News & Analysis as of

FRCP 23(b)(3)

Kilpatrick

Fourth Circuit affirms denial of class certification for golf course investors allegedly swindled by Ponzi scheme

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In July 2024, the Fourth Circuit affirmed the denial of class certification for a group of Chinese investors who were allegedly duped into entering a Ponzi-like investment scheme to purchase two dozen golf courses and other...more

Snell & Wilmer

U.S. Supreme Court Passes on the Chance to Tighten Class Certification Review

Snell & Wilmer on

On April 15, 2024, the United States Supreme Court declined certiorari in the case of National ATM Council, Inc. v. Visa Inc. The central issue raised in the petition was the depth of analysis a court must conduct at the...more

Kilpatrick

False advertising class actions: Tennessee federal court invalidates survey and denies certification for dental providers in class...

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The Middle District of Tennessee recently denied a motion for class certification for a group of dental providers in a suit against SmileDirectClub (“SmileDirect”). Ciccio v. SmileDirectClub, LLC, No. 3:19-CV-00845, 2024 WL...more

Kilpatrick

D.C. Circuit: issue class must still meet all Rule 23 requirements, including showing that resolution of the certified issues will...

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Takeaway: Class certification of damages claims frequently turns on whether individual issues predominate over common issues under Federal Rule 23(b)(3). Class plaintiffs facing predominance problems may attempt to circumvent...more

Shook, Hardy & Bacon L.L.P.

Class Action Decisions Published June 2023

The full text of each summary can be found below through the Table of Contents links. Highlights from this issue include...more

Polsinelli

On the Brink(er): In Appeal of Closely-Watched Data Breach Class Certification, Eleventh Circuit Vacates in Part and Remands for...

Polsinelli on

The Eleventh Circuit’s recent ruling in In re Brinker Data Incident Litigation (“Brinker”) is the first time that a federal circuit court has ruled on a lower court’s grant of class certification in a data breach class action...more

Carlton Fields

The Lack of Actual Injury Defense: The Landscape Since TransUnion

Carlton Fields on

The 2023 Carlton Fields Class Action Survey found that the second most successful class action defense is the lack of any actual injury suffered by some or all of the class. It also found that this defense made a big jump in...more

Robinson+Cole Class Actions Insider

Rules Enabling Act Key to New Ninth Circuit Decision on Class Certification

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

Robinson Bradshaw

Kelly v. RealPage Inc.: The Third Circuit Lowers the “Heightened Standard” for Ascertainability

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Rule 23 does not explicitly require that a court be able to determine who the members are before certifying a class. But judges have found implicit in the Rule a requirement that membership in a defined class be...more

Kilpatrick

Eleventh Circuit emphasizes the abuse of discretion standard in affirming the denial of certification of a “diminution in value”...

Kilpatrick on

Takeaway: From the perspective of attorneys representing class action defendants, it seems that some circuits (especially the Ninth Circuit) do not give much deference to district court decisions denying class certification....more

Kilpatrick

Seven Key Takeaways: Class Certification in the Ninth Circuit – Predominance

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Kilpatrick Townsend partner Jay Bogan, along with three other panel members, recently presented “Class Certification after Olean v. Bumble Bee: Expert Testimony, Uninjured Class Members, and Article III Standing.” This...more

Akin Gump Strauss Hauer & Feld LLP

9th Circ. Decision Sets New Framework For Class Certification

The en banc U.S. Court of Appeals for the Ninth Circuit's recent watershed decision in Olean Wholesale Grocery Cooperative Inc. v. Bumble Bee Foods LLC established several significant benchmarks for determining class...more

Pierce Atwood LLP

Is It Time to Update Mass. R. Civ. P. 23?

Pierce Atwood LLP on

Over the past 25 years, I have had the good fortune of getting to know and working with both plaintiff and defendant class action lawyers from many states, and to teach class action practice in dozens of local and national...more

Jenner & Block

In Divided En Banc Ruling, Ninth Circuit Holds That the Potential Presence of Uninjured Class Members Does Not Defeat Class...

Jenner & Block on

In April 2021, the Ninth Circuit issued its panel opinion in Wholesale Grocery Cooperative v. Bumble Bee Foods LLC, which held that the district court erred in certifying several classes of tuna purchasers in an antitrust...more

Akin Gump Strauss Hauer & Feld LLP

9th Circuit Provides Key Guidance for Defendants Opposing Rule 23(b)(3) Class Actions

Key Points - The en banc 9th Circuit clarified numerous rules applicable to class actions brought under Rule 23(b)(3) of the Federal Rules of Civil Procedure. The court’s watershed decision in Olean Wholesale Grocery v....more

Robinson+Cole Class Actions Insider

Seventh Circuit: Defendants Need Not Prove Merits of Defenses to Defeat Class Certification

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

Kilpatrick

Ninth Circuit: class representative may not tailor class definitions to accommodate personal and not class-wide merits issues

Kilpatrick on

Takeaway: The individual claims asserted by a class representative – as well as the defenses that apply to those claims – form the foundation of any effort to certify a class under Rule 23. If the claims of the class...more

Akin Gump Strauss Hauer & Feld LLP

Feltzs Offers First Glimpse at How Federal Courts May Apply Wesson

Earlier this year, in Wesson v. Staples the Office Superstore, LLC, 68 Cal. App. 5th 746 (2021), the California Court of Appeals held that courts are empowered to limit or strike representative claims under the Private...more

McGuireWoods LLP

Courts Differ on the Meaning of the Work Product Rule’s "Anticipation" and "Litigation" Elements: Part I

McGuireWoods LLP on

Fed. R. Civ. P. 26(b)(3)'s and parallel state work product rules apply to documents and tangible things prepared "in anticipation of litigation or for trial." But the Rule does not specify the degree of required...more

Lowenstein Sandler LLP

Third Circuit Clarifies Standards for Issue-Class Certification under FRCP 23(c)(4)

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In a recent published decision, the United States Court of Appeals for the Third Circuit clarified the standards that district courts must apply when certifying discrete issues–rather than an entire action–for classwide...more

Kilpatrick

Ninth Circuit: California antitrust law does not apply to the claims of a nationwide class

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Takeaway: Consumer class actions primarily target a damages remedy. In the antitrust context, state antitrust law provides the path to damages for indirect purchasers, because federal antitrust law bars indirect purchaser...more

Robinson+Cole Class Actions Insider

Recent First Circuit Opinion Addresses Strategies for Litigating Predominance in Class Action Litigation

On August 30, 2021, the U.S. Court of Appeals for the First Circuit issued a decision in Bais Yaakov of Spring Valley v. ACT, Inc. that addresses how plaintiffs can satisfy the predominance requirement in federal class...more

Kilpatrick

Data breach class actions: M.D. Fla. threads the Rule 23 needle in certifying the first consumer payment card class action

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Takeaway: Judge Timothy Corrigan of the Middle District of Florida recently found a way to certify a class action where consumers alleged the theft of payment card data, acknowledging he “may be the first to certify a Rule...more

Goodwin

Eighth Circuit Overturns Class Certification in Suit Against TD Ameritrade Holding Corp., Holding Individualized Evidence Is...

Goodwin on

Eighth Circuit Overturns Class Certification in Suit Against TD Ameritrade Holding Corp., Holding Individualized Evidence is Required for Each Putative Class Member; District Judge Approves Magistrate’s Recommendation to Deny...more

Sheppard Mullin Richter & Hampton LLP

Eighth Circuit Holds Rule 23(b)(3)’s Predominance Requirement Not Met in Securities Fraud Action Against Brokerage Firm

In Ford v. TD Ameritrade Holding Corp., 2021 U.S. App. LEXIS 12008 (8th Cir. Apr. 23, 2021), the United States Court of Appeals for the Eighth Circuit reversed a district court’s order certifying a class of customers who had...more

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