Plaintiffs sometimes seek to certify an “issues class” under Federal Rule of Civil Procedure 23(c)(4) (or an equivalent state court rule) if they anticipate difficulty certifying the entire case for class treatment, but...more
A recent Texas Supreme Court decision in a class action caught my eye because it addressed several significant class certification issues, including one that I’ve seen regularly and another that the court analyzed in a new...more
6/3/2024
/ Article III ,
Class Action ,
Class Certification ,
Department of Transportation (DOT) ,
Injunctive Relief ,
Injury-in-Fact ,
Insurance Claims ,
Insurance Litigation ,
Putative Class Actions ,
Standing ,
TX Supreme Court ,
USAA
When a class certification decision overlaps with merits issues, can a court of appeals deciding an interlocutory appeal from a class certification order also review an earlier decision on a motion to dismiss if it was...more
When class certification is denied because the named plaintiff’s claim fails for some reason, sometimes an absent class member will try to intervene rather than filing their own separate suit. Their goal is usually to attempt...more
In analyzing class certification issues, courts have said that common issues may predominate in some cases even though damages would have to be determined individually for each class member. But what about where some class...more
A recent Ninth Circuit decision illustrates how defendants can use evidence on an individualized defense to potentially defeat class certification.
In Van v. LLR, Inc., — F.4th –, 2023 WL 2469909 (9th Cir. Mar. 13, 2023),...more
A sometimes-overlooked aspect of class action law is how class certification rules interact with the Rules Enabling Act, which provides that rules of procedure and evidence “shall not abridge, enlarge or modify any...more
1/30/2023
/ Affirmative Defenses ,
Class Action ,
Class Certification ,
Class Members ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Federal Rules of Civil Procedure ,
Federal Rules of Evidence ,
FRCP 23(b)(3) ,
Putative Class Actions ,
Rules Enabling Act
One of the first significant class certification-related decisions of 2023 comes from the Fifth Circuit. While some trial courts hesitate to strike class action allegations on the pleadings, the district court here concluded...more
A recent Ninth Circuit decision on a class action settlement, In re Apple Inc. Device Performance Litigation, 2022 WL 4492078 (9th Cir. Sept. 28, 2022), received significant attention in the legal media. It addressed several...more
Last week the Eleventh Circuit addressed an issue that many class action practitioners probably haven’t thought much about: whether approval of a class action settlement requires that each class member obtaining relief have...more
8/1/2022
/ Article III ,
CAFA ,
Class Action ,
Class Certification ,
Class Members ,
FRCP 23(e) ,
Injury-in-Fact ,
Settlement Agreements ,
Settlement Negotiations ,
Standing ,
TCPA
The Ninth Circuit recently addressed an issue that tends to arise frequently in class certification motion practice: how trial courts should apply the predominance requirement where appellate decisions have said that the need...more
7/11/2022
/ Bellwether Verdicts ,
Class Action ,
Class Certification ,
Class Members ,
Comcast v. Behrend ,
Damages ,
Employment Litigation ,
Liability ,
Predominance Requirement ,
Putative Class Actions ,
Unpaid Wages
I used to say that denials of class certification on numerosity grounds were rare and that usually it was futile to oppose class certification on that ground. That’s becoming less true as some circuits, including the Third...more
A recent Sixth Circuit case addressed an issue that tends to arise frequently in various types of class actions, such as property insurance and environmental cases: whether property valuation issues are appropriate for class...more
A recent Seventh Circuit decision makes an important point about how the principle that a court generally need not resolve the merits to decide class certification is bilateral – it applies to both affirmative claims and...more
Last week the Fifth Circuit issued a short opinion that made an important point that does not arise often in class certification decisions. Class certification failed because the plaintiffs’ proposed theory of liability would...more
Numerous class action suits have been filed against auto insurers regarding the valuation of vehicles that are total losses. These cases typically allege that insurers are undervaluing vehicles in some common way or in...more
2/15/2022
/ Auto Insurance ,
Breach of Contract ,
Car Accident ,
Class Action ,
Class Certification ,
Consumer Insurance Products ,
Fair Market Value ,
Insurance Litigation ,
Insurance Regulations ,
Liberty Mutual Insurance Company ,
Motor Vehicles ,
Policy Terms ,
Regulatory Violations ,
Unfair or Deceptive Trade Practices ,
Valuation
This week the D.C. Circuit and Seventh Circuit issued decisions addressing a question that has been hotly debated by class action lawyers on the plaintiffs’ and defense sides: whether the Supreme Court’s decision on personal...more
3/13/2020
/ Bayer ,
Bristol-Myers Squibb Co v Superior Court of California - San Francisco County ,
Class Action ,
Class Certification ,
Interlocutory Appeals ,
Jurisdiction ,
Lack of Jurisdiction ,
Lost Wages ,
Mass Tort Litigation ,
Motion to Dismiss ,
Putative Class Actions ,
Standard Fire ,
Whole Foods
Believe it or not, the Supreme Court of the United States just decided whether “to have ‘actual knowledge’ of a piece of information, one must in fact be aware of it.” The Court said “yes,” and it was unanimous. Most...more
When a business is sued in a proposed class action and there is only a small amount at stake on the named plaintiff’s claim, often one of the first thoughts that comes to mind is: can’t we just pay the full value of the named...more
2/25/2020
/ Admissions of Liability ,
Appropriate Equitable Relief ,
Attorney's Fees ,
Business Ownership ,
Class Action ,
Class Certification ,
Defense Strategies ,
Federal Rules of Civil Procedure ,
IL Supreme Court ,
Injunctive Relief ,
Litigation Fees & Costs ,
Litigation Strategies ,
Mootness ,
Offer of Judgment ,
Removal ,
Rule 68 ,
Rules of Civil Procedure ,
Tender Rules
A recent decision by a Washington federal district court caught my eye because it involved a circumstance I often see—a new development in the law results in a class action lawsuit being filed before the defendant has an...more
2/11/2020
/ Attorney's Fees ,
Auto Insurance ,
Class Action ,
Class Certification ,
Damages ,
Denial of Insurance Coverage ,
FRCP 23(b)(3) ,
Injunctive Relief ,
Insurance Claims ,
Insurance Litigation ,
Likelihood of Harm ,
Mootness ,
Policy Terms ,
Putative Class Actions ,
Superiority Claims ,
Treble Damages
Class action settlements are complicated. They often take months to negotiate. The last thing the lawyers or their clients on either side want to happen is for the trial court to deny approval or, even worse, for an appellate...more
12/16/2019
/ Adult Entertainment ,
Attorney's Fees ,
Class Action ,
Class Certification ,
Dancers ,
Employee Definition ,
Employment Litigation ,
Hiring & Firing ,
Independent Contractors ,
Misclassification ,
Settlement ,
Wage and Hour
The Supreme Court ruled yesterday, in Nutraceutical Corp. v. Lambert, that the 14-day deadline under Federal Rule of Civil Procedure 23(f) for petitioning a court of appeals to hear a discretionary appeal from a class...more
2/27/2019
/ Class Action ,
Class Certification ,
Collective Actions ,
Decertification ,
Equitable Tolling ,
Federal Rules of Civil Procedure ,
Filing Deadlines ,
FRCP 23(f) ,
Interlocutory Appeals ,
Leave to Appeal ,
Motion for Reconsideration ,
Nutraceutical Corp v Lambert ,
SCOTUS
The First Circuit recently addressed an issue of broad significance in class action law. It explained how a class cannot be certified when there are more than a small number of uninjured class members, and how a defendant...more
The Third Circuit’s new opinion on class certification issues in Mielo v. Steak ‘N Shake Operations, Inc., No. 17-2678 (3d Cir. July 26, 2018) provides helpful guidance for district courts and class action lawyers on both...more
7/27/2018
/ Accessibility Rules ,
Americans with Disabilities Act (ADA) ,
Article III ,
Class Action ,
Class Certification ,
Commonality ,
Disability Discrimination ,
Employment Litigation ,
FRCP 23(b)(2) ,
Numerosity ,
Restaurant Industry ,
Standing
With Judge Brett Kavanaugh’s nomination to the Supreme Court, one question to ask is whether, if he is confirmed, that will move the Court to any degree in class action cases. ...more