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

Tag Archives: superiority

Agencies as Gatekeepers – Implications for Superiority

Posted in Scholarship

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… Continue Reading

Class Actions as ADR

Posted in Scholarship

 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… Continue Reading

Cy Pres in Contested Class Certification – Hughes v. Kore of Indiana Enterprise Inc (7th Cir 2013)

Posted in Certification

 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… Continue Reading

Whistleblowing and Superiority – Better Bounty Hunting

Posted in Certification

 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… Continue Reading

Superiority and Statutory Class Actions – Hughes v Kore of Indiana Ent Inc

Posted in Certification

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,… Continue Reading

Predominance and the Privacy Class Action – In re Hannaford Bros

Posted in Certification

 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… Continue Reading

Superiority as Unity

Posted in Scholarship

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… 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