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

 Gabriel Carrera, along with many others like him, bought Bayer’s One-A-Day WeightSmart diet supplement. Apparently, he didn’t lose the weight he wanted, because he filed a class action alleging that Bayer had fraudulently claimed that the supplement’s use of epigallocetechin gallate (a green tea extract) boosted metabolism and assisted weight loss.

It turns out, however

 At this point in my practice, there are certain judges whose opinions I just automatically look for: the Chicago triumvirate of Posner, Easterbrook, and Wood; the often-covered Judge Rakoff in the S.D.N.Y.; and Judge William Alsup of the Northern District of California. Regardless of the result–and there have been a few I’ve privately bemoaned–you can

The merits based (or "fail-safe") class (e.g., "everyone who was a victim of defendant’s fraud") has long been considered one of the best examples of a poorly-defined class: because the class is defined in terms of the merits, the class size fluctuates based on the verdict. A verdict for the plaintiff creates a sizable class

 Brenda Kennedy was hospitalized in 2009 for four days. She had an insurance policy from United American that paid benefits for each day that she spent in the hospital, and she assigned those benefits to the hospital. When she received her hospital bill, she discovered that it had only covered three days, not four. So

Despite the warnings, Wal-Mart Stores, Inc. v. Dukes did not herald the end of the class action, or even class action scholarship. Indeed, new debates have risen in its wake. One of the most interesting is what to do about classes where large numbers of class members might not have suffered any injury. Courts

 … from November’s cases so far:

  • CAFA has not changed the rule that a counterclaim cannot confer federal jurisdiction.  Resurgent Capital Servs., LP v. Thomason, 2012 U.S. Dist. LEXIS (W.D. Mo. Nov. 5, 2012) (remanding case).
  • Courts get suspicious when parties widen the scope of a class action during settlement negotiations.  Smith

Northside Chiropractic doctor Michael Dubick made the mistake of–after a cold call from salesmen–buying advertising space in Yellowbook. He negotiated for a certain kind of advertisement, but the published ad looked nothing like what he had asked for, and lacked even basic information about his business (like his name). So he sued, and added class