Ah, class decertification in district court…the rarely glimpsed, late-harvest victory that comparatively few class action defense counsel can claim to have tasted. U.S. District Judge Charles Breyer of the Northern District of California recently delivered one such victory for the 2016 vintage, decertifying a plaintiff class he originally certified in 2012 in a wage-and-hour litigation against auto parts retailer AutoZone, Inc.  In the course of reaching that decision, Judge Breyer’s 49-page order also offers further insights into how the Supreme Court’s decisions in Tyson Foods v. Bouaphakeo, Comcast Corp. v. Behrend, and Wal-Mart Stores, Inc. v. Dukes are … Continue Reading

 Gabriel Carrera, along with many others like him, bought Bayer’s One-A-Day WeightSmart diet supplement. Apparently, he didn’t lose the weight he wanted, because he filed a class action alleging that Bayer had fraudulently claimed that the supplement’s use of epigallocetechin gallate (a green tea extract) boosted metabolism and assisted weight loss.

It turns out, however, that Mr. Carrera hadn’t kept any receipts, and, in deposition testimony, confused WeightSmart with various other products that were not part of the litigation. (Relying on class members’ recollections in defining membership is notoriously tricky.) Nonetheless, he argued that either retailer records or … Continue Reading

Defendants walk a thin tightrope over a deep chasm when they have to litigate and settle a class action. On the one hand, litigating a class action vigorously requires the defendant to argue that a class is not certifiable. On the other, to settle a case on a classwide basis, the parties have to convince the court to certify a class.

At the best of times, a defendant may have to explain in one class action why it did not oppose certifying a settlement class in a similar lawsuit. But the danger of this tightrope is even clearer when a … Continue Reading