The Sixth Circuit recently addressed whether a novel negotiation class could be certified to facilitate possible future settlement negotiations in multidistrict litigation (MDL). The Sixth Circuit's decision arises from the opioid MDL in the Northern District of Ohio, on which we previously reported. In June 2019, 51 of the plaintiff cities and counties moved to certify a "negotiation class" under Federal Rule of Civil Procedure 23(b)(3). The plaintiffs sought to ... Keep Reading »
An Unauthorized Bounty: Eleventh Circuit Strikes Named Plaintiff Incentive Payment
This week, an Eleventh Circuit panel, in a 2-1 decision, reversed the approval of an incentive payment to the named plaintiff, calling the payment an unauthorized bounty. The case involved a Telephone Consumer Protection Act (TCPA) class action settlement that the majority characterized as being "just like so many others that have come before it." But this familiarity was "exactly the problem." According to the court, the district court "repeated several errors that, ... Keep Reading »
Authority Over Efficiency: District Court Lacks Authority To Rule On Arbitration Preemption Question In Remanded PAGA Action, Ninth Circuit Says
As a recent Ninth Circuit decision demonstrates, although substantial time, effort, and briefing may be spent litigating issues in a removed federal putative class action, parties should be prepared for a round two of their persuasion attempts in state court where the case is remanded to state court. In Echevarria v. Aerotek, Inc., a California district court remanded a representative action filed under California’s Private Attorneys General Act (PAGA) after finding ... Keep Reading »
Whither Objector Blackmail
The Seventh Circuit confronts “objector blackmail” and limits the extraction of “rents from the litigation process simply by showing up and objecting to consummation of the settlement.” On August 6, 2020, the Seventh Circuit Court of Appeals addressed the thorny “problem in class-action litigation known colloquially as ‘objector blackmail.’” The court confronted a situation in which three objectors filed an appeal after their objections were denied. But they dismissed ... Keep Reading »
Considerable Deference With a Caveat: Third Circuit Addresses Fee Awards
The Third Circuit Court of Appeals recently issued a decision regarding the fee award in the National Football League concussion injury litigation. The decision is non-precedential but still instructive. One takeaway is that appellate courts will show “considerable deference” to district court fee awards. The other takeaway, however, is that district courts still must provide enough of an explanation for appellate courts to meaningfully review the award. When they do ... Keep Reading »
CAFA: Ninth Circuit Affirms District Court’s Sua Sponte Invocation and Application of Discretionary Home State Exception
On May 13, 2020, the Ninth Circuit Court of Appeals affirmed the remand of a wage and hour class action lawsuit filed in California state court based on the home state exception to the Class Action Fairness Act (CAFA). In its opinion affirming the remand, the Ninth Circuit explored both parts of the home state exception. Defendant West Marine removed the lawsuit to federal court under CAFA. There was no dispute that West Marine’s CAFA removal satisfied the statutory ... Keep Reading »
COVID-19 Insurance Coverage Class Actions
Over the last month, there have been numerous lawsuits across the country by policyholders seeking insurance coverage for losses they claim are resulting from the COVID-19 pandemic. In the last two weeks, the new trend has been to file these claims as class actions. Several of the nation’s top plaintiff-side class action law firms have filed class action lawsuits seeking coverage for nationwide classes of policyholders. These cases have been filed all over the country ... Keep Reading »
More Alike Than Different: Sixth Circuit Instructs MDL Court to Find Efficiencies Within Federal Rules Governing Individual Cases
Judges presiding over multidistrict litigations, known as MDLs, must walk a tightrope between individual and collective needs. As the Sixth Circuit reminded us in a recent decision, In re National Prescription Opiate Litigation, this can be an especially challenging balancing act for a district judge. On the one hand, MDL courts operate within the Federal Rules of Civil Procedure, designed largely to adjudicate individual cases. On the other hand, an MDL exists so that ... Keep Reading »
The Litigation Curve Does Not Flatten: COVID-19 Class Action Filings Approach 300
As we first reported in early April, the COVID-19 pandemic has resulted in a class action feeding frenzy among the plaintiffs’ class action bar. COVID-19 class action case filings have risen to more than 280 as of May 4, 2020. As the litigation trend comes into focus, three industries have emerged as the largest targets: insurers of businesses suffering losses due to shutdowns and curtailments; colleges and universities whose students are demanding refunds of tuition and ... Keep Reading »
Class Actions Against Colleges and Universities Demanding Reimbursement of Tuition and Fees: What Schools Need to Know to Be Prepared and Are Independent Schools Next?
In recent weeks, at least 42 putative class action lawsuits have been filed against colleges and universities across the country related to campus shutdowns and the move to online education necessitated by the COVID-19 pandemic. More lawsuits are being filed on a weekly basis. This litigation is a concerning development for higher education already struggling to respond to the pandemic. These lawsuits should also concern independent schools because they too provide ... Keep Reading »
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