Historically, courts have grudgingly accepted the professional plaintiff in class action practice. As Judge Easterbrook of the Seventh Circuit once said, in the context of a FCRA class action, the word professional “implies experience, if not expertise.” One law student note offered one possible strategy for arguing that professional plaintiffs are inadequate class representatives: focus on their relationship with class counsel.

In Donaca v. Dish Network, LLC, No. 11-cv-02910-RBJ-KLM, 2014 U.S. Dist. LEXIS 19740 (D. Colo. Feb. 18, 2014), the District of Colorado offers another possible argument.  Donaca involved alleged robocalls made in violation of the TCPAContinue Reading

One of the perennial questions at class certification (at least under Rule 23(b)(3)) is whether the class is superior to other forms of adjudication. Defendants will often raise individual lawsuits as a viable alternative, but, in cases involving heavily regulated industries, they may also invoke the possibility of allowing a regulatory agency to address the problem as well. Stanford professor David Freeman Engstrom has pursued that argument to its logical extreme in his epic (97-page) Yale Law Journal article Agencies as Gatekeepers. (PDF here.)

Professor Engstrom’s primary focus is on whether any of the various scholarly proposals to give … Continue Reading

 Houston law professor D. Theodore Rave’s new paper Settlement, ADR, & Class Action Superiority (forthcoming from the Journal of Tort Law) contains an interesting insight about class action practice: when you get right down to it, there is little functional difference between (1) a class action settlement, (2) an AT&T "gold-plated" arbitration clause, and (3) a customer service action like a voluntary recall.  Or, as Professor Rave puts it:

Functionally, what is happening with class settlements, voluntary compensation schemes, and mandatory arbitration clauses in form contracts is very similar. Private actors are effectively designing a system of

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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

 Judge Posner is often considered to be a pro-defense jurist, particularly in the area of class actions. Lately, he’s been proving himself to be more independent-minded than that. First, he allowed certification of a washing machine class, justifying certification despite some outcome-determinative individualized issues because predominance is a matter of "efficiency," and should not be reduced to "bean-counting."

And last week, he authored an opinion that reversed decertification of an Electronic Funds Transfer Act (EFTA) class action.

In Hughes v. Kore of Indiana Ent., Inc., No. 13-8018, 2013 U.S. App. LEXIS 18873 (7th Cir. Sep. 10, 2013)Continue Reading

 It’s an odd quirk of class action practice that an automotive company defending a products-liability class will be quick to invoke the superiority of its regulator (the National Highway Traffic Safety Administration, or NHTSA), while a securities defendant will rarely–if ever–argue that the case is better handled by the SEC. (The difference may be the relationship between the industry and the agency: car companies regularly self-report issues to NHTSA, no one voluntarily brings the SEC down upon themselves.)

Vanderbilt Professor Amanda Rose makes an argument for changing that state of affairs in her paper Better Bounty Hunting: How the Continue Reading

Kathleen Seabron filed a lawsuit challenging the red tape her insurance company required before paying an automobile accident claim as bad faith. After the insurer removed her claim to federal court, she turned it into a bad faith "class action" and added several other plaintiffs. The result was Seabron v. Am. Family Mut. Ins. Co., No. 11-cv0196-WJM-KMT, 2013 U.S. Dist. LEXIS 99166 (D. Colo. Jul. 16, 2013).

After hotly-contested discovery, the plaintiffs moved to certify a class. The court expressed "significant reservations" about whether the plaintiffs had met the Rule 23(a) requirements, but assumed that they had so it … Continue Reading

This week’s case, Hughes v. Kore of Indiana Ent., Inc., No. 1:11-cv-1329-JMS-MJD, 2013 U.S. Dist. LEXIS 95849 (S.D. Ind. Jul. 10, 2013), involved a certified class alleging violations of the Electronic Funds Transfer Act. (EFTA–which requires banks to post fee notices physically on their ATMS–is one of those statutes that, at least on its surface, lends itself to certification, because it requires only a technical violation, not a finding of actual damages.)

But a funny thing happened on the way to the class trial.

A few weeks before trial, the Court recognized sua sponte that Mr. Hughes

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 In late 2007 and early 2008, the Hannaford Brothers Grocery stores suffered a security breach: thieves stole the debit and credit card data of thousands of customers. As one might imagine, a number of lawsuits followed, including a number that were consolidated into litigation in the District of Maine. After extensive pretrial litigation in various courts, the trial court was faced with the question of whether to certify a class action that sought damages for card replacement fees and purchases of data protection products.

In the resulting opinion, In re Hannaford Bros. Customer Data Security Continue Reading

Professor Jay Tidmarsh of the University of Notre Dame has a new article on superiority: Superiority as Unity, 107 Nw. U. L. Rev. 565 (2013). The piece is heavily influenced by Martin Redish’s book Wholesale Justice.  In particular, Professor Tidmarsh takes Professor Redish’s critiques of the class action’ flaws seriously, and proposes a new set of inquiries (which he calls "superiority," even though it is not really the Rule 23(b)(3) superiority we know) as a test for when a class action is appropriate.

From the abstract:

This Essay begins from the opposite premise: that class actions should be

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