The opioid MDL court (the Northern District of Ohio) recently denied class certification to plaintiffs seeking class certification as guardians of individual children diagnosed at birth with neonatal abstinence syndrome (NAS). The court noted that these children are sometimes referred to colloquially as “NAS babies.” The primary basis for the court’s denial of class certification was its determination that the proposed class failed the test of ascertainability as ... Keep Reading »
What’s Good for Trial Is Good for Class Certification: Fifth Circuit Rules That Daubert Applies at Class Certification Stage
Class discovery is inherently more limited than normal fact discovery for trial, and litigators understandably approach it in a more narrow fashion than they would trial discovery. The Fifth Circuit recently reminded class action litigators, however, that such tailoring should not be extended to expert discovery. In Prantil v. Arkema Inc., the court joined the Second, Seventh, and Eleventh Circuits in ruling that the Daubert analysis governing the admission of expert ... Keep Reading »
One Game, One Stadium: Eleventh Circuit Spikes Collateral Challenge to Tampa Bay Buccaneers Proposed Class Action Settlement
The Eleventh Circuit recently imparted an important message to the class action bar, and in particular to attorneys representing different named plaintiffs in competing class actions: there is “only one gatekeeper under Rule 23,” so any challenge to a proposed class action settlement should be presented to the district judge deciding whether to approve that settlement, not to a different judge by way of a collateral attack on the proposed settlement. Several years ... Keep Reading »
Article III and Rule 23: Do We Stand Together or All on Our Own?
On December 16, 2020, the Supreme Court granted certiorari in TransUnion LLC v. Ramirez to review the Ninth Circuit’s decision in Ramirez v. TransUnion LLC. Specifically, the Supreme Court granted certiorari for the following question: Whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered. The Supreme Court’s certiorari ... Keep Reading »
A Class Action Settlement With a Chocolate Company Melts Away: Eleventh Circuit Issues En Banc Decision on Article III Standing Principles
On October 28, 2020, the Eleventh Circuit Court of Appeals issued a split (7-3) en banc decision applying Spokeo principles to a claim that a vendor issued a receipt that included more digits from the plaintiff’s credit card than allowed by federal law. The en banc court ruled that the plaintiff did not establish Article III standing. As I reported two years ago after the panel’s decision, the basic background is as follows. This class action lawsuit alleged ... Keep Reading »
Sixth Circuit Rejects a Novel Concept: Certification of “Negotiation Class” in Opioid Multidistrict Litigation
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 »
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