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.

Looking Back

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)

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:

(1)  Alex Atticus Parkinson, Class Actions as Firms. Class action scholars have scratched their heads over how to characterize a Rule 23 class action suit for years.  Is it just specialized

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Last week, the Rule 23 Subcommittee of the Federal Rules Advisory Committee published its draft concept amendments to Rule 23.  You can find them here.   (They’re in the April 2015 Agenda Book.)  What follows is my personal reaction to the proposed concept amendments.  They will be subject to public comment, and, I imagine, vigorous further debate.
Here’s the good news.  The Subcommittee has made two completely unobjectionable proposals.  First, it would modify Rule 23(e) to require a statement of any side agreements before an objector withdraws an objection.  Greater transparency is always good.  Second, it would allow for emailed … Continue Reading

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:

The biggest problem with the proposed cy pres distribution in

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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:

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

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 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

 Settlement opinions are often not that interesting. The vast majority of them are by-the-numbers approvals of proposed settlements that offer little insight about how Rule 23 works. This is especially true of preliminary approval opinions. But every once in a while, a court refuses even the preliminary approval of a settlement.  When that happens, class action lawyers can usually learn a few things about how not to settle a case.

Better v. YRC Worldwide Inc., No. 11-2072-KHV, 2013 U.S. Dist. LEXIS 163569 (D. Kan. Nov. 18, 2013), is such a case. It was a proposed settlement of a … Continue Reading