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 reduced to "bean-counting."

And last week, he authored an opinion that reversed decertification of an Electronic Funds Transfer Act (EFTA) class action.

In Hughes v. Kore of Indiana Ent., Inc., No. 13-8018, 2013 U.S. App. LEXIS 18873 (7th Cir. Sep. 10, 2013)Continue Reading

This week’s case, Hughes v. Kore of Indiana Ent., Inc., No. 1:11-cv-1329-JMS-MJD, 2013 U.S. Dist. LEXIS 95849 (S.D. Ind. Jul. 10, 2013), involved a certified class alleging violations of the Electronic Funds Transfer Act. (EFTA–which requires banks to post fee notices physically on their ATMS–is one of those statutes that, at least on its surface, lends itself to certification, because it requires only a technical violation, not a finding of actual damages.)

But a funny thing happened on the way to the class trial.

A few weeks before trial, the Court recognized sua sponte that Mr. Hughes

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Paul Karlsgodt (of the longstanding and outstanding Class Action Blawg) has published an article with the University of Denver Law Review’s Online Edition: Statutory Penalties and Class Actions: Social Justice or Legalized Extortion? Statutory Penalties is an excellent introduction to the problem of defending class actions based on statutory violations, and Karlsgodt’s focus on privacy litigation is a welcome one.

Among the most useful parts of his article, Karlsgodt provides a handy summary of the "annihilation argument" and how it’s currently received by the courts.

One argument raised in early class actions involving potentially annihilating statutory damages liability

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