Articles

2020

The Top Two Drafting Considerations for a Class Action Settlement Agreement
By Lara Flath and Boris Bershteyn – May 29, 2020
The critical provisions you must pay attention to when negotiating and drafting a class action settlement agreement: the scope of the release and allocation of opt-out risk.

Continuing Jurisdiction: A Federal Court’s Power to Enforce a Nationwide Class Action Settlement
By Theodore W. Seitz and Kyle M. Asher – May 29, 2020
Tips to ensure that your nationwide class action settlement is not undermined after final approval is granted.

The ABCs of Class Action Settlement for Attorneys and Consultants
By James E. Richardson – May 29, 2020
Four key lessons learned during a roundtable discussion on current issues in class action settlement hosted by the Section of Litigation’s Class Actions & Derivative Suits and the Young Advocates Committees.

Book Review: The Conservative Case for Class Actions, by Brian T. Fitzpatrick
By Donald R. Frederico – May 29, 2020
Why are class actions consistent with conservative thinking?

Does Bristol-Myers Squibb Co. v. Superior Court Apply to Class Actions?
By Jordan Elias and Adam E. Polk – February 25, 2020
The key arguments all plaintiff’s counsel should be making to oppose application of BMS to their class actions.

Issue Certification under Rule 23(c)(4) Experiences a Resurgence Despite a Circuit Split
By Julie C. Webb and J. Matthew Goodin – February 25, 2020
Remember to consider this when developing your class certification strategy.

What Is Comcast’s Lasting Impact in Antitrust Class Actions?
By Daniel J. Boland and Kaitlin L. O’Donnell – February 25, 2020
The presence of uninjured class members matters most.

Seven Canadian Class Action Appellate Decisions of 2019 That You Should Know
By Michael A. Eizenga, Ranjan K. Agarwal, Katrina E. Crocker, and Celeste Poltak – February 25, 2020
It was another busy year for the Supreme Court of Canada and Ontario’s apex court.

2019

Director Independence and the Bond of Friendship
By Maeve O’Connor, Elliot Greenfield, and Tristan M. Ellis – December 10, 2019
Recent decisions reflect increased attention to social connections and other noneconomic factors that may undermine director independence.

Tips for Dealing with Inspection Demands
By Mark R.S. Foster and Ryan Keats – December 10, 2019
Inspection demands are the canary in the coal mine. They almost invariably foreshadow shareholder litigation. Be prepared with a strategy when they arrive.

Why We Need a State-Level Private Securities Litigation Reform Act
By Virginia F. Milstead – December 10, 2019
With class actions arising under the Securities Act of 1933 being filed in state courts with increasing frequency, state legislatures should consider enacting state-level versions of the 1995 act.

The Securities Litigation Uniform Standards Act’s Prohibition of Artful Pleading
By John N. Bolus and Mary K. Mangan – December 10, 2019
In reviewing a class action complaint involving securities, be mindful of the gravamen of the complaint when evaluating whether the act may bar non-fraud state law claims that may be fraud or omission claims in disguise.

“I Got a Bad Feeling About This”: Are Caremark’s Walls Closing In on Directors?
By Gregory L. Watts – December 10, 2019 
Two recent decisions holding that “mission critical” aspects of a corporation’s business require more rigorous board oversight might signal an emerging trend in Delaware that will make it easier for shareholder plaintiffs to plead and prove Caremark claims.

Has the Debt Collection Industry Captured the CFPB?
By Michael D. Donovan – September 27, 2019
The CFPB’s proposed new rule implementing the Fair Debt Collection Practices Act indicates that the CFPB has been captured by the debt collection industry it regulates.

The Un-Easy Street of Class Action Settlements: Strategies for Preventing and Mitigating Fraud in Claims Administration
By Jennifer L. Mesko and Chelsea Smith – September 27, 2019
Fraud in the claims process is a land mine for counsel on both sides of the aisle.

What Has Changed with Article III Standing in Consumer Class Actions after Spokeo v. Robins?
By Melanie A. Conroy – September 27, 2019
Courts diverge on how to apply Article III standing to consumer privacy and data breach class actions after the landmark Supreme Court decision.

Whither McGill? The Intersection of Federal Arbitration Act Preemption and Public Injunctions
By Michael P. Daly, Mark D. Taticchi, and Matthew J. Adler – September 27, 2019
Are there any teeth to the California Supreme Court’s pronouncement that arbitration agreements violate a previously obscure provision of California law if they prohibit consumers from seeking so-called public injunctive relief in both court and arbitration?

Must You Take "No" for an Answer?
By Martin Woodward – May 21, 2019 
Options after an adverse Rule 23(f) ruling in theory and practice.

A Circuit Split Arises over the Admissibility of Evidence on Class Certification
By Fred Burnside and Lauren Rainwater – May 21, 2019
The Ninth Circuit broke from its sister courts in concluding that evidence considered on a motion for class certification need not be admissible evidence.

Why All Federal Courts Should Adopt the Ninth and Sixth Circuits’ Approach to Removal under CAFA
By Nicole Moran – May 21, 2019
A (second) window of opportunity for removal is consistent with CAFA’s purpose of ensuring that significant interstate class actions are heard in federal court.

The Case for a Broader Reading of China Agritech’s Answer to Its Narrow “Question Presented”
By Thomas J. Moloney, Christina Karam, and JD Colavecchio – May 21, 2019
The case should be interpreted to prevent the filing of new class claims no matter the reason for dismissal of the original class claims.

Fair Credit Reporting Act Class Actions: Standing and Class Certification in the Wake of Pitre v. Wal-Mart Stores, Inc.By Steven Moore and David Yudelson – May 21, 2019
Defendants facing an FCRA class action may launch a factual attack on standing similar to the one that was successful in Dolison v. SavaSeniorCare Administrative Services.

New Limits on Forum Shopping: Standing and Jurisdiction as Hurdles in Class and Mass Actions
By Rishi Zutshi, Lina Bensman, Ariel M. Fox, Kate Massey, and Miranda Gonzalez – May 21, 2019
Most recently, the Supreme Court has acted to rein in vertical forum-shopping with respect to federal statutory violations.

What Does Blockchain Mean for Dispute Resolution?
By Nicole Moran – March 6, 2019
Centralized and distributed ledgers of market and financial data may allow for more efficient collection and analyses of crucial data in a variety of disputes, including class actions.

Judicial Skepticism and the Class Action Settlement Approval Process
By Jason J. Thompson – March 6, 2019
Obtaining preliminary approval today requires much more time and attention to detail than in the past.

Supreme Court Issues a Pair of Unanimous Arbitration Decisions
By Jordan Elias and Adam E. Polk – March 6, 2019
In two January 2019 opinions written by the two newest justices, SCOTUS added to its growing body of arbitration jurisprudence.

Book Review: Class Action Strategy & Practice Guide
By Fabrice Vincent – March 6, 2019
Ever-evolving class action tactics, case law, and rules make this insightful practice guide a must-read for lawyers, judges, advocates, and decision makers at every level.

2018

The Revival of Rule 68 as a Factor in Class Actions
By Fred Burnside and Zana Bugaighis – October 31, 2018
A defendant's unaccepted offer of judgment may make the plaintiff atypical and inadequate.

Defending Competing and Repetitive Class Actions
By John E. Goodman – October 31, 2018
Race to judgment, first-to-file rule, venue transfer, consolidation, and anti-suit injunctions.

Caution: Legal Road Ends Ahead for Automated Vehicles
By Michael Nelson, Ali Jessani, and Trevor Satnick – October 31, 2018
What happens when AVs attempt to navigate a lawless landscape?

The Business of Class Actions and Recent Tax Developments
By Julia Damasco and Nicholas Sanchez – October 31, 2018
The Tax Cuts and Jobs Act should cause attorneys and their advisors to reevaluate the best type of entity for their legal practice.

LIBOR VII's Implications for Expert Evidence at the Class-Certification Stage
By Antonia Apps, Jed Schwartz, David Marcou, and Rebecca Hall – July 17, 2018
The case confirms the obsolescence of earlier case law propounding the application of a less stringent burden to plaintiffs’ expert evidence at class certification.

Disclosure of Third-Party Litigation Funding Arrangements in Class Action Litigation
By Audra J. Soloway – July 17, 2018
There appears to be growing support for either court-imposed or legislative rules requiring disclosure of litigation funding agreements in class actions.

A Road Map to the Upcoming Rule 23 Amendments
By Jonathan H. Beemer – July 17, 2018
Four core amendments address class notice, "frontloading" class notice, final settlement approvals, and professional objectors.

A Standing Invitation: Zappos Suggests Post-Dismissal Challenges to the Problem of the Uninjured Data Breach Class Member
By R. Jay Taylor, Jr. – May 21, 2018
An indication that the Ninth Circuit will not allow the claims of unharmed class members to proceed to a class-wide trial.

Status Quo Maintained: Supreme Court of Delaware Precludes Stockholder Derivative Claims
By Karl A. Bekeny and Jennifer L. Mesko – May 21, 2018
The decision aligns with both Delaware and federal precedent holding that preclusive effect may be given to other courts’ decisions on demand futility without running afoul of the Due Process Clause.

Class Actions 101: Tips for Early Motion Practice in Defending Class Actions
By Michael D. Leffel and Aaron R. Wegrzyn – May 21, 2018
Learn what options you should consider at the outset of defending a class action lawsuit.

Bristol-Myers Squibb Co. v. Superior Court: Federal District Courts Begin Weighing In
By Katherine S. Kayatta – May 21, 2018
The majority of courts have held that they do not have personal jurisdiction over nonresident defendants for claims brought by nonresident plaintiffs.

A Standing Invitation: Zappos Suggests Post-Dismissal Challenges to the Problem of the Uninjured Data Breach Class Member
By R. Jay Taylor, Jr. – May 21, 2018
An indication that the Ninth Circuit will not allow the claims of unharmed class members to proceed to a class-wide trial.

Plaintiffs’ Practice: Vetting and Preparing Putative Class Representatives for Challenges to Their Adequacy
By Robert Neary – May 21, 2018
Tips for evaluating named plaintiffs, preparing them for the case, and entering into a retainer agreement.

Tilting at Windmills: Nationwide Class Settlements after In re Hyundai and Kia Fuel Economy Litigation
By Jordan Elias and Adam E. Polk – February 28, 2018
The case has negative implications for all class action stakeholders.

Developments in the Use of Statistical Sampling in the Class Context
By Jason Kellogg – February 28, 2018
The courts must now address questions of whether the sampling is reliable and whether sampling fits within the context of a particular case.

When Would a Reasonable Consumer Be Misled by the Product’s Packaging in Slack-Fill Lawsuits?
By Michael C. Zogby and Katherine McBeth – February 28, 2018
When it comes to opening a package containing food or other products, is what you see what you get?

When Is Enough Enough? SCOTUS to Consider the Scope of American Pipe’s Tolling Doctrine
By Erin E. Rhinehart – February 28, 2018
The appellate courts' decisions, however, have left litigants with a complicated and conflicting web of analyses.

Roundup of Recent Class Action Trials, 2016 to 2018
By Elizabeth J. Cabraser and Fabrice N. Vincent – February 28, 2018
A review of eight class action cases that have been effectively tried.

2017

Class Is in Session: CFPB Prohibits Anti–Class Action Arbitration Clauses
By David Slarskey and Evan Fried – October 10, 2017
An interview with Michael Calhoun, president of the Center for Responsible Lending, about the new rule.

Delaware Supreme Court to Address Whether Federal Due Process Protects Repetitive Derivative Suits
By Caroline Zalka and Robert S. Ruff – October 10, 2017
The court’s upcoming Wal-Mart decision will affect the behavior of derivative litigants around the country.

Is the Delaware Section 220 Tango Worth the Wait?
By Frank R. Schirripa and Daniel B. Rehns – October 3, 2017
The strong likelihood of long and protracted litigation is an incentive to win the race to the courthouse.

Supreme Court Rules That Securities Act Time Bar Is Not Subject to American Pipe Tolling
By Christopher F. Moriarty – October 3, 2017
Absent class members with significant losses in securities-related actions should be prepared to take a more active role in monitoring securities-related class actions.

Citizenship under CAFA: Key Recent Decisions from the Sixth, Eighth, and Ninth Circuits
By Russell Lewis, Amy Hefley, and Cornelius Sweers – October 3, 2017
Learn how these decisions have significant implications for plaintiffs and defendants alike.

Tips for Minding the “Ascertainability” of a Class
By Lester Hooker and Kyla Grant – October 3, 2017
The sharp and growing circuit split over whether a heightened ascertainability standard applies at class certification.

Three Circuits Say Shady Grove Requires American Pipe Tolling for Serial Class Actions: Are They Right?
By Brian Troyer – July 31, 2017
A significant shift in the landscape of class litigation leaves it more favorable to plaintiffs in the Sixth, Seventh, and Ninth Circuits.

After Concepcion, Arbitration Agreement Validity Hinges on State Law
By Jeffrey Salas – July 31, 2017
Lower courts have recently sought to narrow the perceived broad scope of the Supreme Court’s rulings.

U.S. Supreme Court “Material”: Item 303 Circuit Split
By Jacqueline Meyers – July 31, 2017
The Court agrees to resolve the conflict between the Ninth Circuit’s and the Second and Third Circuits’ approaches to the interplay of Item 303 and Rule 10b-5.

Stay in Your Lane and Stick to the Text: Justice Gorsuch on Class Actions
By Ashley Bruce Trehan – May 1, 2017
What litigators need to know about the newly minted justice's opinions in class action cases.

Class Actions 101: Does the Fairness in Class Action Litigation Act of 2017 Spell Doom for Class Actions as We Know Them?
By Paul Karlsgodt – May 1, 2017
Some consumer advocates worry that the bill will destroy class action litigation altogether.

Calculating Damages in Price-Fixing Cases in the United States, Canada, and the European Union
By Pierre Crémieux, Marissa Ginn, and Marc Van Audenrode – May 1, 2017
Learn the mathematical underpinnings of overcharge damages calculations, pass-on, and lost profits on lost sales.

How Designation of Expert Witnesses Can Make or Break Privilege
By Daniel Barsky – May 1, 2017
Tips to avoid having to disclose critical trial strategy to your opponent.

“Concrete” Disparities in Article III Case Law after Spokeo
By Michael N. Wolgin – January 31, 2017
Some courts independently analyze whether concrete harm has been alleged; others find the violation of certain statutory “rights” to be inherently concrete.

Yellow Flags Are Not Red Flags: Delaware Court of Chancery Rejects Caremark Claim in Reiter v. Fairbank
By Joseph W. Swanson – January 31, 2017
A board’s good-faith attention to a company’s most pressing compliance risks should help the directors avoid personal liability.

A Comparison of Damage Theories in Price-Fixing Cases in the United States, Canada, and the European Union
By Pierre Crémieux, Marissa Ginn, and Marc Van Audenrode – January 31, 2017
What can you claim?

Clarifying Cooperation under Rule 1: A Command or a Recommendation?
By Kathryn Honecker and Jonathan Udell – January 31, 2017
At least one district court has threatened to sanction counsel who do not cooperate.

2016

Do We Really Need Two Rounds of Largely Duplicative Briefing?
By Adam Polk – October 24, 2016
An argument for a streamlined settlement approval process.

Class Actions 101: Mooting a Putative Class Action after Campbell-Ewald Co. v. Gomez
By Katherine S. Kayatta – October 24, 2016
A survey of court decisions grappling with the questions left unanswered by the U.S. Supreme Court.

Combating Objectionable Objections
By Jonathan Uslaner and Brandon Marsh – October 24, 2016
Rule 23 rules committee takes aim at frivolous objections to class settlements.

Anonymity, Arbitration, and Purloined Documents: The Ashley Madison Data Breach Litigation
By Matthew M.K. Stein – October 24, 2016
A case complicated by hacker-released information on cheating spouses and internal documents.

Class Actions 101: How I Began My Practice
By Emily J. Kirk – July 19, 2016
Our area of litigation is a rewarding practice for attorneys on both sides of the "v."

Shorthanded SCOTUS Hands a Victory to Data Aggregation Site—For Now
By Ashley Bruce Trehan and Kenneth L. Racowski – July 19, 2016
The Spokeo opinion reads as a compromise that sought to avoid a 4–4 decision.

What Does "Prevailing Party" for Title VII Defendants Mean?
By William M. Dunham – July 19, 2016
The Supreme Court finally clarifies in a unanimous decision.

D.C. Circuit Sharpens the Edges of Post–Class Action Settlement Ancillary Jurisdiction
By Joshua S. Levy – July 19, 2016
Eighty years after Mellon v. Goodyear, a lot has changed, but the preference for settlement has not.

Rule 23 Proposed Changes En Route
By Andrew J. McGuinness – February 29, 2016
An update on the latest committee meeting.

Why the Rules Subcommittee Should Steer Clear of "No Injury" Class "Reform"
By James J. Bilsborrow – February 29, 2016
The real motive: to slice and dice class lawsuits and do away with consumer class actions entirely.

Keeping Plaintiffs in the Driver's Seat: The Supreme Court Rejects "Pick-Off" Settlement Offers
By Jonathan Uslaner and Brandon Marsh – February 29, 2016
The Court has held unequivocally that defendants cannot force piecemeal adjudications through such individualized offers.

SCOTUS v. the Ninth Circuit on Failure to Enforce ERISA Stock-Drop Pleading Standard
By Michael A. Valerio – February 29, 2016
The Court makes its opinion clear in Amgen vs. Harris.

Helpful Class Settlement Guidance from Two Recent Circuit Opinions
By J. Trumon Phillips – February 29, 2016
A minority of courts have created a "public policy" exception to Article III standing.

Class Notice Version 2.0: Revising Rule 23 for the Internet Age
By Martin Woodward – February 29, 2016
Today, the rule's provisions look like relics in obvious need of an upgrade.

2015

Class Actions 101: A Refresher on the Act that Transformed Federal Court Class Actions
By Ashley Bruce Trehan – November 30, 2015
Ten years after its passage, CAFA remains a necessary tool among class action litigators faced with deciding important questions.

What Are the Effects of Dart Cherokee on Eighth Circuit Removal Practice?
By Christopher J. Schmidt and Timothy J. Hasken – November 30, 2015
The case came out of the Eighth Circuit. Class action litigators should understand how it changed CAFA in that circuit.

Rule 23 Subcommittee Narrows Possible Rules Changes
By Andrew J. McGuinness, Esq. – October 30, 2015
A look at what's in and what's out.

Notice of Class Action Settlement: Don't Forget the Regulators
By Robert DeWitte – November 30, 2015
Class members are not the only parties that must be notified.

Data Breach Class Claims Survive Clapper
By Kristin Shepard – September 9, 2015
The Seventh Circuit finds that the plaintiffs' alleged future injuries satisfied Article III in Neiman Marcus data breach case.

Under the Shady Grove of an Alabama Pine
By Matthew M.K. Stein – September 9, 2015
State laws that limit class actions in certain contexts are at risk of falling under the shade of Rule 23's axe.

Overbroad Class Actions: Here to Stay or Going Out of Style?
By Geoff Wyatt and Jordan Schwartz – September 9, 2015
While some courts agreed that no-injury class actions are not viable, a significant number have reached the opposite conclusion.

Resolving the Dispute over Injunctive Relief Classes
By Steven N. Feldman and Ellen C. Kenney – September 9, 2015
A minority of courts have created a "public policy" exception to Article III standing.

Class Actions 101: Possible Amendments to Rule 23
By Robert J. Herrington – June 2, 2015
The proposed changes could have a great impact for years to come.

The Rule 23 Subcommittee Should Have Taken on Ascertainability
By Andrew Trask – June 2, 2015
The question has long been considered a vital case management tool.

The Rule 23 Subcommittee's April 2015 Proposal on Issue Classes
By Paul G. Karlsgodt and Jacqueline K. Matthews – June 2, 2015
A starting point in the discussion.

Rule 23: Welcome to the Cy Pres Party
By Timothy G. Blood and Paula M. Roach – June 2, 2015
The doctrine's widespread use begs for guidance that only this Federal Rule can provide.

Rule 23 Proposals Could Clarify Cy Pres Awards
By Gillian L. Wade – June 2, 2015
Plagued by ambiguity, the doctrine has become fertile ground for objectors.

Courts Take Notice of Class Action Settlement Processes
By Robert DeWitte – February 19, 2015
Federal district and appellate courts have started setting new, more stringent standards.

Much More Than "Housekeeping": Rule 23(c)(4) in Action
By Jonathan Uslaner – February 19, 2015
Some courts see the rule permitting issue classes as a powerful alternative to "complete" certification.

Is Digital the New Print in Class Action Notification Programs?
By Steven Weisbrot – February 19, 2015
The times, they are a-changin' . . . mostly.

After Concepcion, Is Your "New" Arbitration Agreement Still Enforceable?
By E. Colin Thompson and Amy Reagan – February 19, 2015
Federal courts have announced that not all provisions will be.

Class Actions 101: Settlements
By Manfred Muecke – February 19, 2015
Learn the blueprint of what a plaintiff's counsel might expect to see at the time of settlement.

2014

Class Actions 101: Multidistrict Litigation Proceedings
By Gregory C. Cook – November 19, 2014
A primer on the MDL and streamlining the pretrial process.

Supreme Court Kicks American Pipe Tolling Case: What Does It Mean?
By Andrew J. McGuinness – November 19, 2014
IndyMac may offer a double silver lining for the plaintiffs' bar.

SCOTUS Approaches Review of Question: Does the Violation of a Statutorily Created Right Create Article III Standing?
By Randall W. Edwards, Sabrina Heron Strong, and Mimi Vu – November 19, 2014
At stake is nothing less than what a consumer must show to bring a claim for violations of federal law.

Are Data Breach Cases the Next Wave of Class Action Litigation?
By Kristin A. Shepard and Matthew E. Kohen – November 19, 2014
These claims are surviving motions to dismiss in some federal district courts.

Class Action Suits in the Data Breach Context
By Katherine Ritchey, Jay Johnson, and Nandini Iyer – November 19, 2014
Data privacy laws across the country merit increased attention.

The Financial Institution Class Action Plaintiff: A New Frontier in Data Breach Litigation
By David Slade – November 19, 2014
Some estimates indicate that the cyber crime economy is more lucrative than the drug economy.

Class Actions 101: What Every Solo Practitioner Needs to Know
By Jocelyn D. Larkin and Andrew J. McGuinness – August 28, 2014
Your clients rely on you for answers. You need to have them. We're here to help.

How to Be a Better Class Action (Defense) Lawyer
By Donald R. Frederico – August 28, 2014
Move to the head of the class by learning the steps that lead to class action mastery.

What Fifth Third Bancorp v. Dudenhoeffer May Mean for ERISA Stock-Drop Litigation
By Michael A. Valerio and Ben V. Seessel – August 28, 2014
The decision will alter the framework of these cases in important ways.

Recent ERISA Decisions Favor Certification
By Mark G. Boyko – August 28, 2014
Courts have had little trouble finding commonality satisfied in these cases, even post-Dukes.

Defense Strategies for ERISA Class Actions
By Jeffrey D. Gardner – August 28, 2014
Entering this realm of class actions can feel a bit like waking up in the Land of Oz.

Class Actions 101: Frequently Asked Questions about Class Discovery
By Matthew M.K. Stein – June 3, 2014
Know the strategic approaches to take during your first class action.

Class-Representative Adequacy: Preparing for and Responding to Attacks on Plaintiffs
By Anna P. Prakash – June 3, 2014
Counsel should be mindful of potential attacks on a client's adequacy and the client's potential responses.

A Discovery Checklist for Defeating Certification on Adequacy Grounds
By Damian Santomauro, Melissa DeHonney, and Caroline E. Oks – June 3, 2014
Learn how to test whether a plaintiff and counsel can "fairly and adequately" represent the putative class.

Establishing "Future Damages" as Basis for Federal Jurisdiction under CAFA
By Jay P. Barron – June 3, 2014
The act is sometimes the best and only opportunity to get into federal court.

Experts and Expert Depositions in Class Actions
By Daniel J. Barsky and James Langenfeld – June 3, 2014
Courts often require a plaintiff to provide detailed evidence in support of the certification motion.

The Law and Economics of Class Actions: Yesterday, Today, and Tomorrow
By James Langenfeld and Raleigh Richards – January 30, 2014
A summary of important cases and developments featured at the 2013 Class Action Landscape conference.

2013

How I Began My Class Action Practice
By Kate R. Isley – December 19, 2013
One lawyer's journey from general litigation to class action expertise.

Trial Presentation Made Easy
By Steve D. Larson and Angel Falconer – December 19, 2013
Technology is great, but with complex cases like class actions, sometimes an assistant is even better.

Living in a Post-Dukes World
By Jocelyn Larkin and Della Barnett – December 19, 2013
What is the meaning of "trial by formula"?

Reflections from the 2013 National Institute on Class Actions
By Daniel R. Karon – December 19, 2013
This year's chair reports from the most successful Institute yet.

Throwing to First: A Defendant's Pick-Off Move
By Matthew M.K. Stein – September 19, 2013
The strategy may have received new life from Genesis Healthcare Corp. v. Symczyk.

Class Action Ethics in Standard Fire v. Knowles
By Catha Worthman – September 19, 2013
The exception can prevent a federal court from exercising jurisdiction over a class action case.

Class Actions 101: A Primer on Finding Plaintiffs for Your Class Action . . . Ethically
By Kathryn Honecker, Julia Campins, and Laura Van Buren – September 19, 2013
When identifying plaintiffs, attorneys must navigate both Rule 23 and their ethical duties.

Book Excerpt: Communications with Putative Absent Class Members
By Fabrice N. Vincent and Jahan C. Sagafi – September 19, 2013
An excerpt from the introduction to the 2013—2014 edition of the ABA Survey of State Class Action Law.

Ninth Circuit Limits Fee Awards to Class Counsel in Coupon Settlement Context
By Mark D. Taylor and Teresa H. Michaud – June 21, 2013
The court interpreted the CAFA to restrain both the amount and timing of attorney-fee awards when class members receive coupons.

A Guide to Navigating CAFA's Home-State Exception
By Christopher E. Roberts – June 20, 2013
The exception can prevent a federal court from exercising jurisdiction over a class action case.

Standard Fire v. Knowles: Changing the Burden of Proof of CAFA's Amount in Controversy
By Jordan Grotzinger – June 20, 2013
The Court may have changed the law regarding CAFA's $5 million jurisdictional minimum.

CAFA Jurisdiction after Class-Certification Denial
By Matthew Stein and Aaron T. Morris – June 20, 2013
Courts appear to be reaching a consensus that denial does not destroy CAFA jurisdiction.

Supreme Court Reverses Class Certification in Comcast Corp. v. Behrend
By Andrew J. McGuinness – April 1, 2013
The Court held that it was an error for lower courts to refuse to scrutinize the proffered damages model because it would impermissibly invade the merits at class certification.

Class Actions 101: Surviving a Rule 12 Motion to Dismiss
By Christopher E. Roberts – March 18, 2013
In the wake of Twombly and Iqbal, here are five lessons to keep in mind when drafting your next complaint.

Ascertainability in Alleged Misrepresentation Cases
By Todd Willis – March 18, 2013
Defense counsel should attack class definitions early.

Circumventing the Ascertainability Roadblock
By Dawn M. Goulet – March 18, 2013
Does Rule 23(b)(2) offer a creative way around this requirement for consumer plaintiffs?

The Limited Scope of the Ascertainability Requirement
By Daniel Seltz and Jordan Elias – March 18, 2013
Courts should take care not to stretch this useful requirement beyond its intended purposes.

Why Class Definitions Matter
By Donald R. Frederico – March 18, 2013
They may be the key to unlocking the mysteries of class certification.

Defendants Missing Opportunities to Remove Class Actions to Federal Court
By Gregory G. Katsas and Jeffrey A. Mandell – June 20, 2013
The best reading of the removal provision allows defendants leeway to remove almost any class action.

2012

The Numbers Game: Dukes and Concepcion
By Robert J. Herrington – November 20, 2012
Are class action filings down since these Supreme Court rulings? Should class action practitioners start looking for other work?

Battle for Vindication of Statutory Rights Post-Concepcion
By Scott T. Schutte, Thomas J. Sullivan, Gregory T. Fouts, and Ezra D. Church – November 20, 2012
Class actions issues are hot, and if the Supreme Court's docket this term is any indication, the trend shows no signs of cooling off.

Post-Concepcion Push-Back: Challenges to Arbitration
By Peter J. Korneffel and Kathryn R. DeBord – November 20, 2012
Throughout the history of the Federal Arbitration Act, courts have struggled with scope of jurisdiction and discretion to determine the validity and enforceability of arbitration clauses.

Dealing with Competing Class Actions
By Michael R. Pennington and John E. Goodman – November 20, 2012
Knowing the tools available for competing class actions will give defense counsel and the defendant the best opportunity to tailor a successful strategy.

The Rise of Foreign Class Action Jurisprudence
By Lindsey Gomez-Gray – November 20, 2012
Gone are the days when the class action was a uniquely American concept.

Ninth Circuit Reshapes California Consumer-Protection Law
By Elizabeth J. Cabraser, Jonathan D. Selbin, Jahan C. Sagafi, and Jason L. Lichtman – July 18, 2012
In a stark departure from prior case law, Mazza side-stepped controlling California substantive law and substituted its own understanding of federal policy.

Rule 23(b)(2) Certification after Wal-Mart v. Dukes
By Adam C. Dembrow – July 18, 2012
Some day it may become impossible to certify claims for monetary relief under Rule 23(b)(2), but, for now, it is possible in a narrow range of circumstances.

How Wal-Mart v. Dukes Affects Securities-Fraud Class Actions
By Robert H. Bell and Thomas G. Haskins Jr. – July 18, 2012
The Dukes decision adds more fuel to the circuit split over whether materiality must be proven as part of the fraud-on-the-market presumption for class certification.

Wal-Mart v. Dukes: Raising the Bar for Class Actions
By Melissa Colón-Bosolet and Consuelo Kendall – July 18, 2012
A few cases indicate that, in light of Dukes, the law is in flux concerning the proper inquiry to apply to expert testimony at the certification stage.

D.R. Horton and Class-Waiver Arbitration Provisions
By Hillary Benham-Baker – July 18, 2012
The NLRB has strongly asserted itself in the fight over class-action waivers in employer-mandated arbitration agreements.

Class Actions 101: We All Still Need Class Actions
By Jocelyn D. Larkin – July 18, 2012
With class actions in the news and the Supreme Court deciding a couple of pro-employer cases, a new practitioner might wonder if class actions have hit their sell-by date.

Confusion in Court over "All Natural" Claims
By Dawn Goulet – April 30, 2012
Costly litigation will continue until the FDA finally defines the term.

Mazza's Impact on False-Advertising Class Actions
By Kelsey M. Larson and Carlos M. Lazatin – April 30, 2012
The case will likely make it more difficult to certify consumer class actions for false advertising under California law, unless they involve a huge marketing campaign.

The Case Against Counterclaim Class Actions
By Michael Walker – April 30, 2012
A class-action counterclaim adds claims and persons that have no relevance to the original action, and it delays decisions on the original claims.

Class Actions 101: A Primer on Elevated Health Claims
By Kathryn Honecker and Eric Zard – April 30, 2012
Do you have questions about asserting or defending claims that a product's marketing or labeling contains exaggerated or untrue health statements? Find answers here.

2011

The End of Federal Injunctions of State Certification?
By Stuart M. Feinblatt – November 21, 2011
A recent Supreme Court ruling suggests that federal courts are never authorized to enjoin state-court, class-action proceedings, at least under the re-litigation exception.

What You Need to Know about Wal-Mart v. Dukes
By Stephen G. Harvey and Angelo A. Stio III – November 21, 2011
Dukes undercuts the advantages of the class action from the perspective of plaintiffs and their lawyers.

Statistical Analysis and Wal-Mart v. Dukes
By Chip Hunter – November 21, 2011
The Wal-Mart decision sharpens the focus on the use of economic and statistical expert analysis and testimony in class certification.

Fraud on the Market Is Reaffirmed in Halliburton
By Travis Neal – November 21, 2011
After Wal-Mart, plaintiffs' proffers of evidence will be subject to a rigorous analysis, and their expert witnesses must meet Daubert standards.

Employment Law and Class-Action Waivers
By David A. Prahl – November 21, 2011
Despite the flood of new pro-arbitration decisions, courts have declined to extend Concepcion in some contexts, and the decision's lasting impact is unclear.

Consumer Protection and Employment Cases after Concepcion
By Kirsten Scott and Nicole D. Reynolds – November 21, 2011
Class-action prohibitions in arbitration clauses have become commonplace not only in consumer agreements but also in the employment context.

Settlement Allows Claim Review Instead of Monetary Relief
By Michael Walker – November 11, 2011
An Eleventh Circuit case addresses the availability of multiple forms of fees to class counsel, injunctions against competing suits by opt-out class members, and more.

The Perils of Collecting Information at the Register
By Austin V. Schwing and Matthew S. Kahn – September 8, 2011
A practice at one time widely considered legal under California's Credit Card Act—collecting customers' ZIP codes—is now unlawful under certain circumstances.

Trends in Federal Privacy Class-Action Settlements
By Kristin Shepard, Diane Duhaime, and Scott Byers – September 8, 2011
Given the potential for privacy breaches to have an impact on large groups of individuals, many privacy lawsuits are brought as class actions.

Proving Damages in Database-Breach Class Actions
By Alan R. Poppe – September 8, 2011
Many victims of database breaches point fingers at the entities holding their information, complaining that too little is being done to safeguard it from theft.

Suing over Data Privacy and Behavioral Advertising
By Ian C. Ballon and Wendy Mantell – September 8, 2011
Data-privacy suits may be viewed as a cost of doing business in a digital economy. How a company responds may determine how many more suits get brought against it.

Class Actions 101: Rule 23(b)(2) or (b)(3)? Does It Matter?
By Kathryn A. Honecker and Kevin Hanger – September 8, 2011
Here are answers to common questions concerning the differences between the two class types, when each should be requested, and more.

Class Actions 101: Amended Rules for MDL Take Effect
By Sabrina Strong, Matt Powers, and Justin Mates – July 29, 2011
MDLs involve their own set of unique motions, procedures, and filing requirements, all governed by the rules of procedure of the U.S. Judicial Panel on Multidistrict Litigation.

The Moench Presumption in ERISA Stock-Drop Litigation
By Michael A. Valerio and Ben V. Seessel – July 29, 2011
The Moench presumption the fiduciary duties imposed by ERISA, Congress's intent to encourage employee stock ownership, and principles of trust law.

Nothing Is Certain in Overdraft Fee Litigation
By Amy L. Brown – July 29, 2011
Even if one can argue that the financial crisis is now drawing to a close, the litigation that it spawned—including overdraft litigation—will likely be with us for some time.

Bank Employee Retirement Savings and the Mortgage Meltdown
By Catha Worthman – July 29, 2011
While some workers have recovered losses through breach of fiduciary duty suits, others are hitting obstacles, and their savings may be a casualty of the economic downturn.

The Next Hot Spot for Australia's Class-Action Industry
By S. Stuart Clark, Ross McInnes, and Mikhail Glavac – May 25, 2011
A new class-action procedure New South Wales will allow a broader range of claims to be brought as class actions and put the state on the class-actions radar.

Florida Considers Unconscionability in Class-Action Waivers
By Benjamin Kelley and Jamy Dinkins – April 28, 2011
The Florida Supreme Court heard oral argument in Pendergast v. Sprint Nextel Corp., which considered public-policy exceptions to class-action waivers in arbitration clauses.

BP, Exxon Valdez, and Class-Wide Punitive Damages
By Nimesh R. Desai – March 31, 2011
Exxon Valdez offers important lessons for the BP litigation, particularly in regard to class-action practice and procedure.