Sometimes settlement with a putative class of nationwide consumers is the best option for resolution. However, since the initial ruling of the Ninth Circuit in In re Hyundai & Kia Fuel Econ. Litig., the mechanism to go about doing so has been in flux. On June 6, 2019, the full en banc Ninth Circuit finally answered class action practitioners’ questions and affirmed the district court’s June 2015 final settlement approval order and certification of a nationwide class of consumers. The decision unravels the prior ruling of a divided three-judge panel of the Ninth Circuit, which previously vacated the class … Continue Reading
As the new year begins, this is a good time to recap two of the major Supreme Court decisions from the past year impacting class action law, and to look ahead to a couple big decisions on the horizon.
Arbitration and Class Actions
First, in Epic Systems Corporation v. Lewis, the Court confirmed that class action waivers in arbitration agreements are enforceable in employment contracts, even where the employee is covered by the National Labor Relations Act (NLRA). Within a year after the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, which held that the … Continue Reading
A number of changes to Fed. R. Civ. P. 23 took effect on December 1, 2018. They’ve been in the works for some time, so no surprises, but now is a good time to summarize them. The changes deal primarily with class settlements and objections:
Rule 23(c)(2)(B), which deals with class notice, has been expanded to encompass proposed settlement classes. Giving notice of proposed settlement classes is now discretionary under Rule 23(e) as discussed below.
Rule 23(c)(2)(B) also added a sentence specifying that the class notice may be made by U.S. Mail, electronic means, or other appropriate means. … Continue Reading
Despite my best intentions, I have not been posting here as often as I would like in the past few months. But that does not mean that I have not been reading. So, in lieu of a long-winded analysis of some new tactic, trend, or article, please accept the following capsule reviews of three of the more interesting and practical class action articles from the last few months:
I don’t usually do guest posts–Class Action Countermeasures is largely a solo proprietorship–but Adam Schulman of the Center for Class Action Fairness spotted a new settlement tactic out in the wild that proved interesting enough to justify an exception. [Inevitable disclosure, since I have done some work for the Center, I have worked with Adam before.] So, without further ado, Adam:
The Opt-Out Refund
As an attorney with the Center for Class Action Fairness, I spend a good deal of time evaluating prospective class action settlements for defciencies. (Disclaimer: I write this blog post only in my individual capacity, … Continue Reading
With one or two significant exceptions, I usually write about settlement tactics that don’t work. I do that for two reasons: (1) settlement tactics that work often lead to perfunctory opinions that do not discuss the tactics themselves, and (2) settlement is one of those areas where it’s better to know what to avoid.
This week, however, I’d like to focus in on a tactic that worked for the parties.
The Trans Union Corp Privacy Litigation–which involves allegations that the company violated the Fair Credit Reporting Act ("FCRA")–has been around in one form or another for 16 years, … Continue Reading
A brief one this week, involving a settlement that did not reach final approval. Dremak v. Iovate Health Sci. Group, Inc., No. 09md2087, 2013 U.S. Dist. LEXIS 165225 (S.D. Cal. Nov. 19, 2013) involved an attempted settlement of personal injury class and labeling class actions involving products with hydroxycut [http://en.wikipedia.org/wiki/Hydroxycut]. The proposed settlement involved $10 million in cash and $10 million in hydroxycut products. Any remaining cash after distribution would be distributed as "Additional Product."
The court was not impressed by the structure of the settlement. As it stated:
… Continue Reading
The biggest problem with the proposed cy pres distribution in
ExxonMobil recently attempted to settle a class action involving the payment of gas royalties. As part of that settlement, it agreed to a provision that would impose a severe appeal bond on any objectors who might wish to appeal an unsuccessful objection. The clause read:
… Continue Reading
Because any appeal by an objecting Class Member would delay the payment under the Settlement, each Class Member that appeals agrees to put up a cash bond to be set by the district court sufficient to reimburse Class Counsel’s appellate fees, Class Counsel’s expenses, and the lost interest to the Class caused by the delay
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