McGuireWoods Fintech industry team leader David Reidy and appellate litigator Jonathan Urick bring us this succinct analysis of the Supreme Court’s hotly anticipated decision on the doctrine of “equitable tolling” in class actions:

Class-action plaintiffs cannot toll the statute of limitations indefinitely by filing copycat class actions until certification sticks, the U.S. Supreme Court held on Monday, June 11, in China Agritech, Inc. v. Resh.  The Court refused to extend American Pipe tolling—which stops the limitations clock for putative class members’ individual claims while a putative class action is pending—to successive, overlapping class claims.  After a district court dismisses … Continue Reading

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

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

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

Washington, DC-based litigator James Freije brings us an analysis of the Supreme Court’s latest class certification decision.

Resolving a current split amongst multiple federal circuits, the United States Supreme Court recently ruled in Microsoft Corp. v. Baker that federal courts of appeals lack jurisdiction to review orders denying class certification after plaintiffs voluntarily dismiss their claims with prejudice.  Justice Ginsburg wrote the majority opinion, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan, overturning the United States Court of Appeals for the Ninth Circuit, citing a lack of jurisdiction under 28 U.S.C. § 1291 (“§ 1291”).  In a separate opinion concurring … Continue Reading

Richard C. Beaulieu reports below on the Iowa Supreme Court’s affirmation of the trial court’s order certifying a class of individuals asserting claims against a corn milling facility based on allegations of air pollution.

Over the past two decades, large agricultural operations have become a popular target for plaintiffs’ attorneys.  Bringing claims under common law causes of action like negligence, trespass, and especially nuisance based on the environmental impacts of these agricultural operations, plaintiffs in these cases have frequently succeeded in winning substantial judgments.  While there have been some class actions based on these theories in the past, most such … Continue Reading

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

Some years are exciting in class action practice; others are tamer. In general, in any established area of the law, precedent accumulates only incrementally. And, with the modern Rule 23 entering its 50th anniversary year, it makes sense that this might be one of the years that would demonstrate that principle. There were no stunning reversals or announcements of new law this year. The Supreme Court cases promising fireworks this term were argued in 2015, but decisions held until 2016. So this year’s ten most important cases were mostly building blocks adding to pre-existing trends in the law. As a … Continue Reading

Warning: This is another “amending Rule 23 post.”  Regular discussion of actual class action litigation will recommence on Thursday.  While I assisted Lawyers for Civil Justice with its response to the Subcommittee’s proposals, the following is only my personal opinion.
Last week, the Rule 23 Subcommittee released its latest draft proposal for amending Rule 23.  (2015-1105 Rule 23 Subcommittee Report)
The Subcommittee has abandoned (or in a few cases, placed “on hold”) several of its proposed amendments.  Among them:
  • There is no longer an attempt to amend Rule 23(c)(4) to specify that it trumps Rule 23(b)(3).
  • There is
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It’s rapidly becoming conventional wisdom that Campbell-Ewald Co. v. Gomez (argued yesterday) is going to be a win for the plaintiffs.  Respected academics like Robert Klonoff have stated it, and respected reporters like Perry Cooper have quoted respected plaintiffs’ counsel like Deepak Gupta to the same effect.  But, dig a little deeper into the arguments they’re all using to justify their predictions, and it’s not quite as clear that Gomez will be decided in favor of the plaintiff.  Those arguments are:
The Court has no way to counter Justice Kagan’s dissent.  In a blunt dissent in Genesis Healthcare Continue Reading