superiority

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Historically, courts have grudgingly accepted the professional plaintiff in class action practice. As Judge Easterbrook of the Seventh Circuit once said, in the context of a FCRA class action, the word professional “implies experience, if not expertise.” One law student note offered one possible strategy for arguing that professional plaintiffs are inadequate class…

One of the perennial questions at class certification (at least under Rule 23(b)(3)) is whether the class is superior to other forms of adjudication. Defendants will often raise individual lawsuits as a viable alternative, but, in cases involving heavily regulated industries, they may also invoke the possibility of allowing a regulatory agency to address the…

At this point, I’m well aware that I tend to sound like an old crank when reviewing class action scholarship; much of it repeats the same old stuff, predicts the imminent demise of the class action in its current form, and looks at the same Supreme Court cases instead of digging into where the real…

 Judge Posner is often considered to be a pro-defense jurist, particularly in the area of class actions. Lately, he’s been proving himself to be more independent-minded than that. First, he allowed certification of a washing machine class, justifying certification despite some outcome-determinative individualized issues because predominance is a matter of "efficiency," and should not be…

 It’s an odd quirk of class action practice that an automotive company defending a products-liability class will be quick to invoke the superiority of its regulator (the National Highway Traffic Safety Administration, or NHTSA), while a securities defendant will rarely–if ever–argue that the case is better handled by the SEC. (The difference may be…

Kathleen Seabron filed a lawsuit challenging the red tape her insurance company required before paying an automobile accident claim as bad faith. After the insurer removed her claim to federal court, she turned it into a bad faith "class action" and added several other plaintiffs. The result was Seabron v. Am. Family Mut. Ins. Co…

Professor Jay Tidmarsh of the University of Notre Dame has a new article on superiority: Superiority as Unity, 107 Nw. U. L. Rev. 565 (2013). The piece is heavily influenced by Martin Redish’s book Wholesale Justice.  In particular, Professor Tidmarsh takes Professor Redish’s critiques of the class action’ flaws seriously, and proposes a…