Takeaway: The ascertainability requirement for class actions has divided both California and federal appellate courts. In Noel v. Thrifty Payless, Inc., --- P.3d ----, No. S246490, 2019 WL 3403895 (CA July 29, 2019), the...more
Takeaway: A federal court should not lose jurisdiction under the Class Action Fairness Act (CAFA) when it denies a motion for class certification. In a prior post – Getting it wrong – remanding a removed class action back...more
Takeaway: According to the United States Supreme Court, federal district courts have “the virtually unflagging obligation . . . to exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v. U.S., 424...more
Takeaway: In Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013), the Supreme Court confirmed that Rule 23 “does not set forth a mere pleading standard,” and that, absent a showing damages can be calculated on a class-wide...more
Takeaway: There are two ways to beat a class action – defeat class certification or defeat the class claims on the merits. Individual RICO actions tend to be complex and expensive to defend, and they increase a defendant’s...more
Takeaway: Many courts instinctively have a negative view of motions to strike. For decades courts have referred to such motions – at least when directed to individual allegations under Rule 12(f) – as “disfavored,” a...more
Takeaway: The issue of how to treat uninjured class members continues to vex the federal courts. This issue presents both substantive and procedural complexities. Substantively, a class must be defined in objective terms, so...more
Takeaway: RICO actions tend to be complex. RICO class actions add to the complexity, because class counsel must figure out a way to persuade a court that common issues predominate over individual ones. This is a challenge,...more
Takeaway: The Ninth Circuit recently ruled that inadmissible evidence may be considered in ruling on a motion for class certification. But does inadmissible evidence really qualify as evidence? Notwithstanding the evidentiary...more
Takeaway: Alleging a “price premium” or “benefit of the bargain” damages theory is one thing. Proving it is another. A recent decision by Judge Lucy Koh of the Northern District of California shows the difficulty of...more
Takeaway: Civil RICO claims usually present complex issues. As civil causes of action predicated on violations of criminal law, a RICO plaintiff must prove (1) conduct (2) of an enterprise (3) through a pattern (4) of...more
Takeaway: To prevail on the predominance issue, an evidentiary showing is required. Defense counsel should prove – either through declaration or deposition testimony – that a particular defense (such as consent under the...more
“Picking-off” a named class representative is a class action defendant’s dream. Faced with a class action in which the named plaintiff seeks a small recovery on an individual basis but an enormous recovery on a class basis,...more