Header graphic for print
Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Tag Archives: Rule 23(b)(2)

When Ascertainability Is Just the Symptom

Posted in Certification

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,… Continue Reading

Variations in Damages & Settlement Classes – Richardson v. L’Oreal USA, Inc.

Posted in Settlement

 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… Continue Reading

Daubert and Ascertainability – Coleman v. Union Carbide Corp

Posted in Certification

A heavy-metals plant in Alloy, West Virginia provided a foundation for the local economy throughout the 20th century. (Hence the name Alloy.) In the 21st century, it provided the basis for an extensive class action lawsuit–Coleman v. Union Carbide Corp., 2013 U.S. Dist. LEXIS 140613 (S.D. W. Va. Sep. 30, 2013)–which alleged that decades of substandard emissions controls… Continue Reading

Overbreadth and Injunctive Relief – Pileggi v. Wells Fargo Bank, NA

Posted in Certification

 At this point in my practice, there are certain judges whose opinions I just automatically look for: the Chicago triumvirate of Posner, Easterbrook, and Wood; the often-covered Judge Rakoff in the S.D.N.Y.; and Judge William Alsup of the Northern District of California. Regardless of the result–and there have been a few I’ve privately bemoaned–you can… Continue Reading

Real Property is a Real Problem for Class Actions -Onyx Props. LLC v. Bd. Cty. Comm’ners of Elbert Cty

Posted in Certification

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…. Continue Reading

Class Action Summer Camp – Rule 23(b)(2)

Posted in Certification

Rule 23(b)(2) is available for class actions that seek injunctive or declaratory relief. It does not allow for opt-outs. Until last year, seeking Rule 23(b)(2) certification had become a strategic alternative for plaintiffs whose claims might not be certified under Rule 23(b)(3). Now, it’s less clear that this alternative is available for "traditional" class actions…. Continue Reading

Cohesiveness and Commonality – MD v Perry

Posted in Certification

 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…. Continue Reading

More on Commonality – Jamie S. v. Milwaukee Public Schools

Posted in Certification

Six months after the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, courts are still working out how best to apply the newly-clarified standard of commonality. This week, the Seventh Circuit offered some further guidance. In Jamie S. v. Milwaukee Public Schools, the plaintiffs–seven disabled public-school students–challenged Milwaukee’s implementation of the Individuals with Disabilities Education… Continue Reading