Here’s a common scenario: After unsuccessfully moving for class certification and having a petition for review under Federal Rule of Civil Procedure 23(f) rebuffed, the plaintiff wants to take another shot at an appeal. Can the plaintiff simply settle his individual claims—subject to his right to appeal the denial of class certification—so that he has a… Continue Reading
Tag Archives: Second Circuit
Supreme Court Holds That Alien Tort Statute Doesn’t Apply Extraterritorially
Posted in Class Action Trends, U.S. Supreme CourtToday, the Supreme Court issued its long-awaited decision in Kiobel v. Royal Dutch Petroleum (pdf) on the scope of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, a law that creates federal jurisdiction for civil actions brought by aliens for torts committed in violation of the law of nations or a U.S. treaty. In Kiobel,… Continue Reading
Supreme Court Holds that Plaintiff Whose Individual Claims Were Mooted by an Offer of Judgment Lacks Standing to Maintain FLSA Collective Action
Posted in Employment, U.S. Supreme CourtThe Fair Labor Standards Act of 1938 (“FLSA”) permits an employee to file a “collective action” for damages against an employer individually and on behalf of other “similarly situated” employees who later choose to join the lawsuit. 29 U.S.C. § 216(b). In Genesis Healthcare Corp. v. Symczyk, before any other employee had opted to join… Continue Reading
Is There A Problem With Settlement Class Actions?
Posted in Class Action SettlementsA new paper by Fordham law professor Howard Erichson, entitled “The Problem with Settlement Class Actions”—and a blog post about it by Andrew Trask—caught my eye. The paper uses two recent class settlements, In re AIG and Sullivan v. DB Investments, Inc., as the springboard to discuss settlement class actions. Erichson argues that the problem… Continue Reading
Do the Plaintiffs Lack Standing or Are Their Claims Simply Meritless—or Both?
Posted in Adequacy, Class Action Trends, Class Certification, Commonality, Predominance, TypicalityHere’s the situation: You’re facing a class action in federal court in which the plaintiffs define the putative class so broadly as to encompass many people who weren’t injured by the alleged wrongdoing. For example, consider a false-advertising class action on behalf of “all purchasers” of a product that the vast majority of purchasers would… Continue Reading
Second Circuit Reverses Denial Of Individual Arbitration In Title VII Class Action
Posted in Arbitration, EmploymentSince Concepcion, the plaintiffs’ bar has been exhorting courts to recognize exceptions to its holding that courts may not refuse to enforce an arbitration agreement on the ground that it precludes class actions. In the employment context, the plaintiffs’ bar thought that it had a winner with Chen-Oster v. Goldman Sachs, in which a magistrate… Continue Reading
Supreme Court Denies Review In NECA-IBEW Case
Posted in Adequacy, Class Certification, Commonality, Predominance, Securities, TypicalityWe’ve been blogging about the Second Circuit’s decision in NECA-IBEW Health & Welfare Fund v. Goldman Sachs (pdf), which held that a named plaintiff in a securities fraud suit might have standing in some situations to assert class action claims regarding securities that he or she never purchased. Yesterday, the Supreme Court denied (pdf) Goldman’s petition… Continue Reading
Plaintiffs Seek to Revive Securities Fraud Class Actions Under Second Circuit’s “Class Standing” Doctrine
Posted in Class Action Trends, SecuritiesI previously blogged about the Second Circuit’s troubling decision in NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co. (pdf), 693 F.3d 145 (2d Cir. 2012), which invented a “class standing” doctrine allowing a named plaintiff in a class action to assert Securities Act claims regarding securities that he or she never purchased. In the… Continue Reading
Are Quasi-Class Action Suits By State AGs Removable Under CAFA (Or, For Securities Fraud Cases, Barred By SLUSA)?
Posted in Antitrust, Class Action Trends, SecuritiesA number of courts recently have weighed in on a question we’ve blogged before—whether lawsuits by state attorneys general seeking restitution on behalf of private citizens are subject to removal under the Class Action Fairness Act of 2005 (pdf) (“CAFA”). These rulings have broad implications for the litigation of these quasi-class actions. They also are of… Continue Reading
DRI Amicus Brief Argues That Second Circuit’s Expansive View Of “Class Standing” In Securities Cases Should Be Rejected
Posted in Securities, U.S. Supreme CourtA few months ago, I posted about a Second Circuit decision that threatens to open the floodgates to securities class actions, NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012). In that decision, the Second Circuit ruled that even though a plaintiff in an individual action may assert… Continue Reading
Is The Second Circuit Placing A Thumb On The Scale When It Reviews Orders Granting Class Certification?
Posted in Class CertificationOne oddity of the law in the Second Circuit is the unbalanced standard of review that the court sometimes applies to class certification decisions. On a dozen or so occasions over the last twenty years, the Second Circuit has proclaimed that it is “noticeably less deferential when the district court has denied class status than… Continue Reading
Supreme Court Grants Certiorari in American Express Arbitration Case
Posted in Arbitration, U.S. Supreme CourtThe Supreme Court has just granted certiorari in American Express Co. v. Italian Colors Restaurant, No. 12-133. Earlier today, my colleague Andy Pincus previewed the issue presented to the Court, which is (in a nutshell) whether plaintiffs may avoid their agreements to arbitrate on an individual rather than class-wide basis by contending that they cannot… Continue Reading
Supreme Court Poised To Decide Whether To Grant Certiorari In Major Arbitration Case (In re American Express)
Posted in Arbitration, U.S. Supreme CourtWhen the Supreme Court convenes for its private conference today, the Justices will consider whether to grant certiorari in a case presenting one of the most significant questions regarding the meaning of the Court’s ruling in AT&T Mobility v. Concepcion that remains unresolved in the lower courts. Following the Concepcion decision, opponents of arbitration tried… 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
NECA-IBEW: Second Circuit Rules That Plaintiffs Sometimes Have Standing to Bring Class Claims Covering Securities Offerings Other Than Ones in Which They Bought
Posted in Class Certification, Motions PracticeCan a plaintiff who bought a security in one offering bring a class action on behalf of purchasers in other offerings if the plaintiff alleges a misstatement common to all of the offerings? In cases under Sections 11 and 12 of the 1933 Securities Act—particularly those involving mortgage-backed securities—the consensus view had been that a… Continue Reading
Can Plaintiffs Dodge Concepcion By Arguing That They Need Class Actions To Vindicate Federal Statutory Claims?
Posted in Arbitration, U.S. Supreme CourtSince Concepcion, the plaintiffs’ bar has been searching for ways to avoid agreements to arbitrate on an individual basis. Because their efforts have largely failed so far, the new frontrunner is the argument that class procedures are necessary to permit “vindication of federal statutory rights.” Most courts to consider the argument have rejected it, but… Continue Reading
Schnuerle v. Insight Communications: Kentucky Supreme Court Rejects “Vindication of Statutory Rights” Challenge To Agreements To Arbitrate On An Individual Basis
Posted in ArbitrationIn Schnuerle v. Insight Communications (pdf), the Kentucky Supreme Court joins a number of other courts in rejecting a key argument that the plaintiffs’ bar has been making in the wake of AT&T Mobility LLC v. Concepcion (pdf)—that arbitration agreements with class waivers should not be enforced whenever the plaintiff is able to persuade a court that… 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
Pendergast v. Sprint: Eleventh Circuit Holds That Federal Arbitration Act Preempts State-Law Attacks On Class-Action Waiver In Sprint’s Arbitration Agreement
Posted in ArbitrationSince the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the Eleventh Circuit has consistently enforced agreements to arbitrate with class waivers. Earlier this week, it did so again in a case involving Sprint’s arbitration agreement in its service contracts. See Pendergast v. Sprint Nextel Corp. (pdf), No. 09-10612 (11th Cir. Aug. 20,… Continue Reading