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Attempting to Counter a CAFA Loophole

Home Depot filed a certiorari petition in the United States Supreme Court aimed at closing an emerging loophole in CAFA jurisprudence in various circuits. According to the petition, some circuits have “narrowly construed...more

An Offer You Can Refuse

The Second Circuit Court of Appeals recently confronted (again) a situation where a defendant made an offer of judgment to the putative class representative to provide all of the relief available to the individual plaintiff....more

Pay Attention: A Class Certification Decision You Might Want To Remember

On March 16, 2017, the Southern District of California certified a class action against the manufacturer of gingko biloba and Costco Wholesale Corporation, the seller. Plaintiff alleged, on behalf of a putative class of...more

Noodle This! The Yin and Yang of Two Courts, Two Antitrust Cases, Two Class Certification Motions, Two Daubert Challenges, Two...

Noodle this: Two significant orders on class certification in antitrust matters issued last week. Both were heavily influenced by the threshold determination of Daubert challenges to the plaintiffs’ expert evidence. In one...more

Judge Gorsuch on Class Actions

On January 31, President Trump announced that Judge Neil Gorsuch of the Tenth Circuit Court of Appeals would be nominated for the United States Supreme Court. We took a look at those opinions authored by Judge Gorsuch on the...more

When Objecting Once Is Not Enough: Recognizing a Continuing Duty as the Charges and Verdict Form Evolve

On November 21, 2016, the First Circuit offered practitioners yet another reminder that, as the charges and verdict form evolve through colloquys with the trial judge, there is a continuing obligation to object; the timing of...more

Objecting to a Magistrate Judge's Report and Recommendation

An unpublished opinion from the Tenth Circuit Court of Appeals in January 2016 caught our eye because it collected various established preservation-of-error principles for objecting to a magistrate judge's report and...more

Be Punctilious, Or You Might Inadvertently Waive A Personal Jurisdiction Objection In Federal Court

May you preserve an objection to personal jurisdiction by including a general denial to the complaint’s allegation in your answer and then moving to dismiss on personal jurisdiction grounds less than three (3) months later?...more

Rule 50 Practice: Don’t Forget About Your Summary Judgment Arguments

Your summary judgment motion was denied. You have proceeded to trial. You are preparing a Rule 50 motion. Should you include those issues raised in your denied summary judgment motion? Must you do so?...more

Making a Record in Support of CAFA Removal to Federal Court

The Eleventh Circuit’s decision in Dudley v. Eli Lilly and Co., 2014 WL 7360016 (11th Cir. Dec. 29, 2014), highlights the risk of waiving (or, at a minimum, postponing) an otherwise proper removal by not creating a proper...more

United States Supreme Court Denies Certiorari in Case Involving Use of General Verdict

Monday, the United States Supreme Court denied certiorari in Khan v. Chowdhury, Case No. 13-1479. Notwithstanding the denial, this case is notable, as it highlights a recurring issue in preserving error for appeal: proposing...more

The CAFA Year In (Appellate) Review: A Look Back At The Class Action Fairness Act In The Circuit Courts Of Appeals In 2012-2013

On January 1, 2012, we published “The CAFA Year in (Appellate) Review: A Look Back at the Class Action Fairness Act in the Circuit Courts of Appeals in 2011.”...more

Fourth Circuit Court Of Appeals Puts Teeth Into The "In Fact" Exclusions Of A D&O Policy

In Farkas v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, No. 12-1481, 2013 WL 1459248 (4th Cir. Apr 11, 2013), the Fourth Circuit Court of Appeals affirmed a decision that put teeth into the "in fact" exclusions of a...more

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