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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Category Archives: Certification

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Never Assume Numerosity – 2014 Edition Take 2

Posted in Certification

Rebecca Mullis attended an online program for Medical Diagnostic Sonography through Mountain State University. The program required her to attend a clinical externship to graduate, but there were no externship sites within a three-hour drive for her. So she sued the university on behalf of students like herself, whom she was sure (or her lawyers… Continue Reading

Typicality Applies to Relief, Too – Ubaldi v. SLM Corp.

Posted in Certification

In Ubaldi v. SLM Corp., No. 11-01320, 2014 U.S. Dist. LEXIS 38587 (N.D. Cal. Mar. 24, 2014), the plaintiffs sued student-loan institution Sallie Mae for allegedly imposing unenforceable choice-of-law provisions on some of its borrowers, as well as charging improper late fees and "usurious" interest. The trial court denied certification on a number of grounds, including… Continue Reading

The typicality burden – Henke v. Arco Midcon, L.L.C.

Posted in Certification

Class action lawyers are well aware that the burden to affirmatively demonstrate compliance with Rule 23 rests on the plaintiffs. Over the years, courts have elaborated somewhat on the burdens plaintiffs must meet for numerosity and commonality, but have remained somewhat vaguer when it comes to typicality. Last week, a trial court in the Eastern District… Continue Reading

Never Assume Numerosity – 2014 edition

Posted in Certification

This week, we get our yearly reminder not to take the humble numerosity requirement for granted. In Spread Enterprises, Inc. v. First Data Merchant Services Corp., No. 11-CV-4743, 2014 U.S. Dist. LEXIS 22972 (E.D.N.Y. Feb. 22, 2014), the named plaintiff–a prepaid phone minutes company–sued a bank and a credit card payment processor for charging "excessive"… Continue Reading

Ascertainability and Administrative Feasibility – Sethavanish v. ZonePerfect Nutrition Co.

Posted in Certification

This week’s case continues a trend I’ve written about before: more courts are declining to certify class actions where they will not be able to ascertain class membership based on the evidence before them. In Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC, 2014 U.S. Dist. LEXIS 18600 (N.D. Cal. Feb. 13, 2014), the plaintiff sued… Continue Reading

Predominance & Rigorous Analysis – Parko v. Shell Oil Co.

Posted in Certification

 Judge Richard Posner has always been an independent thinker, something he has proven in the last year as, despite his economically conservative credentials (which would lead one to presume a possible defense bias), he authored a number of arguably pro-plaintiff class certification opinions, particularly his twin opinions in the controversial case Butler v. Sears Roebuck… Continue Reading

Re-appraising Issue Certification

Posted in Certification, Scholarship

Since Judge Posner’s opinion in McReynolds v. Merrill Lynch almost two years ago, the issue of issue certification has been enjoying a renaissance. The latest entry in the discussion of how to look at issue certification comes from defense lawyer (and Georgetown adjunct law professor) Mark Perry, in his article Issue Certification under Rule 23(c)(4):… Continue Reading