Judge Richard Posner has always been an independent thinker, something he has proven in the last year as, despite his economically conservative credentials (which would lead one to presume a possible defense bias), he authored a number of arguably pro-plaintiff class certification opinions, particularly his twin opinions in the controversial case Butler v. Sears Roebuck & Co. (2012) (2013) And so it is noteworthy that, despite his ruling in Sears, he has also authored the opinion in Parko v. Shell Oil Co., No. 13-8023, 2014 U.S. App. LEXIS 1018 (7th Cir. Jan. 17, 2014).… Continue Reading

 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

Earlier this week, the Supreme Court quietly granted certiorari in Sears, Roebuck & Co. v. Butler:

Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Comcast Corp. v. Behrend, 569 U. S. ___ (2013).

The case below, Butler v. Sears, Roebuck & Co., had been notable because it was a Judge Posner-written opinion that affirmed a certification (and reversed a denial) of a pair of class actions alleging that certain models of washing machines were defective. The Seventh Circuit had "accepted the appeals in order to clarify the concept of "predominance" in class … Continue Reading

Two years ago, I wrote about the difficulties defendants face when securities plaintiffs invoke confidential witnesses in their complaints. The case that prompted that discussion, City of Livonia Employee Retirement System v. Boeing Corp., now has a sequel. As it turns out, both parties appealed the opinion below: the plaintiffs because the court below had dismissed their case with prejudice, and the defendants because the court had not imposed sanctions consistent with the PSLRA.

Judge Posner wrote the opinion for the three-judge panel. He began with a brief (and very informative) summary of the relevant provisions of the PSLRA. In … Continue Reading

 Dreaded deadline doom on a few projects (and some actual paying work) means that, unfortunately, today’s post will have to be light on original content.  

Fortunately, Judge Posner has an excellent review of Justice Scalia’s new book up at The New Republic, so I can just direct you there.  It’s classic Posner, and includes one of the most lucid critiques I’ve read on originalism:

The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography

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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

 Last week, there were two appellate opinions, one from the Seventh Circuit and one from the Tenth, that are worth some attention. They’re worth discussing together as well, because while only one is really helpful for defendants, both discuss different conceptions of how to argue comity in class actions.

The first is Smentek v. Dart (7th Cir. 2012). Smentek was a class action filed on behalf of Illinois prisoners who had been denied dental care in violation of the due process clause. It was the third of its kind. How did that happen? In the first two class actions, various … Continue Reading

A few years ago, I attended an oral argument with a colleague. (He was there to argue a substantive motion in our case, I was there to take on the class-related issues.) It turned out we were in front of a hot bench that day: the judge clearly had formed several opinions of the case, and was not shy about peppering both plaintiff and defense counsel with questions–some seemingly out of left field–that forced each to justify his case. His approach clearly shook both sides a little. As we left without a decision on our motions, my colleague shook his … Continue Reading

 Culver v. City of Milwaukee dealt with allegations of race discrimination–specifically, a white man who claimed he had been denied a job application at the Milwaukee police department because it was not accepting white males the year he applied. The trial court certified his proposed class (which consisted both of white men who had allegedly been denied applications and white men who might have been passed over because of changes in exam scoring to favor minorities). A year later, Culver got a different job, with which he was content, thus mooting his claim. Five years after that, a different … Continue Reading

 Brian Fitzpatrick’s argument that courts should approve more fees for class action plaintiffs’ lawyers has generated its share of discussion. And a few months ago, the Seventh Circuit weighed in (sort of), during an argument about fees for objectors in In re Trans Union Corp. Privacy Litigation.

Judge Posner (who has decided a number of class action appeals this year) wrote the opinion, and observed:

It is a curiosity of class action litigation that often there is greater ferocity in combat among the class lawyers over the allocation of attorneys’ fees than there is between the class lawyers

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