A group of Florida landowners sued Raytheon Company, accusing it of contaminating their groundwater by improperly disposing of hazardous waste. The plaintiffs put up an expert who testified that he could construct a statistical model that would demonstrate liability and damages on a classwide basis.  Raytheon put up its own experts, who argued that plaintiffs’ method of defining the affected area was not consistent with "applicable professional standards," and that their expert’s statistical method was unsound as well.  

The district court threw up its hands.  Declaring 

[i]t is not necessary at this stage of the litigation to declare a

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If you’ll forgive the second piece of self-promotion in a week: the Washington Legal Foundation (which keeps the always-interesting Legal Pulse blog) has just published a Legal Opinion Letter evaluating several of the arguments in favor of overturning the 9th Circuit’s Dukes v. Wal-Mart decision, written by yours truly.  

I’ll be participating in a briefing for the WLF on this issue in a few weeks (specific details when I get them), and another one a few days later for the American Constitution Society.   … Continue Reading

 When the Supreme Court granted certioriari in Dukes v. Wal-Mart Inc., the Vanderbilt Law Review grabbed a number of law professors who study mass torts and asked them to contribute essays to its En Banc feature. One of these–Richard Nagareda’s Common Answers for Class Certification–was one of the most interesting articles published in 2010. Several of the other contributions also posed some interesting questions, among them Alexandra Lahav’s The Curse of Bigness: The Optimal Size of Class Actions

Lahav doesn’t really address the question she asks in the title; she offers no verdict on the … Continue Reading

 Since it’s the end of the year, it’s worth taking a look back at what were the most significant class-action decisions of 2010. What do I mean by significant? A significant case does not have to be well-reasoned, or pro-defense, just one that will have an effect on class-action practice. Some of these are not cases I wrote about, either because I was conflicted out of doing so, or someone else got there first and said what I would have said. Also, the decision itself had to be a significant one, which is why Concepcion v. AT&T (which is important … Continue Reading

In a decision that has already garnered massive press coverage and commentary the Supreme Court yesterday granted certiorari in the case that will be known as Wal-Mart v. Dukes. The 9th Circuit’s opinion affirmed certification of the largest-ever employment class action. (Too large, in Wal-Mart’s opinion.)

The Supreme Court will not review all of the issues involved in the petition for certiorari. It has limited itself to Wal-Mart’s Question 1 (roughly: when can plaintiffs seek Rule 23(b)(2) certification for a class seeking money damages), and has ordered briefing on an additional question:

“Whether the class certification ordered … Continue Reading

Many apologies for providing you all with just a linkdump for my Tuesday entry, but I’m lying in bed with a triple-digit fever.  Still, there are certainly other legal blogs that do a thoughtful job of covering class-action issues, and I’m lucky that several of them have great entries right now.

  • Justice Scalia has stayed a Louisiana state court ruling requiring tobacco companies to pay into a $241 million dollar "quit smoking" fund.  His reason: it’s "significantly possible" that the Court may overturn the decision on constitutional grounds.  Specifically: “the extent to which class treatment may constitutionally reduce the normal requirements
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All too often, courts and class-action litigants take the question of commonality for granted.  But, when framed properly, the question of commonality can provide a court with the tools necessary to engage in a truly rigorous analysis of a proposed class.

In his recent essay "Common Answers for Class Certification," noted professor Richard Nagareda takes the Ninth Circuit’s recent Dukes decision and uses it as a platform to discuss what commonality really means in the context of a class action. In doing so, he provides an excellent analysis of how defense counsel can frame the question of commonality … Continue Reading

While I was on my self-imposed editing hiatus (shameless plug: The Class Action Playbook  comes out in September), the Ninth Circuit handed down its en banc opinion in Dukes v. Wal-Mart. The court worked overtime to tie its opinion to the specific facts and arguments in front of it, which may prevent some generalizing about the opinion. (Not that that has ever stopped legal pundits.)  

First, some background: Dukes is a Title VII sex-discrimination case. The plaintiffs alleged that, as women, they received less money for comparable work, and that they were passed over for promotions within … Continue Reading