Tag Archives: class certification

Class Action Year In Review 2021

Photo of Bethany LukitschPhoto of Julie Singer BradyPhoto of Paul KarlsgodtBy Bethany Lukitsch, Julie Singer Brady and Paul Karlsgodt on Posted in Year-end Review of Class Actions
BakerHostetler has released its Class Action Year In Review, which presents a brief overview of the landscape for class actions in 2021 and a preview of what to expect for 2022. The report covers class action litigation in several areas: Financial services Advertising and marketing: food, beverage and product labeling Privacy Insurance Employment Appellate decisions … Continue Reading

Trial Courts Wrestle with Expert Testimony and Daubert at Class Certification

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Class Certification
Expert testimony plays a critical role in nearly all putative class actions, including at the class certification stage where parties rely on expert evidence to address the requirements of Federal Rule of Civil Procedure 23. The Supreme Court has repeatedly held that trial courts must look beyond the pleadings and conduct a searching inquiry to … Continue Reading

Carter v. The Dial Corporation: The First Circuit Washes Its Hands of Clarifying Ascertainability in Class Actions

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Class Certification
We previously wrote about the split among the circuit courts of appeal over the ascertainability requirement for class certification and whether self-identifying consumer affidavits—e.g., an affidavit in which a consumer attests that he or she is a class member and suffered injury—can satisfy that requirement. Recently, the First Circuit denied, over a strong dissent, a … Continue Reading

Game Over: Supreme Court Unanimously Rejects Xbox Plaintiffs’ Attempt to Create Appellate Review

Photo of Andrew SerraoBy Andrew Serrao on Posted in Class Certification
In April, we reported on the oral argument in Microsoft Corp. v. Baker, a Supreme Court case addressing whether putative class members may obtain appellate review of orders denying class certification by voluntarily dismissing their individual claims with prejudice. Recently, the Supreme Court gave its unanimous answer: no. See Microsoft Corp. v. Baker, 137 S. … Continue Reading

Fifth Circuit Questions the Use of Claim-splitting Tactic by Plaintiff; Orders District Court to Consider Whether Plaintiff’s Proposal Destroys Adequacy

Photo of Trischa Snyder ChapmanBy Trischa Snyder Chapman on Posted in Class Certification
On May 9, the Fifth Circuit Court of Appeals issued a decision in Slade v. Progressive Sec. Ins. Co, Case No. 15-300010, 2017 WL 1843737 (5th Cir. May 9, 2017), in which the court discussed how the practice of claim splitting can create an adequacy bar to class certification. The appeal was taken from a … Continue Reading

Will the Supreme Court Address the Growing Uncertainty in Class Certification Injury Standards?

Photo of Danyll FoixBy Danyll Foix on Posted in Class Certification
Recent years have seen some upheaval in the lower courts on whether classes may be certified when they include members who lack actual injury. So far, however, the Supreme Court has declined to address this issue, thus increasing uncertainty and risks for litigants. Class action cases are often brought pursuant to Rule 23(b)(3), which requires … Continue Reading

Game On: Supreme Court to Decide Whether Xbox Plaintiffs Can Create Appellate Review

Photo of Andrew SerraoBy Andrew Serrao on Posted in Class Certification
Recently, the United States Supreme Court heard argument in Microsoft Corp. v. Baker,[1] a case that may significantly impact class-action defense and appellate jurisdiction. Plaintiff classes frequently want to immediately appeal orders denying class certification. But because these orders are interlocutory and not “final” under the relevant statute,[2] plaintiff classes cannot appeal until their individual … Continue Reading

“Administrative Feasibility” Rejected in the Ninth Circuit

Photo of Rand L. McClellanBy Rand L. McClellan on Posted in Class Certification
On Jan. 3, in Briseno v. Conagra Foods, Inc., Case No. 15-55727, the Ninth Circuit Court of Appeals held that Fed. R. Civ. P. 23 does not require class representatives to demonstrate that there is an “administratively feasible” means of identifying absent class members in order to certify a class. In rejecting the “administrative feasibility” … Continue Reading

Eighth Circuit Becomes First Appellate Court to Apply Halliburton II Price Impact Analysis

Photo of Douglas L. ShivelyBy Douglas L. Shively on Posted in Class Certification
The Eighth Circuit has become the first federal circuit court to apply the Supreme Court’s Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (2014) (Halliburton II) decision. Relying on Halliburton II, the Eighth Circuit reversed the district court’s certification of a class of Best Buy shareholders in a Rule 10b-5 case. … Continue Reading

Notice to Unnamed Members of Putative Class After Plaintiff Accepts a Precertification Tender Under New York CPLR § 908

By Erin Bolan Hines on Posted in Class Certification
Under Federal Rule of Civil Procedure 23(e)(1), claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised with the court’s approval. While many states look to the Federal Rules for guidance, there can be notable distinctions between Federal Rule 23 and its state counterparts. One such example is Vasquez v. … Continue Reading

Judge Scheindlin Approves Class Certification in Barclays High-Frequency Trading Securities Fraud Action

Photo of Matthew FeilBy Matthew Feil on Posted in Class Certification
U.S. District Judge Shira Scheindlin of the Southern District of New York recently certified a class in Strougo v. Barclays PLC, 14 Civ. 5797 (SAS), (S.D.N.Y. Feb. 2, 2016), a high-profile securities class action based on the “price maintenance” theory. The plaintiffs alleged that Barclays made false or misleading statements by overstating the transparency and … Continue Reading

Barclays Bids to Halt High-Frequency Trading Class Action in Its Tracks

By David M. McMillan on Posted in Class Certification
A high-profile class action against Barclays over so-called high-frequency trading is heading into a key phase this month, with the court set to decide plaintiffs’ motion for class certification—a pivotal moment in the case’s trajectory. Strougo v. Barclays Plc, 14-cv-05797 (S.D.N.Y.) began in July 2014, when a Barclays purchaser of Barclays American Depositary Shares (“ADSs”) filed … Continue Reading

Banks Win Class Certification in Target Data Breach Case

Photo of Ruth E. HartmanBy Ruth E. Hartman on Posted in Class Certification, Data Breach
A federal court recently granted class certification to a group of financial institutions (the “Banks”) in the data breach case against Target Corporation (“Target”) arising from the December 2013 hacking of its computer system, which exposed the financial information of millions of customers. In re: Target Corp. Customer Data Security Breach Litigation, MDL Case No. … Continue Reading

Plaintiffs Fold on Their Full Tilt Poker Actions Following Court’s Rejection of Class Certification and Proposed Settlement

Photo of Elizabeth SchutteBy Elizabeth Schutte on Posted in Class Certification, RICO
Weeks after having their motion for class certification denied and a proposed global settlement rejected, the plaintiffs in three actions against entities and individuals involved in the Full Tilt Poker Internet gambling operation have dismissed their claims without prejudice. This case illustrates the importance of due process considerations in representative actions. Full Tilt, PokerStars, and … Continue Reading

Judge Easterbrook Holds Unaccepted Offer of Judgment Does Not Moot an Individual TCPA Claim

Photo of Patrick T. LewisBy Patrick T. Lewis on Posted in Class Certification, TCPA
As we covered here, the U.S. Supreme Court accepted certiorari in Campbell-Eward Co. v. Gomez, 768 F.3d 871 (9th Cir. 2014), to decide the question of whether a full-relief offer of judgment under Federal Rule of Civil Procedure 68, made prior to the plaintiff’s moving for class certification, would moot a TCPA class action. The … Continue Reading

District Court Follows Supreme Court’s Lead in Halliburton, Allows Class Action to Proceed with Narrowed Factual Scope

Photo of Jessie M. GabrielBy Deborah Renner, Jessie M. Gabriel and David M. McMillan on Posted in Class Certification, Securities
Applying the Supreme Court’s landmark decision in Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (2014) (“Halliburton II”), which allowed companies facing securities fraud class actions to defeat certification by presenting evidence that their alleged false statements did not impact the company’s stock price, the district court on remand held that … Continue Reading

Class Certification of California Price Advertisement Case Gives Cause for Concern

Photo of Rodger EckelberryPhoto of Jacqueline MatthewsPhoto of Rand L. McClellanBy Rodger Eckelberry, Jacqueline Matthews and Rand L. McClellan on Posted in Class Certification
Spann v. JCPenney and People of California v. Overstock.com By Rodger L. Eckelberry, Rand L. McClellan, and Jacqueline K. Matthews June 30, 2015 A recent class certification decision in California involving challenges to a retailer’s price comparison advertisements should prompt retailers to carefully evaluate their sale advertising practices. Whether comparing to “regular” or previous prices, or to the sale … Continue Reading

Third Circuit Clarifies Standard for Ascertainability

Photo of Jacqueline MatthewsBy Jacqueline Matthews on Posted in Class Certification
In a recent ruling vacating denial of class certification, the Third Circuit provided guidance on the scope of the implied “ascertainability” requirement under Rule 23. Byrd v. Aaron’s, Inc., 2015 U.S. App. LEXIS 6190 (3d Cir. April 16, 2015) involved a putative class action against Aaron’s, which leases, among other things, laptop computers to consumers. … Continue Reading

BakerHostetler Antitrust Lawyer Examines Recent Development in Antitrust Class Action Litigation

Photo of Danyll FoixBy Danyll Foix on Posted in Antitrust
The Antitrust Review of the Americas 2015 features a chapter by BakerHostetler antitrust partner Edmund W. Searby entitled, “United States: Private Antitrust Litigation – Class Actions.”  He wrote: “As many appreciate, two Supreme Court decisions in the last seven years have assisted the defense of antitrust class actions.  The first and most significant is the enhancement … Continue Reading

Court Takes Cue from Comcast v. Behrend, Certifies Class as to Liability but not Damages

By David M. McMillan on Posted in Class Certification, Securities
Fort Worth Employees’ Retirement Fund v. J.P. Morgan Chase & Co. In what appears to be an increasingly common practice since the Supreme Court decided Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), the Southern District of New York recently certified a class as to liability, but rejected certification as to damages.  Fort Worth Employees’ … Continue Reading

In “Zombie” Class Action, Seventh Circuit Requires Plaintiffs to Present Evidence to Prove Home-State Exception to CAFA Jurisdiction

Photo of Patrick T. LewisBy Patrick T. Lewis on Posted in Class Action Fairness Act, Class Certification
On Tuesday, the Seventh Circuit decided Myrick v. Wellpoint, Inc., Nos. 12-3882, 13-2230, 2014 WL 4073065 (Aug. 19, 2014), which held that plaintiffs were required to produce evidence—and not merely assumptions—about the citizenship of class members to establish the “home-state exception” to CAFA jurisdiction under 28 U.S.C. § 1332(d)(4). The case arose when a health insurer … Continue Reading

Low-Tech Proof In a High-Tech World: Northern District of California Denies Class Certification In Hulu Data Privacy Case

Photo of Matthew FeilBy Matthew Feil on Posted in Class Actions Privacy, Class Certification, Rule 23 Requirements
On June 16, the Northern District of California denied a motion for class certification in In re Hulu Privacy Litigation, No. C 11-03764 LB, ECF No. 111.  The plaintiffs in that action alleged that Hulu violated the Video Privacy Protection Act (“VPPA”) by disclosing personal identification information (“PII”) to third parties, including Facebook.  Hulu provides … Continue Reading

Loreto v. The Procter & Gamble Company: Southern District of Ohio Grants Motion to Strike Class Allegations in Consumer False Advertising Case

By Nicole Skolout on Posted in Advertising Class Action, Class Certification, Consumer Class Action, Rule 23 Requirements
In a significant decision, the Southern District of Ohio granted, in full, the defendant’s motion to strike class allegations in a consumer false advertising class action before any significant discovery had taken place or the plaintiffs filed a motion for class certification.  Loreto v. The Procter & Gamble Company, No. 1:09-cv-815, 2013 U.S. Dist. LEXIS … Continue Reading

New Jersey Judge Certifies TCPA Junk Fax Class

Photo of Julian PerlmanBy Julian Perlman on Posted in Advertising Class Action, Class Certification, Consumer Class Action, TCPA
In a significant decision for companies that engage in electronic marketing, a New Jersey federal judge certified a 23(b)(3) class claiming violations of the Telephone Consumer Protection Act (“TCPA”; 47 U.S.C. § 227(b)(1)(C)). In A&L Industries Inc. v. P. Cipollini Inc., case no. 2:12-cv-07598 in the U.S. District Court for the District of New Jersey, … Continue Reading
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