In the wake of Comcast Corp. v. Behrend, a number of different courts have weighed in on the question of whether variations in damages should preclude certification of a litigation class. Last month, however, the District of the District of Columbia issued an opinion which implied that variations in damages might preclude the certification of a settlement class.

The case is Richardson v. L’Oreal USA, Inc., 2013 U.S. Dist. LEXIS 158599 (D.D.C. Nov. 6, 2013).  And it’s another Center for Class Action Fairness case. (You can read Ted Frank’s original writeup of the case here, and let … Continue Reading

 In the past few years, Professor Mark Moller of DePaul University Law School has proven to be one of the most thoughtful critics of modern class action law in the legal academy. While most commentators take on class action decisions from either a pro-plaintiff or pro-defendant standpoint, Professor Moller appears intent on evaluating these opinions according to the criteria set out by the arguments they advance. From that standpoint, he pointed out that class action defendants’ "originalist" arguments about due process were influenced heavily by a no-longer-favored line of Supreme Court cases. And now, as he argues in his … Continue Reading

 After watching an infomercial, Harry Wiedenbeck bought a "comprehensive" medical health insurance plan for himself and his wife. When the insurer subsequently denied a claim based on his wife’s hospitalization, Mr. Wiedenbeck filed a class action alleging fraud and bad faith on behalf of all Wisconsin residents who had bought the plan.

The subsequent case, described in Wiedenbeck v. Cinergy Health, Inc., No. 12-cv-508-wmc, 2013 U.S. Dist. LEXIS 134672 (W.D. Wis. Sep. 20, 2013), contained a number of procedural machinations, including the use of an offer of judgment. But I’d like to focus on the class certification debate, because … Continue Reading

Kathleen Seabron filed a lawsuit challenging the red tape her insurance company required before paying an automobile accident claim as bad faith. After the insurer removed her claim to federal court, she turned it into a bad faith "class action" and added several other plaintiffs. The result was Seabron v. Am. Family Mut. Ins. Co., No. 11-cv0196-WJM-KMT, 2013 U.S. Dist. LEXIS 99166 (D. Colo. Jul. 16, 2013).

After hotly-contested discovery, the plaintiffs moved to certify a class. The court expressed "significant reservations" about whether the plaintiffs had met the Rule 23(a) requirements, but assumed that they had so it … Continue Reading

 In late 2007 and early 2008, the Hannaford Brothers Grocery stores suffered a security breach: thieves stole the debit and credit card data of thousands of customers. As one might imagine, a number of lawsuits followed, including a number that were consolidated into litigation in the District of Maine. After extensive pretrial litigation in various courts, the trial court was faced with the question of whether to certify a class action that sought damages for card replacement fees and purchases of data protection products.

In the resulting opinion, In re Hannaford Bros. Customer Data Security 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

 Brenda Kennedy was hospitalized in 2009 for four days. She had an insurance policy from United American that paid benefits for each day that she spent in the hospital, and she assigned those benefits to the hospital. When she received her hospital bill, she discovered that it had only covered three days, not four. So she bought a class action on behalf of everyone who received benefits from the policy.

United American moved to dismiss the case because Ms. Kennedy had not received benefits herself; she had assigned them to the hospital. The court agreed with the argument, but stayed … Continue Reading

 It’s a busy week for me, so here’s just a brief rundown of two opinions vacated and remanded from the US Supreme Court:

RBS Citizens NA v. Ross (7th Cir. 2012). (More here.)  The Seventh Circuit affirmed certification of a wage-and-hour case, despite what it conceded was a less-than-optimal order certifying the class. RBS appealed to the Supreme Court to ascertain how the certification fit in with the Dukes commonality standard. The Supreme Court vacated and remanded the case in light of its opinion in Comcast Corp. v. Behrend.

Whirlpool Inc. v. Glazer (6th Cir. 2012). The Sixth … Continue Reading

Yesterday, the Supreme Court issued its opinion in Comcast Corp. v. Behrend, the antitrust case which commentators (including me) had expected would finally resolve the question of whether a trial court must apply the Daubert evidentiary standard to expert testimony in a certification debate.  It turns out we were wrong. Due to a procedural defect below (Comcast had not objected to the admissibility of the expert’s testimony in the trial court), the Court ultimately did not decide the Daubert issue. But it did issue an opinion that, while limited, provides some help to defendants at certification.

BehrendContinue Reading

Chesapeake Energy Corporation produces natural gas. As gas royalty class actions have become more popular in the last decade, it has also been a defendant in a number of cases alleging that it underpaid mineral royalties to various landowners. One of these cases recently resulted in a denial of class certification that is worth some attention.

In Williams v. Chesapeake Lousiana, Inc., No. 10-1906, 2013 U.S. Dist. LEXIS 34778 (W.D. La. Mar. 11, 2013), which alleged that Chesapeake had violated the Louisiana Mineral Code by underpaying class members for gas royalties, the plaintiff moved for class certification at the … Continue Reading