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

Tag Archives: ascertainability

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

Daubert and Ascertainability – Coleman v. Union Carbide Corp

Posted in Certification

A heavy-metals plant in Alloy, West Virginia provided a foundation for the local economy throughout the 20th century. (Hence the name Alloy.) In the 21st century, it provided the basis for an extensive class action lawsuit–Coleman v. Union Carbide Corp., 2013 U.S. Dist. LEXIS 140613 (S.D. W. Va. Sep. 30, 2013)–which alleged that decades of substandard emissions controls… Continue Reading

Cy Pres in Contested Class Certification – Hughes v. Kore of Indiana Enterprise Inc (7th Cir 2013)

Posted in Certification

 Judge Posner is often considered to be a pro-defense jurist, particularly in the area of class actions. Lately, he’s been proving himself to be more independent-minded than that. First, he allowed certification of a washing machine class, justifying certification despite some outcome-determinative individualized issues because predominance is a matter of "efficiency," and should not be reduced… Continue Reading

Ascertainability without Record-Keeping: Carrera v. Bayer Corp.

Posted in Certification

 Gabriel Carrera, along with many others like him, bought Bayer’s One-A-Day WeightSmart diet supplement. Apparently, he didn’t lose the weight he wanted, because he filed a class action alleging that Bayer had fraudulently claimed that the supplement’s use of epigallocetechin gallate (a green tea extract) boosted metabolism and assisted weight loss. It turns out, however, that… Continue Reading

Overbreadth and Injunctive Relief – Pileggi v. Wells Fargo Bank, NA

Posted in Certification

 At this point in my practice, there are certain judges whose opinions I just automatically look for: the Chicago triumvirate of Posner, Easterbrook, and Wood; the often-covered Judge Rakoff in the S.D.N.Y.; and Judge William Alsup of the Northern District of California. Regardless of the result–and there have been a few I’ve privately bemoaned–you can… Continue Reading

Fail-Safe Classes and One-Way Intervention

Posted in Certification

The merits based (or "fail-safe") class (e.g., "everyone who was a victim of defendant’s fraud") has long been considered one of the best examples of a poorly-defined class: because the class is defined in terms of the merits, the class size fluctuates based on the verdict. A verdict for the plaintiff creates a sizable class;… Continue Reading

Are Uninjured Class Members Under-Compensated?

Posted in Certification

Despite the warnings, Wal-Mart Stores, Inc. v. Dukes did not herald the end of the class action, or even class action scholarship. Indeed, new debates have risen in its wake. One of the most interesting is what to do about classes where large numbers of class members might not have suffered any injury. Courts do… Continue Reading