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

 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.

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Rule 23(b)(1) is the forgotten stepchild in Rule 23 jurisprudence. Rule 23(b)(3) gets attention because it’s where the money is. Rule 23(b)(2) is essential to civil rights groups seeking injunctions, and drew attention from plaintiffs’ lawyers seeking an end-run around what they viewed as Rule 23(b)(3)’s more stringent requirements. But case law on Rule 23(b)(1)(A) (which allows class actions to prohibit inconsistent adjudications) and (b)(1)(2) has been notably sparse.

Which is why many lawyers might not have caught one of the strange developments in the wake of the Supreme Court’s ruling in Dukes. As Dean Robert Klonoff–author of, among … 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

 Commonality (Rule 23(a)(2)) and predominance (one half of Rule 23(b)(3)) are often considered the heart of the class action certification inquiry. Rightly so, for they both strike at the real question a judge must ask: do the class members have enough in common to justify binding them all together in a single case? Through the 1990s and 2000s, predominance was considered the more important inquiry. In the 2010s, it appears that commonality is gaining ground.

Ten Cases to Bring You Up to Speed:

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 Last week, Senator Al Franken (D-Minn) proposed a bill that would partially reverse the Supreme Court’s opinion in Wal-Mart Stores, Inc. v. Dukes.

According to Senator Franken’s press release, the Equal Opportunity Employment Restoration Act (good title) would add a section 4201 to 28 U.S.C.:

Section 4201(a) creates a new judicial procedure – called “group actions” – that workers can use when bringing employment discrimination cases. The requirements for establishing a group action are the same as the pre-Dukes requirements for maintaining a class action under Rule 23 of the Federal Rules of Civil Procedure—namely,

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Today’s case is interesting in no small part because it shows just how far class-action arguments have come in the last 18 months. In the latter half of 2010, most defendants faced with a class action would look primarily at adequacy (are the named plaintiffs good representatives?), typicality (do the named plaintiffs have the same injury and proof as the class?), and predominance (are there more individual issues than common issues?). Now, however, given recent trends in case law–particularly the increased focus on a "rigorous analysis"–more defendants are looking at numerosity [] (can the plaintiffs show that there are … Continue Reading

In Wal-Mart Stores, Inc. v. Dukes, Justice Scalia registered his disapproval of using statistics to litigate liability in a class action, writing

The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived

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 In the wake of Wal-Mart Stores, Inc. v. Dukes, plaintiffs and trial courts are still trying to determine exactly how to apply the clarified commonality standard of Rule 23(a)(2), and the standard for injunctive relief under Rule 23(b)(2). The good news for defendants, as demonstrated in the new case M.D. v. Perry, 2012 U.S. App. LEXIS 6061 (5th Cir. Mar. 23, 2012), the appellate courts are largely following the Supreme Court’s lead in Dukes. (My apologies: Google Scholar doesn’t have the opinion yet, and the Fifth Circuit website appears to be having difficulties.)

The plaintiffs challenged the state’s … Continue Reading

 At the DePaul symposium a few weeks back, Professor Suja Thomas argued that the Supreme Court should not take on "oddball" cases, because the outlying facts make for decisions that are too sweeping. (She’s made this argument before about Iqbal and Twombly, so you don’t have to wait for the DePaul Law Review’s Symposium Issue to get the basics.)

As I’ve mentioned before, Professor Thomas is no fan of oddball cases. She argues that:

the Supreme Court and some scholars, including Professor Richard Epstein, have justified the new standard on the basis of the costs in Twombly,

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