Archives: Rule 23 Requirements

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Proposed Rule 23 Amendment for Class Action Settlement: Sea Change or Codification of the Status Quo?

Photo of James MorrisonBy James Morrison on Posted in Rule 23 Requirements
Proposed amendments to the class action settlement process in Federal Rule of Civil Procedure 23(e) are scheduled to take effect on Dec. 1, 2018. One of the proposed amendments requires that “[t]he parties must provide the court with information sufficient to enable it to determine whether to give notice of the proposal to the class.” … Continue Reading

Second Circuit Confirms Ability of Defendants to Challenge and Defeat Class Certification Even After Loss in Jury Trial

Photo of Danyll FoixBy Danyll Foix on Posted in Rule 23 Requirements
The Second Circuit’s recent post-trial decertification of the class in Mazzei v. The Money Store, et al. has garnered attention about decertification as a defense strategy. The decision confirms that plaintiffs’ burden to prove compliance with Rule 23 requirements does not end when a district court certifies a class, but in fact continues all the … Continue Reading

Low-Tech Proof In a High-Tech World: Northern District of California Denies Class Certification In Hulu Data Privacy Case

Photo of Matthew FeilBy Matthew Feil on Posted in Class Actions Privacy, Class Certification, Rule 23 Requirements
On June 16, the Northern District of California denied a motion for class certification in In re Hulu Privacy Litigation, No. C 11-03764 LB, ECF No. 111.  The plaintiffs in that action alleged that Hulu violated the Video Privacy Protection Act (“VPPA”) by disclosing personal identification information (“PII”) to third parties, including Facebook.  Hulu provides … Continue Reading

No Need To Try the Individual Claim After Class Cert Denial – Ninth Circuit Asserts Jurisdiction over Voluntary Stipulated Dismissal and Upholds Denial of Class Certification

Photo of Casie CollignonBy Casie Collignon and Aaron Thompson on Posted in Class Certification, Consumer Class Action, Predominance, Rule 23 Requirements
The Ninth Circuit recently affirmed the United States District Court for the Central District of California’s denial of class certification of a Plaintiff’s California consumer law claims based primarily based on the predominance of individualized issues. Case No. 11-55592 (9th Cir. Feb. 3, 2014). Notably, the Ninth Circuit also determined that it had jurisdiction to … Continue Reading

Loreto v. The Procter & Gamble Company: Southern District of Ohio Grants Motion to Strike Class Allegations in Consumer False Advertising Case

By Nicole Skolout on Posted in Advertising Class Action, Class Certification, Consumer Class Action, Rule 23 Requirements
In a significant decision, the Southern District of Ohio granted, in full, the defendant’s motion to strike class allegations in a consumer false advertising class action before any significant discovery had taken place or the plaintiffs filed a motion for class certification.  Loreto v. The Procter & Gamble Company, No. 1:09-cv-815, 2013 U.S. Dist. LEXIS … Continue Reading

Court Certifies TILA Class Action Lead by Familiar Plaintiff / Counsel Team

Photo of Julian PerlmanBy Julian Perlman on Posted in Class Certification, Rule 23 Requirements
A New York Federal court has certified a class action against Ann Taylor LOFT for violations of the Truth in Lending Act (see Opinion & Order in Kelen v. World Financial Network National Bank, Case No. 12-CIV-5024). Lead Plaintiff Ester Kelen brought suit on behalf of herself and others similarly situated, alleging that the account … Continue Reading

Basic Is Anything But: Courts Continue to Wrangle with the Fraud-on-the-Market Presumption

Photo of Jessie M. GabrielBy Jessie M. Gabriel on Posted in Class Action Trends, Predominance, Rule 23 Requirements, Securities
Co-authors:  Mark Kornfeld and Deborah Renner Editors’ Note:  This post has also been published as a BakerHostetler Client Alert. It has been 25 years since the Supreme Court announced the fraud-on-the-market presumption of reliance in Basic Inc. v. Levinson, 485 U.S. 224 (1988).  Yet many courts, including the Supreme Court itself, continue to struggle in … Continue Reading

Sixth Circuit Reaffirms Certification of Defective Washing Machine Class on Remand From Supreme Court

Photo of Mark JohnsonBy Mark Johnson on Posted in Class Action Trends, Class Certification, Commonality, Predominance, Typicality
Co-author: Rand McClellan Editors’ Note:  This post is also a Baker Class Action Alert. In a closely watched decision after remand by the Supreme Court, on July 18, 2013, the Sixth Circuit Court of Appeals upheld for a second time the class certification order in In re Whirlpool Front-Loading Washer Prods. Liab. Litig. (“Whirlpool II”) … Continue Reading

Common and Predominating Damages: Comcast Opinion Extends Wal-Mart v. Dukes’ Standards for Class Certification but Leaves the Question of Daubert for Another Day

Photo of Casie CollignonBy Casie Collignon on Posted in Antitrust, Class Certification, Expert Testimony, Predominance, Rule 23 Requirements
Co-authored by: John B. Lewis, Dustin M. Dow, Patrick T. Lewis, Danyll W. Foix, and Rodger L. Eckelberry Editor’s Note: This Executive Alert was published by members of BakerHostetler’s Securities Litigation and Regulatory Enforcement Team, Employment Team, and BakerHostetler’s Class Action Team. On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, Case … Continue Reading

Comcast v. Behrend: Supreme Court Tightens Certification Requirements, But Leaves Standard For Expert Evidence Uncertain

Photo of Patrick T. LewisBy Patrick T. Lewis on Posted in Antitrust, Class Certification, Predominance, Rule 23 Requirements
On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, Case No. 11-864, which tightened class certification requirements in two respects.  First, Behrend requires plaintiffs to show a method by which class-wide damages can be commonly calculated in Rule 23(b)(3) antitrust class actions.  Second, the decision confirmed that the Court’s “rigorous analysis” … Continue Reading

A Big Week for the Securities Bar: Amgen and Gabelli

By Deborah Renner on Posted in Class Certification, Commonality, Injunctions, Practice Pointers, Predominance, Securities
Co-authored by: Marc D. Powers, Mark A. Kornfeld, and Jessie M Gabriel Editor’s Note: This Executive Alert was published by members of BakerHostetler’s Securities Litigation and Regulatory Enforcement Team and BakerHostetler’s Class Action Team. The Supreme Court last week issued two opinions of major importance to the securities bar. In Amgen Inc. v. Connecticut Retirement … Continue Reading

Disproportionately Favoring the Named Plaintiffs Kills Settlement, Says Sixth Circuit

Photo of Sam CamardoBy Sam Camardo on Posted in Adequacy of Representation, Class Certification, Consumer Fraud, Injunctions, Rule 23 Requirements, Settlements, Superiority
The Sixth Circuit recently limited defendants’ ability to craft settlements that disproportionately favor the class representatives.  Vassalle v. Midland Funding LLC, — F.3d –, 2013 WL 673517 (6th Cir. Feb. 26, 2013).  Though the court did not pass on the ubiquitous incentive award, its skepticism of “preferential treatment” for class representatives might cause district courts … Continue Reading

Individualized Causation and Reliance Defenses Render Class Representative Inadequate in the Northern District of Illinois

By Raj Chohan on Posted in Adequacy of Representation, Consumer Fraud, Injunctions, Predominance, Rule 23 Requirements, Rule 23(b)(2) Class Actions
Class action defense practitioners routinely face uphill battles on the issue of individualized defenses for class members. However, these arguments should not be overlooked as tools to defeat class certification. Lipton v. Chattem, Inc., No. 11 C 2952, 2013 WL 489147 (N.D. Il. Feb. 8, 2013), a recent case out of the Northern District of … Continue Reading

Sixth Circuit Further Defines Requirements of Commonality Under Dukes; Distinguishes Seventh Circuit Case Relaxing Those Requirements

Photo of Rodger EckelberryBy Rodger Eckelberry on Posted in Class Certification, Commonality, Issue Certification, Rule 23 Requirements
Co-author: Elizabeth Braverman In a recent case, Miller v. Countrywide Bank (In re Countrywide Financial Corp. Mortgage Lending Practices Litigation), — F.3d —, No. 12-5250, 2013 U.S. App. LEXIS 924 (6th Cir. Jan. 15, 2013), the Sixth Circuit provided more guidance on the requirements of commonality where plaintiffs allege discrimination resulted from a companywide delegation of … Continue Reading

Seventh Circuit Rejects Class Trial By [Un]Representative Sample

Photo of Rodger EckelberryBy Rodger Eckelberry on Posted in Class Certification, Commonality, Rule 23 Requirements
In Espenscheid v. DirectSat USA, LLC, Case No. 12-1943 (7th Cir. Feb. 4, 2013), in a combined collective/class action asserting claims under the Fair Labor Standards Act and state law, three satellite installation technicians sought to represent 2,341 technicians on claims their employer’s “piece-rate” pay structure violated federal and state wage laws by failing to … Continue Reading

Dukes Dooms Domino’s Delivery Drivers’ Class Action

Photo of Rodger EckelberryBy Rodger Eckelberry on Posted in Class Certification, Commonality, Rule 23 Requirements
Co-author: Scott J. Bent The Eighth Circuit recently reaffirmed one of the central holdings of Dukes v. Wal-Mart—commonality is no longer a “rubber stamp.”  In Luiken v. Domino’s Pizza, a Domino’s delivery driver sought to represent a class of about 1,600 fellow drivers in an action against the pizza giant for wrongfully withholding tips.  No. … Continue Reading

Class Certification Denied In Recent Consumer Products False Advertising Cases

By Nicole Skolout on Posted in Class Certification, Commonality, Rule 23 Requirements, Superiority, Typicality
In a number of recent district court decisions from across the country, courts have denied requests to certify nationwide or statewide classes in cases involving consumer products.  These decisions could prove helpful in opposing class certification in other false advertising cases.  Significantly, the courts in both Chow and In re Celexa & Lexapro read exposure/causation … Continue Reading

Seventh Circuit Allows Class Certification Despite Attorney Misconduct

By Eric Fish on Posted in Adequacy of Representation, Class Action Trends, Class Certification, Rule 23 Requirements
Do you ever wonder how plaintiffs’ class action lawyers find their class representatives?  And whether there is any possibility of defeating class certification if their efforts are sleazy or downright unethical?  In the recent decision of Reliable Money Order, Inc. v. McKnight Sales Co., Inc., —F.3d —, No. 12-2599, 2013 WL 85937 (7th Cir. Jan. … Continue Reading

California District Court Awaits Class Certification Motion in Wal-Mart

Photo of Casie CollignonBy Casie Collignon on Posted in Class Action Trends, Class Certification, Commonality, Rule 23 Requirements, Rule 23(b)(2) Class Actions
On December 10, 2012, the California District Court denied Wal-Mart’s motion for an interlocutory appeal in a putative class action filed in the wake of the Supreme Court’s decision not permitting certification of a nationwide class.  Dukes v. Wal-Mart, No. C01-02252 CRB, slip op. (N.D. Cal. Dec. 10, 2012).  In September, the district court had … Continue Reading

Wal-Mart Sex Discrimination Plaintiffs Get a Second Bite at a Smaller Apple

Photo of Casie CollignonBy Casie Collignon on Posted in Class Action Trends, Class Certification, Class Definition, Equitable Relief, Rule 23 Requirements, Rule 23(b)(2) Class Actions
Last year, the Supreme Court ruled in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), that five named plaintiffs alleging nationwide sex discrimination class action claims did not satisfy Rule 23(a)’s commonality requirement and could not bring class claims for monetary relief under Rule 23(b)(2). In October of last year, the plaintiffs filed a … Continue Reading

Third Circuit Vacates Certification in Run-Flat Tires Case

By Deborah Renner on Posted in Class Action Trends, Class Certification, Numerosity, Predominance, Rule 23 Requirements
In a case that illustrates the growing trend in class certification law to rigorously evaluate a plaintiff’s contentions that he or she meets the Rule 23 class certification criteria, the Third Circuit vacated the New Jersey District Court’s certification of a class involving run-flat tires (“RFTs”).  In Marcus v. BMW, Nos. 11-1192, 11-1193, slip op. (3d … Continue Reading

Recent Louisiana Jurisprudence

By Brett Wall on Posted in Class Certification, Expert Testimony, Louisiana, Predominance, State Class Action Law
Contributing Author: Amanda Karp The Supreme Court of Louisiana recently struck down the trial and appellate courts’ class certification in Alexander v. Norfolk Southern Corp., 82 So.3d 1234 (La. 2012) for a lack of predominance of common issues. The case highlights the critical importance of procuring expert testimony on predominance issues at the class certification … Continue Reading

Overtime Pay Class Certified Despite Individualized Issues

By Jeanine Conley on Posted in Class Certification, Commonality, Predominance, Rule 23 Requirements
Editors’ Note:  This blog post is a dual submission to Baker’s Class Action Lawsuit Defense and Employment Class Action blogs. In Cuevas v. Citizens Financial Group Inc., Case No. 10-cv-5582 (E.D.N.Y. May 2, 2012), the plaintiff brought an action on behalf of all Assistant Bank Managers (“ABMs”) who had worked at one of the 230 Citizens … Continue Reading

Class Cannot Be Certified in Facebook Advertiser “Click” Litigation Because Alleged Contract Does Not Exist

By Deborah Renner on Posted in Class Action Trends, Class Certification, Consumer Fraud, Predominance, Rule 23 Requirements, Superiority
Fraud class actions have become increasingly difficult to certify over the years as courts routinely have held that individualized issues of reliance swamp any common issues. Plaintiffs’ attorneys thus have been keen to attempt to transform fraud claims into breach of contract claims and claims under consumer protection statutes.  That approach failed miserably for plaintiffs in In re Facebook, Inc. PPC Advertising … Continue Reading
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