Just a brief update on the 9th Circuit’s most controversial class-action case of the year. As expected, the proponents of the settlement that was rejected have appealed the case to the Ninth Circuit en banc.

What is slightly less expected is the alliance of interests that have filed amicus briefs.  As Law360 reports, they include both automotive trade groups and consumer advocacy groups. (Unfortunately, the article does not include links to the amicus briefs.)

The plaintiffs’ advocacy groups have a clear cut argument: they have always asked for a minimal predominance requirement. Consumer groups and pro-manufacturing groups, Continue Reading

Earlier this week, in In re Hyundai & Kia Fuel Efficiency Litig., the Ninth Circuit vacated a nationwide class action settlement, ruling that the lower court had abused its discretion by not considering whether the variations in the consumer-protection laws of the fifty states might predominate over common issues in the case. The ruling (by Judge Ikuta) was controversial from the start, arriving with an impassioned dissent from Judge Nguyen. And it’s that controversy that makes this opinion worth watching.

The facts of the case will sound familiar to experienced litigators. In the wake of an EPA investigation, several … Continue Reading

 Commonality (Rule 23(a)(2)) and predominance (one half of Rule 23(b)(3)) are often considered the heart of the class action certification inquiry. Rightly so, for they both strike at the real question a judge must ask: do the class members have enough in common to justify binding them all together in a single case? Through the 1990s and 2000s, predominance was considered the more important inquiry. In the 2010s, it appears that commonality is gaining ground.

Ten Cases to Bring You Up to Speed:

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This week’s case is the first known follow-up to the Sixth Circuit’s Pilgrim opinion, Rikos v. Proctor & Gamble Co., 2012 U.S. Dist. LEXIS 25104, (S.D. Ohio 2012). In Rikos, the plaintiff sued Proctor & Gamble for allegedly misrepresenting the ability of its product Align to aid in digestion. The plaintiff filed in the Southern District of California, and asserted claims on behalf of a nationwide class.

Proctor & Gamble promptly transferred the case to the Southern District of Ohio. Then it moved to dismiss. (The court granted the motion to dismiss claims for injunctive relief, denied it for … Continue Reading

 Phillips Petroleum v. Shutts involved a lawsuit by a class of gas royalty owners (folks who own the rights to income from gas produced on land) against an oil company. The royalty owners brought their class action in Kansas state court, alleging that Phillips Petroleum had not paid them on time, and so they were owed interest on their royalty payments.

The Kansas state court certified a class of 33,000 royalty owners. The debate over certification bore some similarity to modern debates, but also some startling differences. Phillips basically made two arguments against certifying a class. First, it argued … Continue Reading

Readers of this blog know that I’ve been an early (and ardent) advocate of challenging poorly-conceived class actions as early as possible. And, during the last three to four years, the motion to strike class allegations has (with good reason) become a popular tactic among defense counsel. And, several months ago, we got one of the best examples of how well a good motion to strike can succeed, in Plaisance v. Bayer Corp., 2011 U.S. Dist. LEXIS 47795 (S.D. Ill. 2011).

In Plaisance, the plaintiff sued Bayer Corp., alleging that various people who had used the birth … Continue Reading

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 been a lot of good writeups of class actions lately.  To wit:

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If I may draw on my (necessarily narrow) experience as a class-action litigator, a rising number of class actions are asserting nationwide contract claims, and specifically claims for the breach of the duty of good faith and fair dealing. I could speculate on the reason for that (new class-action theories come into vogue; there has been no judicial opinion thoroughly examining whether a good-faith claim can be certified on a nationwide basis), but I’m really just mentioning it to explain why, as a defense lawyer, I’m glad to see Geoffrey Miller’s  latest article in the Cardozo Law Review: "… Continue Reading

Castano v. American Tobacco Co. (5th Cir. 1996)  involved a class of smokers, their estates, and their survivors arrayed against what was becoming a classic corporate villain: the tobacco companies.

Like in In re Rhone-Poulenc Rorer, the atmospherics favored the plaintiffs. Tobacco companies had already lost credibility in the court of public opinion. And the plaintiffs wisely took advantage of various embarrassing documents by asserting nine fraud-, warranty-, and tort-based causes of action, all based on the tobacco companies’ allegedly inflicting the "injury of nicotine addiction" on a generation of smokers. Faced with a class that probably … Continue Reading