Rule 23

News & Analysis as of

Supreme Court to Determine if Offer of Relief to Named Plaintiff Moots Class Action

Over the past several years, employers defending wage and other class action lawsuits have increasingly used a procedural move intended to defeat the class claim. In these cases, the employer offers complete financial and...more

Call Answered: Supreme Court to Decide if Offer of Judgment Moots TCPA Class Action and Scope of Gov’t Contractor Liability

On May 18, the U.S. Supreme Court granted certiorari in Campbell-Ewald Co. v. Gomez, a Telephone Consumer Protection Act (TCPA) class action. The case raises two related questions that are the source of frequent litigation...more

Third Circuit Emphasizes Distinction between Ascertainability Analysis and Rule 23 Requirements

Action Item: Byrd, the latest in a recent line of cases from the Third Circuit concerning the ascertainability standard, emphasizes the importance of keeping the ascertainability analysis distinct from Rule 23’s other...more

Supreme Court Ruling Could Alter Class Action Landscape

The U.S. Supreme Court has agreed to decide a case that could alter the landscape of federal class action litigation. Granting the defendant’s petition for certiorari in Campbell-Ewald Company v. Gomez, the Court will review...more

Supreme Court to decide if a TCPA class action can be mooted by a pre-certification offer of judgment

Monday, the United States Supreme Court accepted certiorari to review the Ninth Circuit’s decision in Campbell-Eward Co. v. Gomez, 768 F.3d 871 (9th Cir. 2014), which involved a TCPA class action brought by the recipient of a...more

Genesis Healthcare May Be Merely the First Book in Bible on Mooting Class/Collective Actions

In the beginning, the U.S. Supreme Court decided in Genesis Healthcare that an FLSA case is moot when the plaintiff accepts an offer of full relief. As we noted in our previous blog, the decision left open, however, the...more

Delaware Dismisses Caremark Claim Against DuPont

The Delaware Court of Chancery recently dismissed a derivative action in Ironworkers District Council of Philadelphia & Vicinity Retirement & Pension Plan v. Andreotti et al. One of the many claims alleged was a Caremark...more

Rule 23 Subcommittee’s Proposed Amendments

The Rule 23 Subcommittee of the federal Judicial Conference Advisory Committee on Civil Rules recently issued a report with proposed amendments to Rule 23. These are at an early stage and far from final recommendations....more

Two Out of Three Ain’t Bad: Kansas District Court Certifies Settlement Class and Grants Preliminary Approval but Rejects Notice by...

A boy fell through the vinyl guardrail his father installed on the second story deck of their home. After settling his son’s personal injury claims, the father sued Home Depot and the guardrail manufacturer on behalf of...more

A Byrd in the Hand

Recently, I had the privilege of moderating a panel in Boston discussing hot topics in class actions. We had a terrific group of panelists, including three (besides myself) who represent defendants in class actions and one...more

Third Circuit to Plaintiffs’ Bar: Expert Testimony Necessary for Certification Must Satisfy Daubert

Plaintiff purchasers of traditional blood reagents, products that test the compatibility of donor blood with recipients, brought putative class actions claiming that two defendant companies conspired to fix prices in...more

Use of Expert Testimony at Class Certification Stage Addressed By Third Circuit

The Third Circuit recently joined the Seventh, Eighth, and Ninth Circuits in holding that, where a Daubert challenge is made to the use of expert testimony in support of class certification, the Daubert challenge must be...more

Third Circuit Clarifies the Ascertainability Standard in Class Certification Proceedings

In a precedential opinion issued on April 16, 2015, the Third Circuit sought to clarify its requirement that a proposed class be sufficiently ascertainable in order to be certified under Fed. R. Civ. P. 23(b)(3). Expressing...more

Denial of Class Certification In Computer Spyware Suit Vacated By Third Circuit

On April 16, 2015, the United States Court of Appeals for the Third Circuit vacated a district court’s order denying class certification of a computer spyware suit against Aaron’s Inc., concluding that district court had...more

Some Plaintiffs Just Have No Class

We’ve been thinking a lot about class actions lately. One reason is that the Rule 23 Subcommittee of the (federal) Advisory Committee on Civil Rules just came out with a “sketch” of possible amendments – and from the defense...more

Town Gets Schooled on Class Definition in PCB Contamination Case

The Town of Lexington, Massachusetts filed a putative class action in 2012 on behalf of itself and alleged similarly situated Massachusetts school districts that have one or more buildings with airborne...more

Not Saved By The Bell: Dismissing Classes Prediscovery

Two billion dollars. That is what the top legal counsel at nearly 350 companies spent on the defense of class actions in 2014. In addition to the cost of outside counsel, on average, companies dedicate six in-house...more

Rule 23 Study Agenda – Ascertainability

The final topic the Subcommittee has announced it will examine is the possibility of adopting a formal ascertainability requirement. The topic was suggested by several judges of the Third Circuit, who formally requested the...more

Second Circuit Finds Highly Individualized Damages Inquiry Won’t Spoil Rule 23 Class Wage Claims

Roach v. T.L. Cannon Corp., No. 13-3070-cv (2d Cir. Feb. 10, 2015): The Second Circuit Court of Appeals recently vacated and remanded the U.S. District Court for the Northern District of New York’s decision denying class...more

Food for Thought: 2014 Litigation Annual Review

Food for Thought reports on significant court decisions affecting the food industry. The focus of this edition is on several food-related cases pertaining to class certification; particularly, on district court decisions...more

Illinois Supreme Court Agrees to Decide Fiduciary Duty Claim Against Former Counsel

In a few weeks’ time over at Appellate Strategist’s sister blog, the Illinois Supreme Court Review, we’ll address the question of just how rare it is to get an unpublished decision – what we in Illinois call a Rule 23 order –...more

Rule 23 Study Agenda – Merits Inquiry

The Advisory Committee has signaled that the merits inquiry is a “back burner” issue for the next Rule 23 amendments. Perhaps they should nudge it towards the front....more

Rule 23 Study Agenda – FRCP 68 and Mootness

Courts look down on offers of judgment in class actions as a procedural trick. Used properly, however, they are an effective early screen for cases that can’t be certified. ...more

Insurance Balance Billing Class Fails Rule 23’s Requirements

Plaintiff filed a putative class action in Arkansas state court against his automobile insurer for alleged failure to pay the full amount it was contractually required to pay for his medical bills following a car accident. ...more

Rule 23 Study Agenda – Notice Issues

Provisions to make notice of class certification cheaper and more effective are welcome, but they should also focus on making it more accessible once it arrives....more

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