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. 1:13-cv-957-JMS-MJD, 2014 U.S. Dist. LEXIS 38228 (S.D. Ind. Mar. 24, 2014) offers some object lessons in what ascertainability problems can really mean. In Steimel, the plaintiffs sued the Secretary of the Indiana Family and Social Services Administration after a change in policy (transferring developmentally … Continue Reading

 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

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 controls had caused the release of 17 different toxic substances into the air, resulting in more than 30 different diseases among the local population. The lawsuit sought medical monitoring for Alloy residents and those who had been exposed. (In this case, the plaintiffs sought certification … Continue Reading

 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 guarantee that Judge Alsup’s opinions will be well-reasoned and as fair as he can make them. [Disclosure: I have never practiced in front of Judge Alsup, and have no cases pending in front of him.]

Judge Alsup has issued a new opinion denying … Continue Reading

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 7151 (D. Colo. Jan. 17, 2013).–arises out of one such effort. The specific details are convoluted, but basically amount to the following: two developments in Elbert County, Colorado were, for various reasons, rezoned from an "A-Agriculture" designation to an "A-1" designation. This was apparently important … Continue Reading

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 in the first place?

There is an answer to this question, and it is one that has its roots in the desegregation era.  When blacks seeking desegregation orders sued for injunctions, they did so on behalf of a class to avoid the problem of … Continue Reading

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.

Ten Cases to Educate You:

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 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 U.S. App. LEXIS 6061 (5th Cir. Mar. 23, 2012), the appellate courts are largely following the Supreme Court’s lead in Dukes. (My apologies: Google Scholar doesn’t have the opinion yet, and the Fifth Circuit website appears to be having difficulties.)

The plaintiffs challenged the state’s … Continue Reading

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 that entire populations that dumb, such as when they argue that people did not know that Nutella is fattening. What’s a defense lawyer to do in situations like this?

The Third Circuit has offered some help. The lawsuit, McNair v. Synapse Group, Inc. … Continue Reading

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 Disabilities Education Act.  The trial court denied certification, but allowed the plaintiffs to amend their complaint. It then certified the amended class proposal, and proceeded to a bench trial, where it found various violations of the IDEA, and ordered a complex, court-monitored remedial … Continue Reading