The Advisory Committee has signaled that the merits inquiry is a “back burner” issue for the next Rule 23 amendments. Perhaps they should nudge it towards the front.
The role of the merits inquiry at certification is of vital interest to litigators, but less so to policymakers. The Rules 23 Subcommittee, in the report from…
The answer is nowhere near as simple as you might think. Everyone knows that a court is supposed to conduct a “rigorous analysis,” but what that means in practice is not quite as clear.
For example, last year, the Supreme Court (in dicta) made a statement about Rule 23 that many, including myself,…
For some time, academics have been decrying the demise of the class action, arguing that the Supreme Court’s precedent makes it harder than ever to certify a class under Rule 23. And yet, as one practitioner I know observed, plaintiffs keep filing the things. And quite a few courts keep certifying them.
Now, however, at…
The Supreme Court has handed down its first class-action related opinion of the 2012-13 Term, Amgen Inc. v. Connecticut Retirement Plans & Trust Funds. And while that opinion represents a loss for the defendants in the specific case, it’s not as big a problem for securities defendants in general.
Amgen involved an alleged securities…
On Monday, the Supreme Court heard arguments in two different class actions, united by a common problem.
The first, Comcast Corp. v. Behrend, asked whether a trial court should hold plaintiffs to the Daubert standard for expert testimony at class certification, a question that has divided federal circuits for several years. Due in…
Last week, Senator Al Franken (D-Minn) proposed a bill that would partially reverse the Supreme Court’s opinion in Wal-Mart Stores, Inc. v. Dukes.
According to Senator Franken’s press release, the Equal Opportunity Employment Restoration Act (good title) would add a section 4201 to 28 U.S.C.:
Section 4201(a) creates a new judicial
…
Robert Klonoff, Dean of the Lewis & Clark Law School, has produced a new article, The Decline of Class Actions (forthcoming from the Washington University Law Review), that provides a much-appreciated overview of recent developments in class action law from a plaintiff’s perspective. (Disclosure: Dean Klonoff provided a very nice blurb for…
Class definitions can be extremely difficult for plaintiffs. In addition to holding that merits-based class definitions cannot support certification, courts have begun to hold that some definitions are simply too broad. Overbroad definitions usually are symptomatic of other problems with the proposed class.
Want an example? Take the case of Kemblesville HHMO Center LLC…
In the 1990s, a group of attorneys sued a number of securities broker-dealers nationwide. They alleged that the broker-dealers had executed a number of securities orders at the "National Best Bid and Offer" (NBBO) price–which would provide a customer with the lowest available ask or the highest available bid for a security–an industry-wide…
This week, we’re going to address one of the longest-standing debates in class-action litigation: How much may a court delve into the merits of a class action when deciding certification?
Plaintiffs often argue "not at all." Defendants often argue "as much as necessary." (Though not always; when defendants file motions to strike class allegations…
