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

Last week, the Rule 23 Subcommittee of the Federal Rules Advisory Committee published its draft concept amendments to Rule 23.  You can find them here.   (They’re in the April 2015 Agenda Book.)  What follows is my personal reaction to the proposed concept amendments.  They will be subject to public comment, and, I imagine, vigorous further debate.
Here’s the good news.  The Subcommittee has made two completely unobjectionable proposals.  First, it would modify Rule 23(e) to require a statement of any side agreements before an objector withdraws an objection.  Greater transparency is always good.  Second, it would allow for emailed … Continue Reading

Cosmetics giant Maybelline markets Superstay 24 lipstick, which is supposed to be more comfortable, withstand heat and humidity, and go 24 hours without needing a transfer. Some customers decided that, despite the advertising, the lipstick did not last a full 24 hours without transfer; so they sued Maybelline claiming that it had violated various California fraud statutes.

As many lawyers know, California’s consumer fraud statutes have lesser reliance standards. For example, reliance is judged on an objective “reasonable consumer” standard that means plaintiffs often do not have to demonstrate individualized reliance to get a class certified.

So faced with … Continue Reading

 For some time, academics have been decrying the demise of the class action, arguing that the Supreme Court’s precedent makes it harder than ever to certify a class under Rule 23. And yet, as one practitioner I know observed, plaintiffs keep filing the things. And quite a few courts keep certifying them.

Now, however, at least one federal district court appears to be listening to the academy.

The case, In re Kosmos Energy Ltd. Secs. Litig., No. 3:12-CV-373-B, 2014 U.S. Dist. LEXIS 36365 (N.D. Tex. Mar. 19, 2014), appears to be an unremarkable stock-drop case, the exact kind that … 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

At this point, I’m well aware that I tend to sound like an old crank when reviewing class action scholarship; much of it repeats the same old stuff, predicts the imminent demise of the class action in its current form, and looks at the same Supreme Court cases instead of digging into where the real action happens. And that is why I am happy to report that this year, there were quite a few articles that did take different approaches to various problems in class actions. Yes, we still had some of the same Supreme Court rehashes, but even some … Continue Reading

2013 did not offer the blockbuster docket in front of the Supreme Court that 2011 did, but that didn’t stop the Court from issuing a number of opinions whose effects will be felt for some time to come. In addition, a number of other courts took bold steps to either support or constrain class action practice. The key trends coming out of 2013: watch out for predominance, and watch out for tricky settlement provisions. Also, pay attention to the complaint; key flaws can still lurk in there.

(1) Comcast Corp v. Behrend (Supreme Court).  This case was … Continue Reading

 In the wake of Comcast Corp. v. Behrend, a number of different courts have weighed in on the question of whether variations in damages should preclude certification of a litigation class. Last month, however, the District of the District of Columbia issued an opinion which implied that variations in damages might preclude the certification of a settlement class.

The case is Richardson v. L’Oreal USA, Inc., 2013 U.S. Dist. LEXIS 158599 (D.D.C. Nov. 6, 2013).  And it’s another Center for Class Action Fairness case. (You can read Ted Frank’s original writeup of the case here, and let … 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