Raleigh-based litigator Joan Dinsmore brings us a discussion of yet another memorable opinion by Seventh Circuit Judge Richard Posner.

Earlier this year, the United States Court of Appeals for the Seventh Circuit refused to reconsider en banc its decision reversing certification of a class of glaucoma sufferers who claimed that eye drop containers dispense drops that are too large, forcing them to purchase eye drops more frequently. In so doing, the Seventh Circuit let stand a ruling in which Judge Richard Posner—aided by another of his now-infamous cat analogies—got frisky with the plaintiffs’ theory of liability, which he claimed was … Continue Reading

Challenges to ascertainability have become noticeably more popular over the last few years. As a result, defendants will sometimes challenge the class definition even though there are deeper problems with the class. As a recent case shows, however, it is usually worth probing deeper than the definition in one’s arguments.

Steimel v. Minott, No. 1:13-cv-957-JMS-MJD, 2014 U.S. Dist. LEXIS 38228 (S.D. Ind. Mar. 24, 2014) offers some object lessons in what ascertainability problems can really mean. In Steimel, the plaintiffs sued the Secretary of the Indiana Family and Social Services Administration after a change in policy (transferring developmentally … 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

 After watching an infomercial, Harry Wiedenbeck bought a "comprehensive" medical health insurance plan for himself and his wife. When the insurer subsequently denied a claim based on his wife’s hospitalization, Mr. Wiedenbeck filed a class action alleging fraud and bad faith on behalf of all Wisconsin residents who had bought the plan.

The subsequent case, described in Wiedenbeck v. Cinergy Health, Inc., No. 12-cv-508-wmc, 2013 U.S. Dist. LEXIS 134672 (W.D. Wis. Sep. 20, 2013), contained a number of procedural machinations, including the use of an offer of judgment. But I’d like to focus on the class certification debate, because … Continue Reading

A group of Hispanic and African-American borrowers sued the National City Bank, alleging that its "Discretionary Pricing Policy" for home mortgages had resulted in higher borrowing costs for racial minorities. During discovery, the parties engaged in a mediation and reached a $7 million settlement, which a trial court in the Eastern District of Pennsylvania preliminarily approved.

Between preliminary and final approval, however, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, which held that a discretionary promotion policy could not support a finding of commonality. The trial court decided that the same reasoning would apply to a discretionary pricing … Continue Reading

A few weeks ago, with little fanfare, the Tenth Circuit clarified the standard of evidence it requires for class certification, and the result is one that will be extremely helpful for defendants. The case, Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., No. 12-3176, 2013 U.S. App. LEXIS 13842 (10th Cir. Jul. 9, 2013), is a gas royalty class action. These lawsuits have been fairly popular among plaintiffs’ lawyers, because of the perception that they are easy to certify.

In Roderick Trust, the Trust alleged that the defendant gas company "systematically underpaid royalties" but deducting … Continue Reading

 Longtime readers may remember that last February I had the pleasure of participating in the DePaul Law Review’s symposium on Class Action Rollback.  The article from that symposium will be appearing shortly in the DePaul Law Review, and a very late draft of it is now available at SSRN. Without further comment, here is the SSRN abstract for the article:

Most discussions of legal doctrine assume that litigants will react to a change in doctrine, but not that they will try to influence that doctrine further by adopting new arguments or finding loopholes in the doctrine itself.

Continue Reading

 Class action practice provides plaintiffs with some odd pleading incentives. Two that cause continual problems are the need to keep things vague (in order to emphasize commonalities over any variations that may arise from more specific details) and the need to frame one’s complaint as broadly as possible to maximize the potential recovery in settlement negotiations.

As it turns out, it is in fact possible to plead a complaint that is too broad and too vague. In fact, the Eastern District of Louisiana entertained a case like this a few months ago, in Duvio v. Viking Range Corp., 2013 … Continue Reading

Property-rights class actions are difficult to bring, because property tends to be unique, and class actions do not work well with unique claims. But that doesn’t stop plaintiffs from trying to certify classes asserting property based claims.

This week’s case–Onyx Props. LLC v. Bd. Cty. Comm’ners of Elbert Cty., 2013 U.S. Dist. LEXIS 7151 (D. Colo. Jan. 17, 2013).–arises out of one such effort. The specific details are convoluted, but basically amount to the following: two developments in Elbert County, Colorado were, for various reasons, rezoned from an "A-Agriculture" designation to an "A-1" designation. This was apparently important … Continue Reading

As marketing guru Seth Godin has put it frequently, we live in an attention economy.  Most of us are busy people, and getting unwanted interruptions can be a huge hassle. That is one reason why class actions against blast-faxers and robo-callers have such appeal; they seem like the ideal way to punish people who won’t take the time to individually market to us. But just because these interruptions can be truly annoying does not mean they make good class actions.

Case in point: Hartman v. United Bank Card Inc., 2012 U.S. Dist. LEXIS 144759 (W.D. Wash. Oct. 4, … Continue Reading