Washington, DC-based litigator James Freije brings us an analysis of the Supreme Court’s latest class certification decision.

Resolving a current split amongst multiple federal circuits, the United States Supreme Court recently ruled in Microsoft Corp. v. Baker that federal courts of appeals lack jurisdiction to review orders denying class certification after plaintiffs voluntarily dismiss their claims with prejudice.  Justice Ginsburg wrote the majority opinion, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan, overturning the United States Court of Appeals for the Ninth Circuit, citing a lack of jurisdiction under 28 U.S.C. § 1291 (“§ 1291”).  In a separate opinion concurring … Continue Reading

Richard C. Beaulieu reports below on the Iowa Supreme Court’s affirmation of the trial court’s order certifying a class of individuals asserting claims against a corn milling facility based on allegations of air pollution.

Over the past two decades, large agricultural operations have become a popular target for plaintiffs’ attorneys.  Bringing claims under common law causes of action like negligence, trespass, and especially nuisance based on the environmental impacts of these agricultural operations, plaintiffs in these cases have frequently succeeded in winning substantial judgments.  While there have been some class actions based on these theories in the past, most such … Continue Reading

Ah, class decertification in district court…the rarely glimpsed, late-harvest victory that comparatively few class action defense counsel can claim to have tasted. U.S. District Judge Charles Breyer of the Northern District of California recently delivered one such victory for the 2016 vintage, decertifying a plaintiff class he originally certified in 2012 in a wage-and-hour litigation against auto parts retailer AutoZone, Inc.  In the course of reaching that decision, Judge Breyer’s 49-page order also offers further insights into how the Supreme Court’s decisions in Tyson Foods v. Bouaphakeo, Comcast Corp. v. Behrend, and Wal-Mart Stores, Inc. v. Dukes are … Continue Reading

Some years are exciting in class action practice; others are tamer. In general, in any established area of the law, precedent accumulates only incrementally. And, with the modern Rule 23 entering its 50th anniversary year, it makes sense that this might be one of the years that would demonstrate that principle. There were no stunning reversals or announcements of new law this year. The Supreme Court cases promising fireworks this term were argued in 2015, but decisions held until 2016. So this year’s ten most important cases were mostly building blocks adding to pre-existing trends in the law. As a … Continue Reading

Warning: This is another “amending Rule 23 post.”  Regular discussion of actual class action litigation will recommence on Thursday.  While I assisted Lawyers for Civil Justice with its response to the Subcommittee’s proposals, the following is only my personal opinion.
Last week, the Rule 23 Subcommittee released its latest draft proposal for amending Rule 23.  (2015-1105 Rule 23 Subcommittee Report)
The Subcommittee has abandoned (or in a few cases, placed “on hold”) several of its proposed amendments.  Among them:
  • There is no longer an attempt to amend Rule 23(c)(4) to specify that it trumps Rule 23(b)(3).
  • There is
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It’s rapidly becoming conventional wisdom that Campbell-Ewald Co. v. Gomez (argued yesterday) is going to be a win for the plaintiffs.  Respected academics like Robert Klonoff have stated it, and respected reporters like Perry Cooper have quoted respected plaintiffs’ counsel like Deepak Gupta to the same effect.  But, dig a little deeper into the arguments they’re all using to justify their predictions, and it’s not quite as clear that Gomez will be decided in favor of the plaintiff.  Those arguments are:
The Court has no way to counter Justice Kagan’s dissent.  In a blunt dissent in Genesis Healthcare Continue Reading
The Rule 23 amendment process has continued apace.  For those of you who did not read Paul Karlsgodt’s excellent summary of the September 11 mini-conference (which included a number of class-action luminaries from both sides of the aisle), I’d recommend you head straight over to do so.
For the mini-conference, the Rule 23 Subcommittee published its latest thoughts on various topics (click on “Mini Conference Materials), and these are the latest versions of its proposals to debate.
In general, the proposals have improved significantly.  It’s clear that the Subcommittee is listening to reactions from all sides as part of its … Continue Reading
Since HR 1927 was introduced, there has been an outcry that it will “kill the class action.”  In fact, opponents (among them Professors Alexandra Lahav, Samuel Issacharoff (Issacharoff HR1927 Letter), and Arthur Miller (Miller HR1927 Letter)) have complained that it was specifically designed to do so.  Nothing could be further from the truth.  In fact, the bill was specifically designed to have a minimal impact on Rule 23.  So how did the disconnect between the intent and the reaction occur?  I thought it would be worth walking through the criticisms of the bill so far, … Continue Reading
Last week, the Rule 23 Subcommittee of the Federal Rules Advisory Committee published its draft concept amendments to Rule 23.  You can find them here.   (They’re in the April 2015 Agenda Book.)  What follows is my personal reaction to the proposed concept amendments.  They will be subject to public comment, and, I imagine, vigorous further debate.
Here’s the good news.  The Subcommittee has made two completely unobjectionable proposals.  First, it would modify Rule 23(e) to require a statement of any side agreements before an objector withdraws an objection.  Greater transparency is always good.  Second, it would allow for emailed … Continue Reading

The Subcommittee believes that drafting a formal ascertainability requirement is too difficult; it should try nonetheless.

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 Subcommittee consider a formal ascertainability requirement when dissenting from a refusal to hear a Third Circuit ascertainability case en banc. The specific language of that request:

 I suggest that the Judicial Conference’s Committee on Rules of Practice and Procedure look into this matter. Rule 23 explicitly imposes limitations on the

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