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.…
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…
A heavy-metals plant in Alloy, West Virginia provided a foundation for the local economy throughout the 20th century. (Hence the name Alloy.) In the 21st century, it provided the basis for an extensive class action lawsuit–Coleman v. Union Carbide Corp., 2013 U.S. Dist. LEXIS 140613 (S.D. W. Va. Sep. 30, 2013)–which alleged that decades of substandard emissions…
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…
Property-rights class actions are difficult to bring, because property tends to be unique, and class actions do not work well with unique claims. But that doesn’t stop plaintiffs from trying to certify classes asserting property based claims.
This week’s case–Onyx Props. LLC v. Bd. Cty. Comm’ners of Elbert Cty., 2013 U.S. Dist. LEXIS…
A common question new students of Rule 23(b)(2) ask is why it exists at all. After all, if an injunction truly offers indivisible relief, why would one seek to bring it on behalf of a class? Wouldn’t the individual pursuing the injunction get relief for the class if she wins just by bringing the lawsuit…
Rule 23(b)(2) is available for class actions that seek injunctive or declaratory relief. It does not allow for opt-outs. Until last year, seeking Rule 23(b)(2) certification had become a strategic alternative for plaintiffs whose claims might not be certified under Rule 23(b)(3). Now, it’s less clear that this alternative is available for "traditional" class actions.…
In the wake of Wal-Mart Stores, Inc. v. Dukes, plaintiffs and trial courts are still trying to determine exactly how to apply the clarified commonality standard of Rule 23(a)(2), and the standard for injunctive relief under Rule 23(b)(2). The good news for defendants, as demonstrated in the new case M.D. v. Perry, 2012…
To get lawsuits into court and past preliminary motions, plaintiffs often have to argue some pretty stupid things. They have to argue that they did not know coffee is hot or that they trusted Google Maps directions over their own eyes. Sometimes, to get a class action that far, plaintiffs’ lawyers have to argue…
Six months after the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, courts are still working out how best to apply the newly-clarified standard of commonality. This week, the Seventh Circuit offered some further guidance.
In Jamie S. v. Milwaukee Public Schools, the plaintiffs–seven disabled public-school students–challenged Milwaukee’s implementation of the Individuals with…
