Challenges to ascertainability have become noticeably more popular over the last few years. As a result, defendants will sometimes challenge the class definition even though there are deeper problems with the class. As a recent case shows, however, it is usually worth probing deeper than the definition in one’s arguments.
Steimel v. Minott, No.…
This week, we get our yearly reminder not to take the humble numerosity requirement for granted. In Spread Enterprises, Inc. v. First Data Merchant Services Corp., No. 11-CV-4743, 2014 U.S. Dist. LEXIS 22972 (E.D.N.Y. Feb. 22, 2014), the named plaintiff–a prepaid phone minutes company–sued a bank and a credit card payment processor for charging…
At this point in my practice, there are certain judges whose opinions I just automatically look for: the Chicago triumvirate of Posner, Easterbrook, and Wood; the often-covered Judge Rakoff in the S.D.N.Y.; and Judge William Alsup of the Northern District of California. Regardless of the result–and there have been a few I’ve privately bemoaned–you can…
Northside Chiropractic doctor Michael Dubick made the mistake of–after a cold call from salesmen–buying advertising space in Yellowbook. He negotiated for a certain kind of advertisement, but the published ad looked nothing like what he had asked for, and lacked even basic information about his business (like his name). So he sued, and added class…
Andrew Marshall was an employee of the City of Spokane, Washington. After a minor work-related injury to his eye, he wound up in a billing dispute with the company that ran the emergency room he visited. So he did what many of us have felt the urge to do after diving into a morass…
It’s summertime, when kids attend camp. We tell ourselves this is play, but a lot of camps focus intensively on building up certain skills. This summer, Class Action Countermeasures will be doing the same thing, presenting a number of posts that introduce you to the very basics of class-action practice. (For those who read my…
Today’s case is interesting in no small part because it shows just how far class-action arguments have come in the last 18 months. In the latter half of 2010, most defendants faced with a class action would look primarily at adequacy (are the named plaintiffs good representatives?), typicality (do the named plaintiffs have the same…
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…
There’s an intuition among defense lawyers that property-based cases are difficult to certify; not impossible, but certainly difficult. This week’s case, Burdette v. Vigindustries, Inc., 2012 U.S. Dist. LEXIS 15412 (D. Kan. Feb. 8, 2012), offers several reasons why that is the case.
Burdette is a case about sinkholes. It involves a neighborhood…
Like many health-minded individuals, Norma Rothman has shopped at GNC stores. And, like many others, she has bought items there with her credit card. And, like many consumers everywhere, she didn’t like it when the cashier allegedly asked her for her ZIP code when she made her purchase. Unlike many consumers, Ms. Rothman tried to…
