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Class Actions & Derivative Suits

Articles

Shorthanded SCOTUS Hands a Victory to Data Aggregation Site—For Now

By Ashley Bruce Trehan and Kenneth L. Racowski

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

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

Eighty years after Mellon v. Goodyear, a lot has changed, but the preference for settlement has not.


Class Actions 101: How I Began My Practice

By Emily J. Kirk

Our area of litigation is a rewarding practice for attorneys on both sides of the "v."


Rule 23 Proposed Changes En Route

By Andrew J. McGuinness

An update on the latest committee meeting.


Keeping Plaintiffs in the Driver's Seat: The Supreme Court Rejects "Pick-Off" Settlement Offers

By Jonathan Uslaner and Brandon Marsh

The Court has held unequivocally that defendants cannot force piecemeal adjudications through such individualized offers.


Why the Rules Subcommittee Should Steer Clear of "No Injury" Class "Reform"

By James J. Bilsborrow

The real motive: to slice and dice class lawsuits and do away with consumer class actions entirely.


Class Notice Version 2.0: Revising Rule 23 for the Internet Age

By Martin Woodward

Today, the rule's provisions look like relics in obvious need of an upgrade.


SCOTUS v. the Ninth Circuit on Failure to Enforce ERISA Stock-Drop Pleading Standard

By Michael A. Valerio

The Court makes its opinion clear in Amgen vs. Harris.


Helpful Class Settlement Guidance from Two Recent Circuit Opinions

By J. Trumon Phillips

A minority of courts have created a "public policy" exception to Article III standing.


Class Actions 101: A Refresher on the Act that Transformed Federal Class Actions

By Ashley Bruce Trehan

Ten years after its passage, CAFA remains a necessary tool among class action litigators faced with deciding important questions.


Notice of Class Action Settlement: Don't Forget the Regulators

By Robert DeWitte

Class members are not the only parties that must be notified.


What Are the Effects of Dart Cherokee on Eighth Circuit Removal Practice?

By Christopher J. Schmidt and Timothy J. Hasken

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.

A look at what's in and what's out.


Data Breach Class Claims Survive Clapper

By Kristin Shepard

The Seventh Circuit finds that the plaintiffs' alleged future injuries satisfied Article III in Neiman Marcus data breach case.


Resolving the Dispute over Injunctive Relief Classes

By Steven N. Feldman and Ellen C. Kenney

A minority of courts have created a "public policy" exception to Article III standing.


Overbroad Class Actions: Here to Stay or Going Out of Style?

By Geoff Wyatt and Jordan Schwartz

While some courts agreed that no-injury class actions are not viable, a significant number have reached the opposite conclusion.


Under the Shady Grove of an Alabama Pine

By Matthew M.K. Stein

State laws that limit class actions in certain contexts are at risk of falling under the shade of Rule 23's axe.


Class Actions 101: Possible Amendments to Rule 23

By Robert J. Herrington

The proposed changes could have a great impact for years to come.


The Rule 23 Subcommittee Should Have Taken on Ascertainability

By Andrew Trask

The question has long been considered a vital case management tool.


Rule 23: Welcome to the Cy Pres Party

By Timothy G. Blood and Paula M. Roach

The doctrine's widespread use begs for guidance that only this Federal Rule can provide.


The Rule 23 Subcommittee's April 2015 Proposal on Issue Classes

By Paul G. Karlsgodt and Jacqueline K. Matthews

A starting point in the discussion.


Rule 23 Proposals Could Clarify Cy Pres Awards

By Gillian L. Wade

Plagued by ambiguity, the doctrine has become fertile ground for objectors.


Courts Take Notice of Class Action Settlement Processes

By Robert DeWitte

Federal district and appellate courts have started setting new, more stringent standards.


Is Digital the New Print in Class Action Notification Programs?

By Steven Weisbrot

The times, they are a-changin' . . . mostly.


Class Actions 101: Settlements

By Manfred Muecke

Learn the blueprint of what a plaintiff's counsel might expect to see at the time of settlement.


Much More Than "Housekeeping": Rule 23(c)(4) in Action

By Jonathan Uslaner

Some courts see the rule permitting issue classes as a powerful alternative to "complete" certification.


After Concepcion, Is Your "New" Arbitration Agreement Still Enforceable?

By E. Colin Thompson and Amy Reagan

Federal courts have announced that not all provisions will be.


Arbiter Does Not Decide Class Arbitration Status

By Catherine R. McLeod

Third Circuit is latest to rule class arbitration is for the court to decide.


Class Actions 101: Multidistrict Litigation Proceedings

By Gregory C. Cook

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

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

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

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

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

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

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

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

The decision will alter the framework of these cases in important ways.


Recent ERISA Decisions Favor Certification

By Mark G. Boyko

Courts have had little trouble finding commonality satisfied in these cases, even post-Dukes.


Defense Strategies for ERISA Class Actions

By Jeffrey D. Gardner

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

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

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 Oks

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

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

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

A summary of important cases and developments featured at the 2013 Class Action Landscape conference.

 

How I Began My Class Action Practice

By Kate R. Isley

One lawyer's journey from general litigation to class action expertise.


Trial Presentation Made Easy

By Steve D. Larson and Angel Falconer

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

What is the meaning of "trial by formula"?


Reflections from the 2013 National Institute on Class Actions

By Daniel R. Karon

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

The strategy may have received new life from Genesis Healthcare Corp. v. Symczyk.


Class Action Ethics in Standard Fire v. Knowles

By Catha Worthman

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

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

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

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

The exception can prevent a federal court from exercising jurisdiction over a class action case.


Defendants Missing Opportunities to Remove Class Actions to Federal Court

By Gregory G. Katsas and Jeffrey A. Mandell

The best reading of the removal provision allows defendants leeway to remove almost any class action.


Standard Fire v. Knowles: Changing the Burden of Proof of CAFA's Amount in Controversy

By Jordan Grotzinger

The Court may have changed the law regarding CAFA's $5 million jurisdictional minimum.


Forthcoming Book: The Class Action Fairness Act: Law and Strategy

By Gregory C. Cook

The committee dives into all aspects of the CAFA to craft the definitive book on the act.


CAFA Jurisdiction after Class-Certification Denial

By Matthew Stein and Aaron T. Morris

Courts appear to be reaching a consensus that denial does not destroy CAFA jurisdiction.


Class Actions 101: CAFA Diversity Jurisdiction at a Glance

By Kathryn Honecker

A handy flow chart to help you determine if your class action is subject to diversity jurisdiction under CAFA.


Supreme Court Reverses Class Certification in Comcast Corp. v. Behrend

By Andrew J. McGuinness

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

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

Defense counsel should attack class definitions early.


Circumventing the Ascertainability Roadblock

By Dawn M. Goulet

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

Courts should take care not to stretch this useful requirement beyond its intended purposes.


Why Class Definitions Matter

By Donald R. Frederico

They may be the key to unlocking the mysteries of class certification.


The Numbers Game: Dukes and Concepcion

By 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?


Battle for Vindication of Statutory Rights Post-Concepcion

By Scott T. Schutte, Thomas J. Sullivan, Gregory T. Fouts, and Ezra D. Church

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

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

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

Gone are the days when the class action was a uniquely American concept.


Class Actions 101: A New "Viral" Class Action?

By Casie Collignon and Paul Karlsgodt

Has social media created a new kind of "viral" or "virtual" lawsuit?


Ninth Circuit Reshapes California Consumer-Protection Law

By Elizabeth J. Cabraser, Jonathan D. Selbin, Jahan C. Sagafi, and Jason L. Lichtman

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

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.

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

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

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

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

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

Mazza will likely make it more difficult to certify consumer class actions for false advertising under California law, unless they involve a huge marketing campaign.


Trends in Food Labeling and Nutrition Class Actions

By David T. Biderman and Joren S. Bass

Suits have challenged the use of the term "natural" to describe food products when those products use some processed or synthetic ingredient.


The Case Against Counterclaim Class Actions

By Michael Walker

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

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.


The End of Federal Injunctions of State Certification?

By Stuart M. Feinblatt

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

Wal-Mart 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Exxon Valdez offers important lessons for the BP litigation, particularly in regard to class-action practice and procedure.


Third Circuit Again Rejects National Class-Action Settlement

By 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."

 

Ten Points from Dukes v. Wal-Mart Stores

By Daniel M. Hutchinson

The court held that this was no different from any other employment discrimination class action, so why should practitioners care?

 

Class Actions 101: MDL for Beginners

By Greg Cook and Jocelyn D. Larkin

What do you do when your class action is transferred and consolidated with other class actions?

 

Trends and Developments in Australian Class Actions

By S. Stuart Clark, Ross McInnes, Alexandra Kennedy-Breit

Where the Australian rules deviate from the American rules, they do so mostly in ways that favor class actions.


Global Class Actions: Lasting Peace or Ticking Time Bombs?

By 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

By Micael Montinari and Dorella Concadoro

Before Law 99/2009 was enacted, Italian law did not provide consumers with class action, despite several parliamentary attempts in recent years.


Ninth Circuit Approves Preemptive Denial of Class Certification

IBy Thomas Gilson and William Voit

In Vinole v. Countrywide Home Loans, the court has ruled class-action defendants may raise issue of class certification preemptively.


Survey of State Class Action Law: 2009 PDF

A Report of the State Laws Subcommittee of the Class Actions and Derivative Suits Committee


Courts Closely Scrutinize Attorney Fees Awards in Claims Made Settlement

By Ashley Vinson


Seven Steps to a Successful Class Action Settlement

By John B. Isbister, Todd B. Hilsee, and Carla A. Peak


Courts Deciding Class Certification Must Resolve "Dueling" Expert Testimony

By Margaret Lyle and Andrew Wirmani


Settlement of Class Action Claims is Enforceable Against Debtor in Bankruptcy

By Emily M. Yinger and Michael M. Smith


In Re Tobacco II Cases: A Paper Tiger?

By Fred B. Burnside


Federal Appeals Court Prohibits Rescission Class Actions Under Truth-In-Lending Act | PDF

By Ethan J. Brown and Jason J. Kim


Plaintiffs Lawyers Unleash a New Antitrust Theory in Auction-Rate Securities Complaints

By J. Will Eidson


Update on Subprime Class Actions and Derivative Suits Trends

By Janet C. Evans


How the Second Circuit’s IPO Opinion Will Make Class Certification More Expensive  | PDF

By Andrew Wilmar


Between the Lines of Rule 23: Classwise Proof and Administrative Deference  | PDF

By John H. Beisner


Engle v. Ligget Group—General Liability Findings Do Not Go Up In Smoke Despite a Decertification Ruling

By Stuart M. Feinblatt


Young Lawyers

Class Actions 101: We All Still Need Class Actions

By Jocelyn D. Larkin

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.


Class Actions 101: A Primer on Elevated Health Claims

By Kathryn Honecker and Eric Zard

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.


Class Actions 101: Amended Rules for MDL Take Effect

By Sabrina Strong, Matt Powers, and Justin Mates

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.


Class Actions 101: MDL for Beginners

By Greg Cook and Jocelyn D. Larkin

What do you do when your class action is transferred and consolidated with other class actions?


Class Actions 101: Can I Appeal this Class Certification Order?

By Jocelyn D. Larkin

Federal Rule of Civil Procedure 23(f) provides for the interlocutory appeal of class certification decisions.


Class Actions 101: How Do I Get this Class-Action Settlement Approved?

By Jocelyn D. Larkin

Settling a class action can be a complex and daunting task. Here's a quick primer for new lawyers.


Class Actions 101: Getting Appointed Class Counsel

By Jocelyn D. Larkin

This article addresses the basics of class counsel appointment, as well as the role that defense counsel has in this critical process.


Class Actions 101: When and How Do I Send Class Notice in Federal Class Actions?

By Jocelyn D. Larkin

This FAQ answers common questions about sending class notice in federal cases.