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 …
Tag Archives: Third Circuit
Two Recent Appellate Decisions Illustrate Divergent Approaches To Spokeo
Hundreds of lower courts have interpreted and applied the Supreme Court’s decision in Spokeo, Inc. v. Robins over the past ten months. We will provide a more comprehensive report on the post-Spokeo landscape in the near future, but the …
Ninth Circuit rejects meaningful ascertainability requirement for class certification, cementing deep circuit split
Can you have a class action if class members can’t reliably be found? That question is at the heart of the debate over ascertainability—one that has divided the federal courts. Earlier this week, the Ninth Circuit weighed in, holding …
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 …
Did The Ninth Circuit Just Give Plaintiffs—But Not Defendants—An Automatic Appeal From Class Certification Orders?
[Editors’ note: Today we’re featuring a guest post by Tim Fielden, who is in-house counsel at Microsoft. His post spotlights an emerging—and important—issue in class-action litigation.]
In two recent decisions, the Ninth Circuit has carved out a new path …
Third Circuit Hears Oral Argument Over Whether FTC Has Authority To Regulate Data Security
After much anticipation, the Third Circuit heard oral arguments (audio) last Tuesday in the interlocutory appeal in FTC v. Wyndham Worldwide Corp. We have written previously about this case, which likely will be a significant one in the …
U.S. Chamber of Commerce Files Amicus Brief on Ascertainability in Key Ninth Circuit Case
As readers of our blog know, ascertainability is one of the most contentious issues in class action litigation these days. Ascertainability is the main issue presented in Jones v. ConAgra Foods, No. 14-16327, a pending Ninth Circuit case in …
Third Circuit to Consider FTC’s Authority Over Data Security Standards in FTC v. Wyndham
We have written previously about the FTC’s action arising out of the data breach suffered by the Wyndham hotel group, and the company’s petition for permission to pursue an interlocutory appeal regarding the FTC’s use of its “unfairness” jurisdiction to …
Wyndham Seeks Immediate Appeal Over Whether FTC Has Authority To Regulate Data Security
We have written previously about FTC v. Wyndham Worldwide Corp., currently pending in federal district court in New Jersey, and its potential significance for data security class actions. A recent opinion in that case has brought it back into …
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 …
Third Circuit Rejects Effort At End Run Around The Ascertainability Requirement
We previously wrote about the Third Circuit’s decision in Carrera v. Bayer Corp., which reversed a district court’s class-certification order because there was no reliable way to ascertain class membership—indeed, no way to identify who was a member of …
Class Action Can’t Be Remanded To State Court Just Because The Plaintiff Says It’s Uncertifiable
When was the last time you saw a plaintiffs’ lawyer seeking to represent a class argue that the class couldn’t be certified? Readers might wonder whether this is a trick question. In a sense, it is. In Hoffman v. Nutraceutical …
Supreme Court Picks Up ERISA Stock-Drop Case: What’s Next?
In what circumstances should you be permitted to invest your retirement savings in your own employer’s stock? We have blogged before about an ERISA class action pending at the Supreme Court regarding when plan fiduciaries must prevent participants from investing …
Solicitor General to Supreme Court: Please Set The Rules For ERISA Stock-Drop Class Actions
This past March, the Supreme Court asked the Solicitor General to weigh in as to whether two rather technical questions about ERISA stock-drop actions are worthy of the Court’s attention. See Fifth Third Bancorp v. Dudenhoeffer, No. 12-751. The …
Third Circuit Rulings Give Teeth to Ascertainability Requirement for Class Certification
The “ascertainability” requirement for class certification is a crucial safeguard for both defendants and absent class members. There is some debate about its origin: some courts have held that it is implicit in Rule 23 that class members must be …
Third Circuit Rules that TCPA Authorizes Consumers To Retract Consent to Cell Phone Calls
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 …
Will the Ninth Circuit Revisit the Issue of Whether an Offer of Judgment to the Named Plaintiff Can Moot a Class Action?
Before the Supreme Court’s decision last Term in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the Ninth Circuit had held that a named plaintiff can continue to pursue a putative class action even after the defendant …
Can Plaintiffs Gerrymander Mass Actions to Avoid Federal Jurisdiction?
The Class Action Fairness Act of 2005 (“CAFA”) provides that defendants may remove certain mass actions—cases that are proposed to be tried jointly—so long as the aggregate amount at stake is at least $5 million and there are 100 or …
US Chamber of Commerce Takes Up Recess Appointments Fight in Supreme Court
We’ve blogged about the D.C. Circuit’s ruling in Noel Canning v. NLRB (pdf) that President Obama’s three 2012 recess appointments to the National Labor Relations Board are unconstitutional. The consequence of that decision was to invalidate the NLRB decision against …
Third Circuit Rejects South Carolinan’s Effort To Bring Nationwide False Advertising Class Under New Jersey Law
The Ninth Circuit’s decision last year in Mazza v. American Honda Motor Co. [666 F.3d 581] (a case I argued) made it more difficult to sustain a nationwide class action under California consumer protection laws. Applying California “governmental interest” choice-of-law …
Eighth Circuit Holds that a Plaintiff who Settles Individual Claims Lacks Standing to Challenge Denial of Class Certification
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 …
Supreme Court Holds that Plaintiff Whose Individual Claims Were Mooted by an Offer of Judgment Lacks Standing to Maintain FLSA Collective Action
The 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. § …
Is There A Problem With Settlement Class Actions?
A 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 …
Third Circuit Rejects Class Settlement Because Class Fund Went to Class Counsel and Cy Pres Rather than Class Members
We’ve blogged before about federal courts’ increasing reluctance to approve class settlements that involve a significant cy pres component. The Third Circuit’s recent decision in In re Baby Products Litigation (pdf) is the latest example of this trend.
Class counsel …
