The last few weeks have been exceptionally busy for appellate decisions involving class actions. In addition to Judge Easterbrook’s In re Aqua Dots opinion, the Sixth Circuit’s Pipefitters opinion, the Second Circuit’s Literary Works opinion, and the Ninth Circuit’s reversal of the Bluetooth settlement, the Third Circuit has offered up a pair of opinions
Rule 23(b)(2)
The Dukes Opinion – Commonality and Monetary Relief
Today, the Supreme Court issued its much-anticipated opinion in Wal-Mart v. Dukes.
For those who like to skip ahead to the end to figure out whether their side won, the Court ruled in favor of Wal-Mart. That said, the real winner was the late Professor Richard Nagareda, whose articles on commonality clearly influenced Justice…
The Importance of Transparency in Class Settlements
Most professional objectors are fee-seekers (or, as one court called them, "remoras"). But not all; some, like the Public Citizen Litigation Group and the Center for Class Action Fairness, are non-profits that seek to keep class settlements for the benefit of class members instead of class counsel.
Alan B. Morrison, one…
Judge Posner Provides Preview of Wal-Mart v. Dukes Ruling?
Last week, while the legal world was abuzz over the Supreme Court argument on Wal-Mart v. Dukes, Judge Posner was quietly putting the finishing touches on Randall v. Rolls Royce, which provides his own take on some of the same issues.
As in Dukes, the plaintiffs sought to represent a class of…
Wal-Mart v Dukes – Postgame
Yesterday was the long-anticipated oral argument in Wal-Mart v. Dukes. I’ve attached a copy here. Overall, the Justices were clearly prepared for the argument, although they–like almost everyone else–had trouble keeping all of the facts straight. A few highlights:
- Justices Ginsburg, Kagan, and Sotomayor took an early lead in questioning Ted Boutrous (who argued
…
A Little More on Wal-Mart v. Dukes
If you’ll forgive the second piece of self-promotion in a week: the Washington Legal Foundation (which keeps the always-interesting Legal Pulse blog) has just published a Legal Opinion Letter evaluating several of the arguments in favor of overturning the 9th Circuit’s Dukes v. Wal-Mart decision, written by yours truly.
I’ll be participating in a…
Class Action Collation II
See, here’s the thing. Russell Jackson stole my case. The Seventh Circuit decided an important case on the limits of Rule 23(b)(2)–Kartman v. State Farm Mutual Auto Ins.–and I set it aside to blog about today. But Jackson’s great writeup covers everything I wanted to.
And here’s the other thing. There have…
Never Assume Commonality – Gaston v. Exelon Corp.
Commonality is rarely the subject of much discussion in class certification. The plaintiff often treats it as a perfunctory hurdle, subsumed into the more difficult questions of predominance (under Rule 23(b)(3)) or cohesiveness (under Rule 23(b)(2)). But, much like numerosity, commonality is a requirement that may reward careful scrutiny when a defendant opposes class certification.…
Too Big to Certify?: Human Rights Class Actions Under ATCA
One of the strongest justifications for class actions is that they address large social wrongs that would otherwise go unremedied. But can there be a wrong that is simply too large for a class action to handle it properly? Something truly huge, like apartheid or genocide.
Some plaintiffs’ lawyers, like Hausfeld LLP, say no. …
The Effects of the New Dukes Decision
While I was on my self-imposed editing hiatus (shameless plug: The Class Action Playbook comes out in September), the Ninth Circuit handed down its en banc opinion in Dukes v. Wal-Mart. The court worked overtime to tie its opinion to the specific facts and arguments in front of it, which may prevent some…