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

Tag Archives: merits inquiry

What Is the Standard for Class Certification?

Posted in Certification

The answer is nowhere near as simple as you might think. Everyone knows that a court is supposed to conduct a “rigorous analysis,” but what that means in practice is not quite as clear. For example, last year, the Supreme Court (in dicta) made a statement about Rule 23 that many, including myself, thought would… Continue Reading

At Argument, Supreme Court Struggles with Fact-Finding

Posted in Certification

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… Continue Reading

Is the New Group Action Bill Cause for Concern?

Posted in Strategy

 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”… Continue Reading

Klonoff on Class Action Decline – The Good, the Bad, and the Ugly

Posted in Certification, Scholarship

Robert Klonoff, Dean of the Lewis & Clark Law School, has produced a new article, The Decline of Class Actions (forthcoming from the Washington University Law Review), that provides a much-appreciated overview of recent developments in class action law from a plaintiff’s perspective. (Disclosure: Dean Klonoff provided a very nice blurb for the Class Action Playbook.)… Continue Reading

The Problem with Overbroad Class Defintions

Posted in Certification

Class definitions can be extremely difficult for plaintiffs. In addition to holding that merits-based class definitions cannot support certification, courts have begun to hold that some definitions are simply too broad. Overbroad definitions usually are symptomatic of other problems with the proposed class. Want an example? Take the case of Kemblesville HHMO Center LLC v…. Continue Reading

Classic Cases – Newton v. Merrill Lynch

Posted in Certification

 In the 1990s, a group of attorneys sued a number of securities broker-dealers nationwide. They alleged that the broker-dealers had executed a number of securities orders at the "National Best Bid and Offer" (NBBO) price–which would provide a customer with the lowest available ask or the highest available bid for a security–an industry-wide practice at… Continue Reading

Classic Cases – Eisen v. Carlisle & Jacqueline

Posted in Certification

 This week, we’re going to address one of the longest-standing debates in class-action litigation: How much may a court delve into the merits of a class action when deciding certification? Plaintiffs often argue "not at all." Defendants often argue "as much as necessary." (Though not always; when defendants file motions to strike class allegations, they… Continue Reading

Loss Causation – Archdiocese of Milwaukee Supporting Fund, Inc. v Halliburton Co.

Posted in Certification

Last Friday, the Supreme Court granted certiorari in Archdiocese of Milwaukee Supporting Fund, Inc. v Halliburton Co. This is the fourth certiorari grant this term for a class action. So what’s the issue in this case? Loss causation. In securities cases, plaintiffs are often allowed to rely on a theory called "fraud on the market," which… Continue Reading