January 31, 2014

Class Actions

Class Actions

<br>Your At-A-Glance Tool for Information on Class Actions

Class Actions 101: We All Still Need Class Actions
Jocelyn D. Larkin With class actions in the news and the Supreme Court deciding a couple of pro-employer blockbuster cases last term, a new practitioner might well wonder: Have class actions hit their sell-by date?

 

What Are These Lawsuits All About, Anyway?
Julie Cantor Apple. Gap. Starbucks. They’re high-profile brands with memorable logos, loyal followings, and a permanent place on holiday gift lists. And, like countless other companies, all have found themselves on the defensive end of class action lawsuits.


Class Actions 101: Rule 23(b)(2) or (b)(3)? Does It Matter?
Kathryn A. Honecker and Kevin Hanger Yes, it does matter. In this article, we answer some common questions from young lawyers concerning the difference between a Rule 23(b)(2) class and a Rule 23(b)(3) class.


A New "Viral" Class Action?
Casie Collignon and Paul Karlsgodt As our society becomes more dependent on social media, it only makes sense that social media would influence the landscape in which class action lawsuits are formed, litigated, and settled.


MDL for Beginners
Greg Cook and Jocelyn D. Larkin This could happen to you. You are contentedly prosecuting or defending a class action in your local federal court when you receive a motion to transfer your case and consolidate it with a host of other class actions.


A Primer on Elevated Health Claims
Kathryn Honecker and Eric Zard In this edition of Class Actions 101, we answer some common questions young lawyers may have when asserting or defending claims that a product’s marketing, advertising, packaging, or labeling contains exaggerated or untrue health statements.


We All Still Need Class Actions
Jocelyn D. Larkin Should our merry band of Class Actions & Derivative Suits Committee members pack up our instruments and head to intellectual property or bankruptcy law? Not quite yet. Let’s pause to remember why this whole thing started in the first place.


Can I Appeal this Class Certification Order?
Jocelyn D. Larkin Federal Rule of Civil Procedure 23(f)—still less than 10 years old—provides for the interlocutory appeal of class certification decisions.


How Do I Get this Class-Action Settlement Approved?
Jocelyn D. Larkin Settling a class action can be a complex and daunting task. Even if the parties manage to come to an agreement on the broad range of issues presented in many class actions, the settlement agreement must still run the gauntlet of the district court and potential objectors.


Getting Appointed Class Counsel
Jocelyn D. Larkin Class actions provide lawyers the opportunity to be involved in an exciting, high-profile case with an impact that reaches far beyond the dispute between the original plaintiff and defendant.


When and How Do I Send Class Notice in Federal Class Actions?
Jocelyn D. Larkin In this edition, we answer some common questions about class notice in federal cases.

 

The Class Action Fairness Act of 2005
Read the full text here and the legislative history here.


Understanding the Class Action Fairness Act of 2005
Professor William B. Rubenstein, UCLA Program on Class Actions
Class action lawsuits are among the most prevalent and important forms of adjudication in the U.S. Class actions serve a critical function in enabling private parties to supplement public law enforcement. Yet the class action lawsuit can also be misused.


Summary of CAFA's Changes to Class Action Law 
Jocelyn Larkin, The Impact Fund
The diversity and removal jurisdiction provisions of the Class Action Fairness Act of 2005 are complex and include a variety of exceptions. The following chart provides a summary of the Major changes to diversity and removal of jurisdiction for class actions. It is not intended to be a comprehensive summary of all changes but rather to provide a quick checklist of the major changes under CAFA.


The Class Action Fairness Act of 2005:
An Analysis

Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C.
On January 25, Senator Charles Grassley (R-Iowa) introduced S. 5, the Class Action Reform Act of 2005. The bill was virtually identical to one that had failed the previous July and largely the same as one that was blocked by a filibuster in October 2003. But this time — the November election having resulted in consolidated Republican control over the Senate and an intact Republican majority in the House of Representatives — the bill quickly cleared the Senate Judiciary Committee without amendment, and without a written report to slow its momentum. A week later, the Senate acted on the bill, which passed 72-26 with 18 Democrats’ votes.


Appeal of Interlocutory Remand Orders in Putative Class Action Cases
Karen S. Precella and Kelli Benham
You cannot appeal a remand order based on lack of subject matter jurisdiction or defects in the removal procedure, right? That may not be so anymore for certain remand orders on cases removed pursuant to the Class Action Fairness Act (CAFA). CAFA expressly creates appellate jurisdiction to review certain orders granting or denying a remand. Exceptions to appellate jurisdiction granted by CAFA exist, and review is discretionary with the court of appeals. A short 10-day deadline governs the application for permission to appeal, and there is no automatic stay of proceedings in the district court. Nevertheless, the CAFA provisions create an avenue to appeal interlocutory orders on motions to remand that had not been available pre-CAFA for putative class action (or other) cases.

Class Certification after Wal-Mart v. Dukes
Ashish Prasad


Rule 23(b)(2) Certification after Wal-Mart v. Dukes
Adam C. Dembrow  In the year since the Supreme Court’s decision concerning certification of class actions under Federal Rule of Civil Procedure 23, fierce debate has ensued as to the degree to which the decision has heightened the requirements for demonstrating commonality under Rule 23(a)(2).


Between the Lines of Rule 23: Classwise Proof and Administrative Deference
John H. Beisner
In analyzing a motion for class certification, two of the most important factors a court should consider are not explicitly enumerated in Rule 23 of the Federal Rules of Civil Procedure or the applicable state court equivalents. Rather, these two factors—classwide proof and administrative deference—are implicit in the predominance and superiority requirements of Rule 23.


Supreme Court to Review Comcast Class-Certification Appeal
Joseph M. Hanna Esq., partner, Goldberg Segalla LLP, Buffalo, New York The Supreme Court has announced that it will review the Third Circuit U.S. Court of Appeals Comcast v. Behrend decision. The Court will limit its review to the question of “whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” Comcast sought this review, arguing that the plaintiff class does not have the required commonality of interest for class certification.

Canada's Consumer Product Safety Act: A Catalyst for Cross-Border Mass Tort Litigation?
Cheryl M. Woodin and Brian M. Weingarten
 New and expanded product safety legislation in Canada has created an environment ripe for increasing class-action activity across the United States-Canada border.


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


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


Global Class Actions: Lasting Peace or Ticking Time Bombs?
Todd B. Hilsee
When U.S. courts supervising class actions elect to exercise jurisdiction over foreign nationals, it is no easy decision.


The Italian Class Action
Micael Montinari and Dorella Concadoro
Before Law 99/2009 was enacted, Italian law did not provide consumers with class action, despite several recent parliamentary attempts.

Trends in Federal Privacy Class-Action Settlements Kristin Shepard, Diane Duhaime, and Scott Byers


Class Action Settlement: Putting the Brakes on "Copycat" Actions
Christopher P. Ridout After months of informal discovery, countless hours of analyzing statistics with expert consultants, a tireless mediator, and a firm commitment between the parties and counsel, a national class settlement is finally on the horizon.


Seven Steps to a Successful Class Action Settlement
John B. Isbister, Todd B. Hilsee, and Carla A. Peak


Third Circuit Again Rejects National Class-Action Settlement
Michael D. Donovan, Esq., and Elise Garber

The court vacated final approval on the grounds that the lower court “applied the wrong legal standard” to find that the class representatives were “adequate.”

Melee in Manhattan! Class-Action Objectors: Are They Protectors of Absent Class Members or Merely Gadflies? (MP3 Audio Download)
The last decade has seen an explosion in the number of lawyers objecting to class-action settlements. Some of these lawyers are known as professional objectors: lawyers who, as a matter of practice, object to class-action settlements on behalf of individual class members. Depending on an objector's perceived inspiration or motivation, class-action lawyers, defense counsel, and judges sometimes describe objectors as a tax on the legal system, purely seeking fees or worse. But objectors insist that they serve an important purpose in protecting the class by presenting issues involving fees and fairness that neither the class nor defense counsel will raise.


Implications of AT&T Mobility v. Concepcion: Has the Supreme Court Sounded the Death Knell for Some Class Actions? (Audio CD-ROM) The Supreme Court's decision in AT&T Mobility v. Concepcion potentially changed the landscape for some class actions—namely consumer and employment class actions—by giving new vitality to the enforcement of class action waivers in arbitration agreements. In Concepcion, the Supreme Court held that California's Discover Bank rule on unconscionability was preempted by the Federal Arbitration Act because it stood as an obstacle to the accomplishment of the purposes and objectives of the Act.

The objective of this program is to give attorneys involved in pursuing or defending consumer and employment class actions practical insights into the implications of Concepcion, both in terms of judicial enforcement of class action waivers in arbitration agreements and potential Congressional or CFPB actions in response to Concepcion.


Class Actions 2012 (AUDIO CD-ROM)
The program audio and course materials from the 16th Annual National Institute on Class Actions is a must for all attorneys who litigate and try class-action lawsuits. In-house counsel and private lawyers new and old will learn all about significant developments that affect class-action law and its future. To this end, this program includes such timely topics as a class-action primer for new class-action lawyers; recent developments in class-action jurisprudence; strategies for pleading and attacking class definitions; the emerging importance of Rule 23(b)(2) classes; litigating class actions alongside opt-outs; data-privacy class-actions; and managing class-action experts.


Setting EEO Class Actions (Audio Download)
Drafting a settlement agreement in an EEO class action is a complicated and time consuming process that can last months after the monetary terms are determined. This experienced panel addresses challenges that practitioners often face and provide best-practices suggestions for drafting consent decrees including creating fair and workable allocation formulas, determining claims processes, drafting releases, and fashioning fair and effective injunctive relief.

Wal-Mart v. Dukes: Initial Effects on Securities-Fraud Class Certification
Robert H. Bell and Thomas G. Haskins Jr. One of the most anticipated decisions of the U.S. Supreme Court’s 2010 term was Wal-Mart Stores, Inc. v. Dukes, which had the potential to be a landmark case.


Rule 23(b)(2) Certification after Wal-Mart v. Dukes
Adam C. Dembrow In the year since the Supreme Court’s decision concerning certification of class actions under Federal Rule of Civil Procedure 23 in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), fierce debate has ensued as to the degree to which the decision has heightened the requirements for demonstrating commonality under Rule 23(a)(2).


Class Action Settlement: Putting the Brakes on "Copycat" Actions
Christopher P. Ridout After months of informal discovery, countless hours of analyzing statistics with expert consultants, a tireless mediator, and a firm commitment between the parties and counsel, a national class settlement is finally on the horizon.


D.R. Horton and Class-Waiver Arbitration Provisions
Hillary Benham-Baker Over the past several years, employers have increasingly required employees to execute class action waivers, typically as a component of employer-mandated arbitration agreements. This tactic is used by employers as a means of avoiding class liability altogether.


Canada's Consumer Product Safety Act: A Catalyst for Cross-Border Mass Tort Litigation?
Cheryl M. Woodin and Brian M. Weingarten New and expanded product safety legislation in Canada, superimposed on a backdrop of jurisdictions willing to certify mass tort and personal injury claims, has created an environment ripe for increasing class action activity across the United States-Canada border. Thus, the development of the law governing cross-border production issues bears watching.


Circuits Split on Materiality in Securities Class Actions
Swati S. Desai The federal circuit courts remain split regarding whether securities class action plaintiffs must actually prove—or merely plausibly allege—the materiality of misrepresentations at the class certification stage.


Supreme Court Favors Class Action Waivers in Arbitration
Steven J. Mintz The U.S. Supreme Court has swept aside state efforts to restrict class action waivers in mandatory consumer arbitration agreements.


Battle for Vindication of Statutory Rights Post-Concepcion
Scott T. Schutte, Thomas J. Sullivan, Gregory T. Fouts, and Ezra D. Church  Perhaps the biggest issue arising out of Concepcion is whether courts can refuse to enforce a class action waiver where plaintiffs claim that a class action is the only way they can vindicate their state or federal statutory rights.


The Numbers Game: Dukes and Concepcion Robert J. Herrington Are class action filings down since Supreme Court rulings in Dukes and Concepcion? Should class action practitioners start looking for other work?

Newsletter | Class Actions & Derivative Suits | ABA Section of Litigation
A recent decision by the Court of Appeals for the Third Circuit has made class actions under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) even more difficult.

Please visit the Class Actions Committee page for more information on class actions and to join the committee.