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: Supreme Court
Article on Alien Tort Statute after Kiobel
Posted in Class Action Trends, U.S. Supreme CourtWe’ve previously discussed the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. The American Lawyer Litigation Daily has just published a column by my colleague, Andy Pincus, responding to another columnist’s lament that Kiobel has rendered claims under the Alien Tort Statute “a zombie doctrine—not quite alive and not quite dead.” Andy provides a… Continue Reading
Webinar on Arbitration And Class Actions Two Years After Concepcion
Posted in Arbitration, U.S. Supreme CourtLast Saturday marked the two-year anniversary of the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, a decision that has had an enormous impact on the world of class-action litigation. To date, Concepcion has been cited in over 650 decisions, and (for the most part) has been applied broadly to enforce agreements to arbitrate… Continue Reading
U.S. Seeks Supreme Court Review of Noel Canning v. NLRB in an Effort to Rehabilitate Recess Appointments to NLRB (and CFPB)
Posted in Employment, U.S. Supreme CourtWe’ve previously written about the D.C. Circuit’s decision in Noel Canning v. NLRB, which held that President Obama’s three recess appointments in 2012 to the National Labor Relations Board (NLRB) are unconstitutional. The Solicitor General has just filed a petition for certiorari, asking the Supreme Court to review the D.C. Circuit’s decision. The Obama administration’s… Continue Reading
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
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 CourtAn 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
Supreme Court Hears Argument In Class Arbitration Case, Oxford Health Plans v. Sutter
Posted in Arbitration, U.S. Supreme CourtThe Supreme Court heard oral argument earlier today in Oxford Health Plans LLC v. Sutter, No. 12-135, on whether the Federal Arbitration Act (“FAA”) allows an arbitrator to interpret an arbitration agreement that does not affirmatively authorize class arbitration to permit use of that procedure. For some background on Oxford, please see our prior blog… 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
Supreme Court Rejects Plaintiffs’ Efforts To Avoid Federal Jurisdiction By “Stipulating” To Limit Class Recoveries To Under $5 Million
Posted in U.S. Supreme CourtEarlier today, the Supreme Court issued a unanimous decision in Standard Fire Insurance Co. v. Knowles, No. 11-1450, that should make it a lot harder for plaintiffs and their counsel to avoid federal-court jurisdiction over significant class actions. The Class Action Fairness Act of 2005 authorizes the removal of class actions to federal court when,… Continue Reading
Are Class Actions Unconstitutional? Yes (At Least Sometimes)
Posted in Class CertificationA few months ago, my colleagues Kevin Ranlett, Phil Dupré, and I began writing a six-part series for Inside Counsel on potential constitutional challenges to class-action lawsuits. The series is now complete, and so I wanted to provide readers with links to our articles. In addition to our overview piece on the subject, we have addressed… Continue Reading
Supreme Court Appears Poised To Reject Second Circuit’s Articulation of “Effective Vindication Of Federal Statutory Rights” Defense For Avoiding Class Arbitration Waivers
Posted in Arbitration, U.S. Supreme CourtYesterday, my colleagues and I attended oral arguments before the Supreme Court in American Express Co. v. Italian Colors Restaurant, No. 12-133, in which we submitted an amicus brief on behalf of business groups. As readers of the blog know, the issue in American Express is whether plaintiffs may avoid their agreements to arbitrate… Continue Reading
Supreme Court Holds that Securities Fraud Plaintiffs Need Not Show Materiality at Class Certification
Posted in Class Certification, SecuritiesToday, in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, No. 11-1085, the Supreme Court held that proof of materiality is not a prerequisite for class certification in a securities fraud class action under Section 10(b), even though materiality is a predicate of the fraud-on-the-market presumption of reliance. The opinion for the majority of… Continue Reading
Supreme Court to Decide Fair Labor Standards Act Case
Posted in Employment, U.S. Supreme CourtEmployers frequently face “donning and doffing” collective actions under the Fair Labor Standards Act (FLSA). In these lawsuits, plaintiffs accuse employers of failing to pay employees for off-the-clock time spent doffing and donning uniforms or safety gear at the beginning and end of every shift. Today, the Supreme Court granted review in Sandifer v. United… Continue Reading
Supreme Court to Decide Scope of Preemption of State-Law Securities Class Actions by SLUSA
Posted in Securities, U.S. Supreme CourtOn Friday, the Supreme Court granted review in three consolidated cases: Chadbourne & Parke LLP v. Troice, No. 12-79, Willis of Colorado v. Troice, No. 12-86, and Proskauer Rose LLP v. Troice, No. 12-88. The Court’s decision will clarify when the federal Securities Litigation Uniform Standards Act (“SLUSA”) preempts state-law securities class actions. After Congress… Continue Reading
CAFA Showdown in the Supreme Court: Today’s Oral Argument In Standard Fire Insurance Co. v. Knowles
Posted in U.S. Supreme CourtThis morning I attended the oral argument before the Supreme Court in Standard Fire Insurance Co. v. Knowles, the first major case in which the Court will address the provisions of the Class Action Fairness Act of 2005 (CAFA). For class-action lawyers on both sides, this case has been seven years in the making. From… 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
Supreme Court Grants Review in Class Arbitration Case, Oxford Health Plans LLC v. Sutter
Posted in Arbitration, U.S. Supreme CourtTwo years ago, the Supreme Court held “that a party may not be compelled under the [Federal Arbitration Act] to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen v. AnimalFeeds International Corp., 130 S. Ct. 1758, 1775 (2010) (emphasis in original). But the… Continue Reading
Supreme Court Roundup: The Oral Arguments in Comcast and Amgen
Posted in Class Certification, U.S. Supreme CourtThe Supreme Court’s 2012-13 term is shaping up to be an important one for class action law. Last month, the Court heard argument on the same day in two potentially significant cases. Comcast Corp. v. Behrend concerns whether plaintiffs may obtain class certification without introducing admissible evidence (including expert testimony) that damages can be proven… Continue Reading
Supreme Court Summarily Reverses State Court For Failure To Follow High Court’s Arbitration Precedents
Posted in Arbitration, U.S. Supreme CourtWe usually don’t report on Supreme Court cases that don’t involve class action issues. That said, regular readers of the blog know that the enforceability of arbitration agreements has become a critical issue in class action defense. For that reason, we wanted to apprise you of the Supreme Court’s latest arbitration decision in Nitro-Lift Technologies,… Continue Reading
Supreme Court Hears Oral Argument On Whether Materiality Must Be Proven At The Class Certification Stage In Securities Class Actions
Posted in Class Certification, Securities, U.S. Supreme CourtThe Supreme Court recently heard oral argument in a case that may have a significant impact on how district courts resolve class certification fights in securities fraud cases. The issue in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds is whether a class can be certified if the alleged misrepresentations constituting the fraud are… 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
Comcast Corp. v. Behrend: Upcoming Supreme Court Case Is Critical to Antitrust Class Actions
Posted in Class Certification, U.S. Supreme CourtAlthough the class action bar in general is eagerly awaiting the Supreme Court argument in Comcast Corp. v. Behrend (No. 11-864)—which will be argued November 5th—antitrust practitioners in particular have a keen interest in the case. The issue presented is whether a district court may certify a class action without first resolving whether an expert… 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