Rule 68 offers of judgment have been controversial in class action practice for quite some time. Proponents of the tactic believe that it offers a valuable means of limiting frivolous lawsuits: where there are really only a few affected claimants, an offer of judgment can force them to face up to the costs of meritless class allegations. Opponents believe that corporate defendants would rather buy off potential claimants one by one than face a class-action lawsuit. Circuit courts of appeal had split on whether the tactic could actually moot a class action.

Genesis Healthcare Corp. v. Symczyk, in … Continue Reading

Today’s case, Espenscheid v. DirectSat USA, LLC (7th Cir. 2012) is a little tricky, procedurally. Three plaintiffs filed an FLSA class action (and collective action) against DirectSat USA, LLC. The Northern District of Illinois originally certified a class, but then decertified it, at which point the plaintiffs each settled on an individual basis.

Now, here’s the tricky part. Having settled the case, they appealed the decertification.

But wait, you ask. How could they do that? They settled their claims!

The plaintiffs’ response: the settlement agreement reserved their right to appeal. Of course, they would still face a standing problem. Since Continue Reading

Today’s case is a perfect illustration of the difference between tactics and strategy, or, more accurately, between litigation strategy and litigation grand strategy. As you may remember, a tactic is a plan to accomplish a specific short-term goal within a larger conflict. (A defendant may have the strategy of defeating certification to minimize litigation risk; one tactic will be to file a motion to strike class allegations.) A strategy (win this case by defeating certification) should also fit into a grand strategy (keep the defendant safe from meritless lawsuits by making sure courts enforce Rule 23 properly) that … Continue Reading

See, here’s the thing. Russell Jackson stole my case. The Seventh Circuit decided an important case on the limits of Rule 23(b)(2)–Kartman v. State Farm Mutual Auto Ins.–and I set it aside to blog about today. But Jackson’s great writeup covers everything I wanted to.  

And here’s the other thing. There have been a lot of good writeups of class actions lately.  To wit:

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 Depositions are one of the most important parts of class discovery. (And for many lawyers, they’re also the most fun.) Since so few class actions go to trial, a deposition of a named plaintiff is when the defense lawyer finally gets to act like a lawyer on TV, confronting the named plaintiff with evidence, poking holes in poorly-constructed stories or arguments. But how much of the named plaintiff deposition is mere theatrics and how much is useful for actually defeating certification? For an excellent example of well-deployed depositions, let’s look at a recent FLSA case: Lugo v. Farmer’s Pride, Continue Reading

 In the world of class actions, case brought under the Federal Labor Standards Act (FLSA) stand apart from other class actions. Unlike a standard Rule 23 class action, the plaintiff in an FLSA action has the option of filing a class action under Rule 23, a collective action under the FLSA, or both.

What is a collective action? Like a class action, a plaintiff in a collective action trades individual control over her lawsuit for the economies of scale and the bargaining leverage that come with group litigation. But FLSA collective actions follow different procedural rules than Rule Continue Reading

Class actions don’t necessarily look like emotional contests from afar, but they can be. Plaintiffs’ counsel is risking work and capital with no certain return on their investment. The defendant has been placed in high-stakes litigation based on what appear (to it) to be baseless allegations. As a result, it can be hard for each side not to take things personally. But how hard should a defendant hit back against unscrupulous plaintiffs’ counsel? Especially if – from the defendant’s standpoint – they all look unscrupulous?

I can’t think of another question that begs so much for the answer "it depends." But there is … Continue Reading