Failed To Prove That Damages Could Be Determined On A Classwide Basis

Posted in Antitrust, Class Certification, Predominance, U.S. Supreme Court

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

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

Balthazor: Individualized Questions as to Consent Torpedo Attempt to Certify TCPA Class Action

Posted in Class Certification, Predominance

Readers 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, Predominance

Plaintiffs 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, Typicality

In 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 Court

The 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), 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