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

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

That’s the question asked (and answered) by Texas law professor Robert G. Bone in his paper The Misguided Search for Class Unity. In it, Professor Bone argues that there are two views of the class action: (1) an “internal, outcome-based” view that tends to favor certification for the efficiency benefits, and (2) an “external, process-based” view that tends to oppose certification based on concerns about individual participation and legitimacy. According to Professor Bone, the external view has been ascendant, particularly with recent Supreme Court decisions that require more cohesiveness in a class before certification is appropriate. He believes … Continue Reading

In Ubaldi v. SLM Corp., No. 11-01320, 2014 U.S. Dist. LEXIS 38587 (N.D. Cal. Mar. 24, 2014), the plaintiffs sued student-loan institution Sallie Mae for allegedly imposing unenforceable choice-of-law provisions on some of its borrowers, as well as charging improper late fees and "usurious" interest.

The trial court denied certification on a number of grounds, including problems with the class definition and individualized issues that predominated. But I want to focus in on another of its reasons: the often-underused typicality requirement.

The defendant argued that at least one of the named plaintiffs (Chanee Thurston) was not typical of the … Continue Reading

 For some time, academics have been decrying the demise of the class action, arguing that the Supreme Court’s precedent makes it harder than ever to certify a class under Rule 23. And yet, as one practitioner I know observed, plaintiffs keep filing the things. And quite a few courts keep certifying them.

Now, however, at least one federal district court appears to be listening to the academy.

The case, In re Kosmos Energy Ltd. Secs. Litig., No. 3:12-CV-373-B, 2014 U.S. Dist. LEXIS 36365 (N.D. Tex. Mar. 19, 2014), appears to be an unremarkable stock-drop case, the exact kind that … Continue Reading

Class action lawyers are well aware that the burden to affirmatively demonstrate compliance with Rule 23 rests on the plaintiffs. Over the years, courts have elaborated somewhat on the burdens plaintiffs must meet for numerosity and commonality, but have remained somewhat vaguer when it comes to typicality.

Last week, a trial court in the Eastern District of Missouri took a leap into that void in Henke v. Arco Midcon, L.L.C., No. 4:10CV86, 2014 U.S. Dist. LEXIS 31810 (E.D. Mo. Mar. 12, 2014). Henke was an environmental class action alleging groundwater contamination from leaks from an oil pipeline. There were … Continue Reading

This week, we get our yearly reminder not to take the humble numerosity requirement for granted. In Spread Enterprises, Inc. v. First Data Merchant Services Corp., No. 11-CV-4743, 2014 U.S. Dist. LEXIS 22972 (E.D.N.Y. Feb. 22, 2014), the named plaintiff–a prepaid phone minutes company–sued a bank and a credit card payment processor for charging "excessive" fees for certain transactions on one of the processing platforms.

When the plaintiff moved for class certification, the defendants opposed on numerous grounds, including challenging commonality and predominance. They also argued that the definitions of each subclass, each of which referred to merchants who … Continue Reading

This week’s case continues a trend I’ve written about before: more courts are declining to certify class actions where they will not be able to ascertain class membership based on the evidence before them.

In Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC, 2014 U.S. Dist. LEXIS 18600 (N.D. Cal. Feb. 13, 2014), the plaintiff sued ZonePerfect alleging that it had fraudulently marketed its nutrition bars as "all natural" even though they contained a number of artificial ingredients.

When the plaintiff moved to certify a class, ZonePerfect pointed out one very large problem with her proposal: it did not … Continue Reading