Class Counsel Blog

Supreme Court Issues Final Word on Whether Unaccepted Rule 68 Offers of Judgment Moot Putative Class Actions… Or Does It?

Yesterday, the Supreme Court issued a decision in which it held that an unaccepted Rule 68 offer of judgment made to the named plaintiff in a putative class action does not moot the case.  In doing so, the Court seemingly put an end to what was a contentious class action issue—an issue that this blog has followed closely.  Interestingly, however, the Court chose not to decide whether a Rule 68 offer could moot a case if accompanied by a payment in the amount of that offer. Read More ›

Southern District of Ohio Rejects Attempt to Moot Putative Class Action By Using a Rule 68 Offer of Judgment.

The Southern District of Ohio recently weighed in on a currently contentious class
action issue: whether a Rule 68 Offer of Judgment made to the named plaintiff
in a putative class action, prior to the filing of a motion for certification,
makes the entire case moot and non-justiciable.  In a departure from the recent trend within the Sixth Circuit, the court concluded that such an offer does not moot the case. Read More ›

Third Circuit affirms that certified class may include members who are unable to demonstrate any legal injury.

On July 22, 2015, the U.S. Court of Appeals for the Third Circuit ruled that a Rule 23(b)(3) plaintiff class action satisfies the Article III standing requirement that plaintiffs demonstrate an “injury in fact” so long as a named class representative meets that requirement.  Under the ruling, a certified Rule 23(b)(3) class  may include unnamed class members who cannot demonstrate that they have suffered an injury in fact.  However, this new ruling makes clear that litigation classes may be certified without a showing that the unnamed class members satisfy the Article III injury in fact requirement.  The ruling also provides a much expanded supporting rationale for its holding. Read More ›

Northern District of Illinois' Decision Gives Hope to Defendants Facing Class Actions in Unfriendly Venues.

The Northern District of Illinois recently issued a decision highlighting a class action defendant’s ability to transfer venues based on the parties’ convenience.  The court transferred a putative class action from the location of the defendant’s principal place of business in Chicago, Illinois, to where the putative class members resided in San Antonio, Texas.  In doing so, the court transferred the case to a less plaintiff-friendly venue, the Western District of Texas.  This decision provides a useful addition to the toolbox of class action defendants that find themselves in unappealing venues. Read More ›

Second Circuit Joins Circuits Limiting Impact of Individualized Damages Issues on Rule 23(b)(3) Certification After Comcast

The United States Court of Appeals for the Second Circuit has joined the growing number of circuit courts that have rejected a broad reading of Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013).  In Roach v. T.L. Cannon Corp., 2015 WL 528125 (2d Cir. Feb. 10, 2015), the Second Circuit held that Comcast left undisturbed the Second Circuit’s prior holdings that individualized damages determinations alone cannot preclude class certification under Rule 23(b)(3).    Read More ›

Eastern District of Michigan holds that Rule 68 Offer of Judgment moots proposed class representative's claims.

The Eastern District of Michigan recently issued a decision recognizing the power of class action defendants to “pick off” class representatives, and thus prevent class certification, with an Offer of Judgment under Fed. R. Civ. P. 68.  In an April 2, 2014 entry, this blog discussed the unclear status of the law in the Sixth Circuit as to whether defendants can preclude class certification with a Rule 68 offer.  The court’s decision, here, suggests defendants have the right to pick off class representatives early in the litigation when a motion for class certification is not pending.  But it stops short of stating when this right expires. Read More ›

Growing Wave of Class Actions Alleging Deceptive Pricing in Outlet Stores Threatens to Engulf Clothing Retailers Nationwide.

In just one month, there has been an explosion in class action lawsuits against prominent clothing retailers, alleging illegal pricing tactics in their California outlet stores.  Actions have already been filed against four companies: Michael Kors,[1] The Gap,[2] Neiman Marcus,[3] and Saks Fifth Avenue.[4]  But this is likely only the beginning.[5]  And even though this litigation has so far been limited to claims under California law, retailers nationwide would be wise to take any steps available to limit their exposure under similar laws in other states. Read More ›

Tenth Circuit denies relevance of Wal-Mart v. Dukes to class-wide sufficiency of evidence determinations

The United States Court of Appeals for the Tenth Circuit has rejected the relevance of Wal-Mart Stores, Inc. v. Dukes and similar cases addressing commonality under Rule 23 to determinations of whether evidence presented at trial is sufficient to support a common verdict on a class-wide basis.  This decision underscores the importance of combining appeals challenging the sufficiency of evidence to prove class-wide liability with appeals of class certification decisions. Read More ›

Northern District of West Virginia denies certification to improper "fail-safe" class in wage lawsuit against Dollar General Corporation.

The Northern District of West Virginia recently issued a decision rejecting a plaintiff’s request for class certification on the grounds that it was a “fail-safe” class.  This marks the first reported decision from West Virginia in which the court denied certification on the grounds that a putative class was a fail-safe one.  It also serves as yet another reminder to would-be plaintiffs that courts will not indulge these creative attempts to transform what is an individual dispute into a class action by conditioning class membership on the merits of each potential member’s claim. Read More ›

Impact of Rule 23(c)(4) Issue Certification on Rule 23(b)(3) Classes

The trend toward more rigorous review of class certification decisions supported by recent U.S. Supreme Court opinions is likely to create increased focus on the underdeveloped and inconsistent treatment of the intersection between Rule 23(b)(3)’s predominance requirement and the ability to sever class issues from individual issues within a single claim under Rule 23(c)(4).  Currently, the importance of the intersection between these subsections of Rule 23 has been glossed over by many of the courts using Rule 23(c)(4), and circuit courts that have examined this intersection in detail have reached very different conclusions as to the vitality of the predominance test when severing class issues from individual issues.  The ultimate resolution of this issue will significantly impact whether the tide of rigorous analysis of class certification decisions will continue to rise or begin to recede in Rule 23(b)(3) class actions. Read More ›

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Attorney Spotlight

Stephen E. Embry is a member of the Firm's class action, privacy and mass tort groups. He frequently defends participants in consumer class actions and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems.