Another Ninth Circuit panel has roiled the class certification waters, this time rejecting a class action settlement because the district court did not conduct a meaningful analysis of predominance.…
Tag Archives: predominance
Making sense of the cascade of appellate decisions on ascertainability
We have repeatedly discussed in this space the ongoing debate among the federal courts about ascertainability—a red-hot topic in class action litigation these days. (For a more detailed look at our views on the ascertainability doctrine, see the amicus …
Court refuses to certify 5-hour Energy false-advertising class action for lack of common proof
The U.S. District Court for the Central District of California recently issued an interesting decision (pdf) denying class certification in 15 consolidated consumer class actions against the maker of 5-hour ENERGY drinks.…
Court Strikes Class Allegations in TCPA Case
The recent decision in Cholly v. Uptain Group, No. 15 C 5030, 2017 WL 449176 (N.D. Ill. Feb. 1, 2017), drives home the point—as we’ve discussed on the blog before—that sometimes the pleadings alone reveal that the requirements for …
What does Tyson Foods, Inc. v. Bouaphakeo mean for class actions?
The class action plaintiffs’ bar celebrated yesterday’s Supreme Court’s decision in Tyson Foods, Inc. v. Bouaphakeo (pdf), rejecting Tyson’s challenge to class certification. One lawyer called it “a huge David v. Goliath victory.”
But when plaintiffs’ lawyers wake up this …
Supreme Court affirms certification of FLSA collective action in Tyson Foods, Inc. v. Bouaphakeo
Under Federal Rule of Civil Procedure 23(b)(3), a court may certify a suit for damages as a class action when “there are questions of law or fact common to the class” that “predominate over any questions affecting only individual …
Ten Things Class Action Practitioners Need To Know About Potential Amendments To Federal Rule Of Civil Procedure 23
Rule 23 may be in for some major changes. The Advisory Committee has commissioned a Rule 23 subcommittee to investigate possible revisions to the class action rules. That subcommittee issued a report (pdf) discussing its progress, and recently has been …
Supreme Court to Revisit Class-Certification Standards in Tyson Foods, Inc. v. Bouaphakeo
Today, the Supreme Court granted review in what may be a major decision on the standards for class certification, Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146.…
Fourth Circuit puts teeth into ascertainability, commonality, and predominance requirements for class certification
Sometimes it’s hard to know who’s in a class without substantial individualized inquiries. Can a court certify a class of persons with allegedly similar injuries by pigeonholing the question of class membership as a question of damages to be determined …
Supreme Court Refuses To Overturn Fraud-On-The-Market Presumption, But Adjusts Presumption To Allow Evidence of Absence Of “Price Impact” At Class Certification Stage
The securities class action industry was launched a quarter-century ago when the Supreme Court recognized the so-called “fraud-on-the-market” presumption of reliance in most putative securities class actions. The result has been that—despite Congressional efforts at securities litigation reform—most securities class …
California Court Says No Need To Resolve Disputes Over Substantive Law In Evaluating Whether Class Can Be Certified
Suppose that you’re a trial court considering a motion for class certification. And suppose that the parties present you with two competing statutory interpretations. One legal standard permits the case to be adjudicated with common evidence. And the other standard …
California Supreme Court Rejects Exceptionally Poor Sampling Method, But Leaves Open Many Questions About Sampling And Class Certification
In Duran v. U.S. Bank N.A. (pdf), the California Supreme Court recently addressed an important question in the context of state-court class actions: Can plaintiffs invoke statistical sampling in an attempt to prove class-wide liability and overcome the presence of …
More Thoughts On Ascertainability And Why It Matters In Deciding Whether To Certify A Class Action
Can you have a class action if you can’t figure out who’s in the proposed class? According to many in the plaintiffs’ bar, the answer is “yes.” But as we have discussed in prior blog posts, there is an …
Class-Action Plaintiffs Must Offer Evidence Showing That They Meet Class-Certification Requirements
A recent decision denying certification of a securities-fraud class action underscores that plaintiffs must prove with evidence that they satisfy the requirements of Federal Rule of Civil Procedure 23, not merely allege that they do so or promise that …
Use the “Consumer” in Consumer Class Actions to Defeat Certification
Plaintiffs routinely bring consumer class actions under statutes that allow only consumers—not businesses—to bring claims, or that are limited to transactions solely for personal or household purposes. See, e.g., Electronic Funds Transfer Act, 15 U.S.C. § 1693a(2); …
What’s Going On With Class Actions Alleging That Businesses That Record Customer-Service Calls Are Violating California’s Invasion of Privacy Act?
Since 2006, companies based outside California have been alert to the potential burdens of class actions under California’s Invasion of Privacy Act (“CIPA”), Cal. Penal Code § 630 et seq. The laws of most states, as well as federal law, …
Two Washer Cases Provide the Supreme Court with Its Best Opportunity Since Wal-Mart v. Dukes to Make Sense of Class-Certification Standards
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” …
The Fate of Hollywood Internship Programs May Rest With the Second Circuit
Former interns used to get revenge against their employers by writing tell-all blog posts and memoirs. Now, they’re lending their names to plaintiffs’ lawyers, who then file wage-and-hour class or collective actions alleging that interns must be paid like hourly …
Twelve Amici Join Mayer Brown in Seeking Supreme Court Review of Front-Loading Washer Cases
As I have previously blogged, my colleagues and I have filed certiorari petitions in two significant cases affecting class-action litigation, Sears Roebuck & Co. v. Butler (pdf) and Whirlpool Corp. v. Glazer (pdf). The petitions challenge decisions that bless …
Mayer Brown Files Cert Petitions In Front-Loading Washer Cases
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 …
D.C. Circuit Overturns Certification of Antitrust Class Action and Requires Reconsideration in Light of Comcast Corp. v. Behrend
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 …
Ninth Circuit Overturns Certification of Overtime Class Action Because Of Foreign Statute Of Repose
It’s not all that often that a federal court of appeals reverses an order granting class certification in an unpublished opinion—much less the Ninth Circuit. But a panel of that court just did so last week in holding that a …
Do the Plaintiffs Lack Standing or Are Their Claims Simply Meritless—or Both?
Here’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 …
Supreme Court Reverses Certification of Antitrust Class Action Where Class Failed To Prove That Damages Could Be Determined On A Classwide Basis
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), …
