Comcast Corp. v. Behrend

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

 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 & Co. (2012) (2013) And so it is noteworthy that, despite his ruling in Sears, he has also authored the opinion in Parko v. Shell Oil Co., No. 13-8023, 2014 U.S. App. LEXIS 1018 (7th Cir. Jan. 17, 2014).… Continue Reading

This week, we ask the question: what happens to a class action after the defendants win an appeal?

The case posing this question is Glaberson v. Comcast Corp., No. 03-6604, 2013 U.S. Dist. LEXIS 160892 (E.D. Pa. Nov. 12, 2013). And the facts should be familiar: Glaberson is the current name for the case the Supreme Court heard as Comcast Corp. v. Behrend

After the Supreme Court reversed Behrend, the parties began litigating the question of what happened to the case next. The plaintiffs argued that they should have the opportunity to file another motion for class … Continue Reading

 In the past few years, Professor Mark Moller of DePaul University Law School has proven to be one of the most thoughtful critics of modern class action law in the legal academy. While most commentators take on class action decisions from either a pro-plaintiff or pro-defendant standpoint, Professor Moller appears intent on evaluating these opinions according to the criteria set out by the arguments they advance. From that standpoint, he pointed out that class action defendants’ "originalist" arguments about due process were influenced heavily by a no-longer-favored line of Supreme Court cases. And now, as he argues in his … Continue Reading

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 certify these cases, for settlement purposes if nothing else. But should they?

One plaintiff attorney-scholar group (Joshua Davis, Eric Cramer, and Caitlin May) says "yes." In their paper The Puzzle of Class Actions with Uninjured Members, they argue that … Continue Reading

 It’s a busy week for me, so here’s just a brief rundown of two opinions vacated and remanded from the US Supreme Court:

RBS Citizens NA v. Ross (7th Cir. 2012). (More here.)  The Seventh Circuit affirmed certification of a wage-and-hour case, despite what it conceded was a less-than-optimal order certifying the class. RBS appealed to the Supreme Court to ascertain how the certification fit in with the Dukes commonality standard. The Supreme Court vacated and remanded the case in light of its opinion in Comcast Corp. v. Behrend.

Whirlpool Inc. v. Glazer (6th Cir. 2012). The Sixth … Continue Reading

On Monday, the Supreme Court heard arguments in two different class actions, united by a common problem.

The first, Comcast Corp. v. Behrend, asked whether a trial court should hold plaintiffs to the Daubert standard for expert testimony at class certification, a question that has divided federal circuits for several years. Due in part to a difficult record below (Comcast had not actually registered a Daubert objection), the Justices argued back and forth about whether there was an issue to decide at all, and, if so, what it was. At one point, Justice Kagan remakes in frustration:

I

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