2017 was an unusually eventful year for lawyers who track the ascertainability requirement, which had, for the last five or so years, become a staple argument for class action defendants.  Here are the top issues that class action litigators had to contend with.

Circuit split on administrative feasibility.

This year, both the Second and the Ninth Circuits have held that administrative feasibility is not required to show ascertainability.  The Ninth Circuit may have gone even further: some of the language it used suggests that it may not view ascertainability a requirement at all for certifying a class.  (It had … Continue Reading

With the year ending, and McGuireWoods’s webinar next week on class actions’ Hot Issues of 2017 approaching, this seems like a good time to take note of a few of the trends we have seen arising in class actions over the last year.  Consider these appetizers for the main course on December 19.  So, with no further ado, here’s a taste of four ways in which class action lawyers have dealt with the Supreme Court’s ruling in Spokeo v. Robins in 2017.

Emerging Circuit split over data breaches? Appellate courts are split in interpreting Spokeo, particularly with regard to data … Continue Reading

Chicago-based litigators Sarah Zielinski and Jason Chrestionson bring us an update on the issue of individualized inquiry and Article III’s injury-in-fact requirement under the Supreme Court’s landmark decision in Spokeo, Inc. v. Robins.

Earlier this year, the Northern District of Illinois declined to certify a Telephone Consumer Protection Act (TCPA) class action even though the key issue in the case—whether class members had provided prior express written consent to receive prerecorded telemarketing calls—appeared to be a common question.  In Legg. v. PTZ Insurance Agency, Ltd., it seemed apparent “that none of the proposed class members” provided prior express … Continue Reading

Below, Chicago partner Michael R. Phillips shares his thoughts on a petition for certiorari that could have a big impact on the evidentiary standards applied to plaintiffs pursuing class certification.

A major California grower has asked the Supreme Court to resolve a circuit split by holding that evidence used to support class certification must be admissible.  The U.S. Court of Appeals for the Ninth Circuit is currently one of only two federal courts of appeal that allow class certification to be based on evidence that would not satisfy the standards for admissibility at trial.  A uniform rule requiring class certification … Continue Reading

Los Angeles labor and employment litigators Michael Mandel and Amy Beverlin bring us perspective on three class-action waiver cases currently awaiting decision by the Supreme Court, as well as a potential path forward for class-action waivers in employment contracts.

Everyone is talking about the future of class-action waivers in employment arbitration agreements after the Supreme Court launched its new term this month with oral argument in three closely-watched cases—National Labor Relations Board v. Murphy Oil USA, Inc. (5th Circuit), Epic Systems Corp. v. Lewis (7th Circuit), and Ernst & Young LLP v. Morris (9th Circuit).  In its impending decision, … Continue Reading

This week, partner Alicia A. Baiardo and associate S. Virginia Bondurant Price report on a recent dismissal of a product liability class action.

A recent 40-page opinion from the Central District of California illustrates how a Rule 12(b)(6) motion is still a viable vehicle to fight back against putative class actions.  We have seen an increase in the number of product liability consumer class actions over the past ten or so years where plaintiffs expressly disclaim personal injury and wrongful death damages and only allege damages of repair of the product, diminution in value of the product, overpayment of the … Continue Reading

Brussels-based antitrust partner Matthew Hall brings us an update on two ongoing UK antitrust class actions and one on the horizon.

Antitrust class actions in the UK are beginning to take hold before the specialist Competition Appeal Tribunal (CAT), but progress is not all smooth.  Two cases have been filed and another is about to be filed.

The first claim, started May 25, 2016 under the rules introduced on October 1, 2015, was relatively small, with an alleged claim value of £7.7 million, including interest.  The claim was based on a type of resale price maintenance (RPM)—specifically, a finding … Continue Reading

Below, Chicago-based litigator Matt Gold weighs in on the implications of last week’s Supreme Court decision rejecting the sliding scale approach to specific jurisdiction in mass tort proceedings.

On June 19, 2017, the Supreme Court reinforced its narrow application of specific jurisdiction in mass tort proceedings in an 8-1 decision in Bristol-Myers Squibb Company v. Superior Court of California.  In the class action context, this ruling may impede future class representatives attempting to forum shop by filing suit in a state court that not only lacks general jurisdiction over the defendant, but also lacks a direct connection to the … Continue Reading

Raleigh-based litigator Joan Dinsmore brings us a discussion of yet another memorable opinion by Seventh Circuit Judge Richard Posner.

Earlier this year, the United States Court of Appeals for the Seventh Circuit refused to reconsider en banc its decision reversing certification of a class of glaucoma sufferers who claimed that eye drop containers dispense drops that are too large, forcing them to purchase eye drops more frequently. In so doing, the Seventh Circuit let stand a ruling in which Judge Richard Posner—aided by another of his now-infamous cat analogies—got frisky with the plaintiffs’ theory of liability, which he claimed was … Continue Reading

Diane Flannery and Annie Cai Larson provide their thoughts below on a Seventh Circuit Court of Appeals decision from earlier this year that held a counterclaim-defendant could not rely on CAFA to avoid state court. 

The Class Action Fairness Act (CAFA) was enacted in 2005 to expand the subject-matter jurisdiction that Federal courts had over class actions.  Yet CAFA’s reach is not unlimited, and in some instances, a corporation may still be stuck litigating a large-scale class action in state court—a venue friendly to class action plaintiffs.

Earlier this year, the Seventh Circuit Court of Appeals held in Tri-State Water Continue Reading