This week we consider the Sixth Circuit’s take on how Rule 23’s ascertainability requirement overlaps with the different pathways to certification under Rule 23(b), as well as some post-Spokeo dismissals of putative class actions for lack of standing.

Sixth Circuit Holds No Showing of Ascertainability Required for 23(b)(2) Class Action:  The contours of Rule 23’s implicit “ascertainability” requirement are rarely clearly defined, and often differ between circuits.  In affirming the district court’s certification of a class of individuals contesting the police department’s method of clearing the streets at 3:00 a.m., the Sixth Circuit reminded practitioners that the … Continue Reading

This week we take a look at a couple major recent decisions in product-labeling class actions, as well as a close call the Supreme Court will not be deciding this term.

Ninth Circuit Rejects Class Counsel’s Damages Theory, but Leaves a Side Door to Class-wide Relief Open:  The Ninth Circuit’s reversal of the lower court’s determination that an “all natural fruit” label on fruit packed in synthetic citric and ascorbic acids was not likely to deceive consumers as a matter of law has attracted a lot of attention in the world of food-labeling litigation.  The Court vacated an award … Continue Reading

Brussels Antitrust/Competition partner (and English lawyer) Matthew Hall brings us an update on antitrust class actions filed under new procedures in the UK.

Antitrust class actions in the UK are beginning to take hold before the specialist Competition Appeal Tribunal (the “CAT”).  The two filed to date show the possibilities at different ends of the value scale and the wide range of fact patterns that can be relevant.

The first claim, filed on May 25, 2016 under the new rules introduced on October 1, 2015 (see case page here), is relatively small, with an alleged claim value of GBP … Continue Reading

This week we consider a decision that illustrates how the suitability—or unsuitability—of certain causes of action for certification can render certain defendants more susceptible to class actions than others, as well as a state court’s specific objection to a proposed class action settlement.

Breach of Implied Warranty of Merchantability Claim Provides Path to Certification Where Fraud Claim Dead Ends:  Fraud is a notoriously difficult claim to litigate on a class-wide basis due to the individualized proof required to meet the reliance element. In the context of false advertising claims, an unintended consequence of this is that it may be … Continue Reading

Just a brief update today.  Last week, the latest edition of the Cato Supreme Court Review was published, and it included an article by yours truly entitled Litigation Matters: The Curious Case of Tyson Foods v. Bouaphakeo.  Here’s the abstract from SSRN:

The general assumption when analyzing Supreme Court jurisprudence is that the opinion is the product of a clash between the justices (and their 30-odd clerks) and their specific ideological predilections. And there is no question that judges — especially those on the Supreme Court and the various federal appellate judges — matter in the development of

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This week we take a look at how a trial court’s evidentiary rulings can foreclose pathways to appealing a ruling on certification down the line, as well as a Hail Mary appeal by a group of Super Bowl ticketholders that fell harmlessly to the turf. 

Exclusion of Expert by District Court Renders Certification Appeal a Quick Exercise:  The Ninth Circuit recently affirmed denial of class certification in a putative class action filed against an automaker over allegedly defective brakes, based on its determination that there was no evidence of a common defect.  What may be more interesting to practitioners … Continue Reading

The long-running battle over collective action waivers in the arbitration clauses of employment agreements continues to rage in the Courts of Appeals.  Two recent decisions (and the cert petitions filed in their wake) may well lead the Supreme Court to consider once again the thorny relationship between the class/collective action mechanism and federal arbitration law.

Just weeks ago, a divided panel of the Ninth Circuit delivered its opinion in Morris v. Ernst & Young, LLP, vacating an order by the N.D. Cal. that would have compelled individual arbitration of claims that the defendant misclassified employees in order to deny … Continue Reading

Often, when a plaintiffs’ counsel seek to certify a class asserting a hard-to-prove financial injury, they will rely on a statistics or economics expert to demonstrate that there has been some kind of “common overcharge” for the product at issue.  This method is extremely common in antitrust class actions, but also shows up increasingly in various kinds of consumer class actions, including product liability class actions (“we would not have paid this much for a product with a defect”) and food-labeling class actions (“we would not have paid so much for Nutella if we’d known it was sugary”).
The “common
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In August, while we were all on vacation, beating the heat, or recovering from a busy first half of 2016, the Advisory Committee published the new proposed Rule 23 for public comment.
The proposed changes here fall into several categories:
Notice.  Rule 23’s notice provision gets amended to allow for technological change.
Preliminary approval.  Preliminary approval is dead.  Long live preliminary approval!  In other words, the Committee has taken a stand (in its Comment) that the moniker “preliminary approval” is misleading.  But it has explicitly enshrined a reference to the initial hearing where the court determines whether
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This week we take a look at a Ninth Circuit decision giving short shrift to a Rule 23(f) appeal and revisit two repeat players on Class Action Countermeasures: arbitration clauses and challenges to a class representative’s standing under Spokeo.

Ninth Circuit Succinctly Shoots Down Appeal from Order Granting Certification:  The cost of litigating a claim on a class-wide basis can certainly justify seeking an interlocutory appeal from an order granting certification, but that doesn’t mean that such relief is easily obtained.  The Ninth Circuit reminded practitioners of that difficult truth last week in a one-page order summarily denying the … Continue Reading