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 Superiority (which requires a court to find "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy") is an often-overlooked area of Rule 23, perhaps because these days, it comes with a nice long, non-exhaustive list of factors to consider, including:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the

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Enron.  The Toyota sudden acceleration MDL.  The Microsoft antitrust class actions.  There are no shortage of class actions that have arisen from government investigations of various kinds.  But while seeing a class action complaint arrive on top of a government subpoena can be stressful, it’s not necessarily the end of the world.  In fact, the defenses of each can harmonize in surprising ways.

On Tuesday, my colleague John Adams and I presented a CLE session on how to defend class actions that arise from government investigations of various kinds.  In it, we explained:

  • best practices for handling government
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Last Thursday, in Morrison v. National Australia Bank (slip op.), the Supreme Court held 8-0 (Sotomayor, J. not participating) that “foreign-cubed” class actions (where the plaintiff, the defendant, and the sale of the security are all located outside the US) did not have sufficient ties to the United States to justify invoking US securities laws. The bulk of Justice Scalia’s majority opinion focused on the question of when one could presume that a law would apply outside the US. (The “presumption of extraterritoriality.”) As a statement of how the US will treat cases that may have international application, this … Continue Reading

Cardozo Law School professor Myriam Gilles has a new article in the latest issue of the DePaul Law Review, "Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions."

Provocative title aside, Gilles’s article is ostensibly about the ascertainability requirement. That said, it seems remarkably unconcerned with cases that actually discuss ascertainability. (For example, it tries to tie acertainability doctrinally to either predominance or the notice requirement, ignoring those cases where courts have developed ascertainability from numerosity. The article also doesn’t concern itself with merits-based classes, even though these classes wind up vexing a number of courts at certificationContinue Reading