Ninth Circuit Raises the Bar for Settling Nationwide Consumer-Protection Class Actions
In an opinion that could make certification of nationwide class action settlements considerably more difficult, a divided panel of the Ninth Circuit has ruled that when deciding whether to certify a multistate settlement class, the district court must consider whether differences in state laws cause… Read More
Ninth Circuit Rejects “Administratively Feasible” Requirement in Ascertainability Dispute
As expected, the Ninth Circuit has joined the Sixth, Seventh, and Eighth Circuits in rejecting the Third Circuit’s “administratively feasible” prong of the ascertainability requirement for class certification. Briseno v. ConAgra Foods, Inc., — F.3d —, 2017 WL 24618 (9th Cir. Jan. 3, 2017). But… Read More
Supreme Court Says Plaintiffs in Class and Collective Actions Can Sometimes Use Averages and Representative Samples to Prove Elements of Their Case
The Supreme Court decided yesterday, in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 2016 WL 1092414 (U.S. Mar. 22, 2016), that the named plaintiffs in a wage-and-hours case could use an expert’s calculation of the average time a representative sample of workers took to put… Read More
Ascertainability in Flux: Who’s in and who’s out
A recent decision by the Seventh Circuit Court of Appeals signals a growing divide among the circuits over the “ascertainability” question in class actions. In Mullins v. Direct Digital, LLC, No. 15-1776, — F.3d —, 2015 WL 4546159, at *1 (7th Cir. July 28, 2015),… Read More
Supreme Court Will Hear Case Where Defendant Says Lax Class Certification Standards Allowed the Use of Averages and an Improper “Trial by Formula”
The Supreme Court granted cert. yesterday in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (U.S. June 8, 2015), a case that raises important issues on how class and collective actions are certified and adjudicated—and may allow the Court to provide further guidance on questions it… Read More
Third Circuit Clarifies Its Ascertainability Requirement: A Two-Part Inquiry—But Only a Two-Part Inquiry
The Third Circuit’s recent decision in Byrd v. Aaron’s Inc., No. 14-3050, 2015 WL 1727613 (3d Cir. Apr. 16, 2015), reversed a district court’s denial of class certification because the lower court incorrectly applied the ascertainability requirement to plaintiffs’ proposed Rule 23(b)(3) classes. The appellate… Read More
Class-Wide Unjust Enrichment Claims Doomed by Variation in State Law and Need for Individual Inquiries
This guest post was authored by our colleague Jennifer E. Canfield, an associate in Montgomery McCracken’s Litigation Department and a member of its Class Action Defense practice group. Her practice focuses on defense of consumer class actions, commercial litigation and appellate litigation. She can be… Read More
Second Circuit Says Comcast Does Not Bar Class Certification When Damages Require Individual Proof
Last week the Second Circuit joined a number of other circuits in ruling that the Supreme Court’s decision in Comcast Corp. v. Behrend, 569 U.S. ___, 133 S. Ct. 1426 (2013), does not require plaintiffs seeking class certification under Rule 23(b)(3) to show that damages… Read More
Third Circuit Rules That Whether a Contract Permits Classwide Arbitration is for the District Court, not the Arbitrator, to Decide
In a case of first impression, the Third Circuit has ruled that the district court, not an arbitrator, should decide whether classwide arbitration is available under a contract with an arbitration clause. Opalinski v. Robert Half International Inc., No. 12-4444, 2014 WL 3733685 (3d Cir.… Read More
Early Ruling Strikes Nationwide Class Allegations For Lack Of Standing, Avoiding “Extensive Discovery Costs And Delay”
A recent decision of the United States District Court for the Western District of Pennsylvania dismissed, as a threshold question of jurisdiction, a plaintiff’s allegation seeking a nationwide class, because the plaintiff personally had standing to sue only under the law of the state where… Read More