Provisions to make notice of class certification cheaper and more effective are welcome, but they should also focus on making it more accessible once it arrives.

The Rule 23 Advisory Subcommittee is also looking at revising the provisions for class action notice.  From the report on its October meeting:

 In Eisen, the Supreme Court ruled in 1974 that only first- class mail notice of class certification in 23(b)(3) cases satisfies the rule. It seemed to have due process concerns in mind as well as interpreting Rule 23. It is clear that many regarded this ruling as unfortunate at

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

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

Continue Reading

Rule 23(b)(1) is the forgotten stepchild in Rule 23 jurisprudence. Rule 23(b)(3) gets attention because it’s where the money is. Rule 23(b)(2) is essential to civil rights groups seeking injunctions, and drew attention from plaintiffs’ lawyers seeking an end-run around what they viewed as Rule 23(b)(3)’s more stringent requirements. But case law on Rule 23(b)(1)(A) (which allows class actions to prohibit inconsistent adjudications) and (b)(1)(2) has been notably sparse.

Which is why many lawyers might not have caught one of the strange developments in the wake of the Supreme Court’s ruling in Dukes. As Dean Robert Klonoff–author of, among … Continue Reading

 I hope everyone had a good Memorial Day weekend. This week, we take a brief look at a number of opinions that were decided last week, none of which are revolutionary, but all of which are useful to defendants at some stage of the class action. Think of it like a Memorial Day barbecue, a little something for each course.

Discovery. Both plaintiffs and defendants like to serve contention interrogatories, and both also like to give vague answers. It’s part of the chess game that is pretrial discovery, and it can be frustrating to both observers and participants. In … 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:

Continue Reading

 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, they argue that the court need not look at the merits at all to decide a class is not appropriate.) Both arguments stem back to a single 1974 Supreme Court opinion: Eisen v. Carlisle & Jacquelin

Eisen was a class action filed by odd-lot … Continue Reading