Year-end lists are funny things.  They take a sort-of arbitrary starting and stopping point, and then they cram a bunch of prejudices into a (usually) arbitrary number of items.  And then people take them kind of seriously.  But they can be handy ways of catching trends one did not see before.  And in a year that has seen the beginning of a new debate over the shape of Rule 23, looking at the trends in caselaw can be important.  This year’s cases include some pro-plaintiff and some pro-defendant, and some hard to quantify.  But most of them are notable … Continue Reading

For a long time, I have had a very specific law review article I’ve wanted to write, but with my many other commitments, it has never come to fruition. And, given my schedule coming up, it’s unlikely it ever will. But I do have this blog, so why not just outline the idea here?

Scholars have worked for a long time to establish a governance mechanism for class actions that would prove both effective and legitimate. It’s a difficult balance to strike: most policymakers want class actions that can operate effectively as litigation devices, but that don’t just hijack … Continue Reading

 For some time, academics have been decrying the demise of the class action, arguing that the Supreme Court’s precedent makes it harder than ever to certify a class under Rule 23. And yet, as one practitioner I know observed, plaintiffs keep filing the things. And quite a few courts keep certifying them.

Now, however, at least one federal district court appears to be listening to the academy.

The case, In re Kosmos Energy Ltd. Secs. Litig., No. 3:12-CV-373-B, 2014 U.S. Dist. LEXIS 36365 (N.D. Tex. Mar. 19, 2014), appears to be an unremarkable stock-drop case, the exact kind that … Continue Reading

In Labou v. Cellco Partnership, No. 2:13-cv-00844-MCE-EFB, 2014 U.S. Dist. LEXIS 26974 (E.D. Cal. Mar. 3, 2014), the named plaintiff sued cell phone company Verizon. She alleged that Verizon had used an automatic dialer to call her cell phone in an attempt to get her former brother-in-law to pay his cell phone bill, a practice that allegedly violated the Telephone Consumer Protection Act (TCPA). And she sought to certify a class of everyone else Verizon had contacted with an automatic dialer.

There was a twist: the TCPA does not prohibit collection calls so long as the recipient is not … Continue Reading

At this point, I’m well aware that I tend to sound like an old crank when reviewing class action scholarship; much of it repeats the same old stuff, predicts the imminent demise of the class action in its current form, and looks at the same Supreme Court cases instead of digging into where the real action happens. And that is why I am happy to report that this year, there were quite a few articles that did take different approaches to various problems in class actions. Yes, we still had some of the same Supreme Court rehashes, but even some … Continue Reading

 Settlement opinions are often not that interesting. The vast majority of them are by-the-numbers approvals of proposed settlements that offer little insight about how Rule 23 works. This is especially true of preliminary approval opinions. But every once in a while, a court refuses even the preliminary approval of a settlement.  When that happens, class action lawyers can usually learn a few things about how not to settle a case.

Better v. YRC Worldwide Inc., No. 11-2072-KHV, 2013 U.S. Dist. LEXIS 163569 (D. Kan. Nov. 18, 2013), is such a case. It was a proposed settlement of a … Continue Reading

Plaintiff and defense lawyers tend to talk past each other a lot when discussing the legal theories underlying the class action. Plaintiffs talk of deterrence, and the need for easier certification requirements. Defendants talk about potential abuses of the device, and the need for due process. Plaintiffs prefer the "entity theory" of class actions. Defendants prefer the "joinder" theory. So to find academics on either side agreeing to anything substantive can be quite rare.

And that’s why it is notable that two law professors–from different ends of the spectrum–are now arguing that courts should look at class actions as trustsContinue Reading

The adequacy requirement of Rule 23(a)(4) tends to be under-studied and under-enforced.  That’s why it is always a pleasure to read new work on adequacy. Now, Professor Elizabeth Burch has published her latest discussion of the adequacy requirement: Adequately Representing Groups.

Professor Burch focuses on the standard that should apply when attacking adequacy after the fact. Nonetheless, this inquiry should inform the Rule 23(a)(4) inquiry, since one of the purposes of finding a representative adequate is to prevent subsequent collateral attacks to an aggregated judgment.

Her conclusions:

 

  • Courts should tolerate greater conflicts in "indivisible remedy" cases.
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 In 2006, childcare providers in the state of Michigan unionized, primarily so that they could negotiate state low-income subsidies with Michigan’s Department of Human Services. The vote to unionize was largely one-sided, but not unanimous. Similarly, few childcare providers voted against the subsequent collective bargaining agreement, which required participants in Michigan’s Child Development and Care Program to either join the union or pay an "agency fee."

Nonetheless, a few non-union providers were angry enough about the fee to sue the state and the union for return of their union dues and agency fees. The trial court refused to certify the … Continue Reading

 Brenda Kennedy was hospitalized in 2009 for four days. She had an insurance policy from United American that paid benefits for each day that she spent in the hospital, and she assigned those benefits to the hospital. When she received her hospital bill, she discovered that it had only covered three days, not four. So she bought a class action on behalf of everyone who received benefits from the policy.

United American moved to dismiss the case because Ms. Kennedy had not received benefits herself; she had assigned them to the hospital. The court agreed with the argument, but stayed … Continue Reading