Sometimes settlement with a putative class of nationwide consumers is the best option for resolution. However, since the initial ruling of the Ninth Circuit in In re Hyundai & Kia Fuel Econ. Litig., the mechanism to go about doing so has been in flux. On June 6, 2019, the full en banc Ninth Circuit finally answered class action practitioners’ questions and affirmed the district court’s June 2015 final settlement approval order and certification of a nationwide class of consumers. The decision unravels the prior ruling of a divided three-judge panel of the Ninth Circuit, which previously vacated the class … Continue Reading
As the new year begins, this is a good time to recap two of the major Supreme Court decisions from the past year impacting class action law, and to look ahead to a couple big decisions on the horizon.
Arbitration and Class Actions
First, in Epic Systems Corporation v. Lewis, the Court confirmed that class action waivers in arbitration agreements are enforceable in employment contracts, even where the employee is covered by the National Labor Relations Act (NLRA). Within a year after the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, which held that the … Continue Reading
A number of changes to Fed. R. Civ. P. 23 took effect on December 1, 2018. They’ve been in the works for some time, so no surprises, but now is a good time to summarize them. The changes deal primarily with class settlements and objections:
Rule 23(c)(2)(B), which deals with class notice, has been expanded to encompass proposed settlement classes. Giving notice of proposed settlement classes is now discretionary under Rule 23(e) as discussed below.
Rule 23(c)(2)(B) also added a sentence specifying that the class notice may be made by U.S. Mail, electronic means, or other appropriate means. … Continue Reading
Just a brief update on the 9th Circuit’s most controversial class-action case of the year. As expected, the proponents of the settlement that was rejected have appealed the case to the Ninth Circuit en banc.
What is slightly less expected is the alliance of interests that have filed amicus briefs. As Law360 reports, they include both automotive trade groups and consumer advocacy groups. (Unfortunately, the article does not include links to the amicus briefs.)
The plaintiffs’ advocacy groups have a clear cut argument: they have always asked for a minimal predominance requirement. Consumer groups and pro-manufacturing groups, … Continue Reading
Earlier this week, in In re Hyundai & Kia Fuel Efficiency Litig., the Ninth Circuit vacated a nationwide class action settlement, ruling that the lower court had abused its discretion by not considering whether the variations in the consumer-protection laws of the fifty states might predominate over common issues in the case. The ruling (by Judge Ikuta) was controversial from the start, arriving with an impassioned dissent from Judge Nguyen. And it’s that controversy that makes this opinion worth watching.
The facts of the case will sound familiar to experienced litigators. In the wake of an EPA investigation, several … Continue Reading
Today, we at Class Action Countermeasures are proud to post an analysis of the recent Target litigation appellate opinion by members of our class action and data privacy groups: Laura A. Lange, Shawna J. English, and Bethany Lukitsch.
The $10 million settlement class in the Target data breach case was unraveled by the Eighth Circuit Court of Appeals in a recent decision that will force the district court to address the impact of the Supreme Court’s decision in Spokeo v. Robins. The Eighth Circuit remanded the case to the district court, finding that the lower court … Continue Reading
A few weeks ago, the Duke Law Center for Judicial Studies held a conference on class action settlements in San Diego, to discuss best practices in the wake of the likely Rule 23 amendments. Like all of its conferences, this one was held under the Chatham House Rule, which dictate that you can repeat the substance of anything said but not the identity of the speakers. The candor these rules foster is extraordinary, and lead to valuable discussions. So, with that in mind, here are the five most important things attendees took away from the conference.
- Plaintiff-oriented amendments
I’ve been busy this week with a number of things, but a few of them, including the upcoming amendments to Rule 23 and prepping for a Strafford webinar on Thursday, have me thinking about the proper role of objectors again.
I think I’ve mentioned before that a number of class action lawyers (especially on plaintiffs’ side) really don’t like those who come in and try to improve settlements. Some of this is simple financial self-interest: barring a quick-pay provision, class counsel doesn’t get paid until the settlement is finalized. But some of this is also actual distaste. In … Continue Reading
Frequently, a class action complaint will set forth an elaborate theory of why the defendant’s actions were negligent or wrongful, but fall short when trying to identify how that conduct has harmed the class members. This kind of complaint invites a motion to dismiss on the grounds that the plaintiff has failed to demonstrate constitutional standing by identifying a “concrete, particularized, and actual or imminent” injury traceable to the defendant’s actions.
When these motions are successful, it’s a great day for the defense, but court dockets are littered with denied (or simply undecided) Rule 12(b)(6) motions challenging a plaintiff’s constitutional … Continue Reading