Welcome to the inaugural edition of Classified Monthly: A Roundup of Class Action Decisions from Federal Appellate Courts. The Roundup normally will arrive in your inbox the first week of each month and will cover the previous month’s notable decisions. Because December was a light month for decisions, this inaugural edition covers both November and December. Second Circuit Krasner v. Cedar Trust Realty, Inc. – This decision interprets the ... Keep Reading »
Rough Waters in the Expert “Hot Tub” – Court Throws Class Expert Overboard in Google Play Store Litigation
One notable opportunity associated with antitrust class action practice is the expert “hot tub,” which generally speaking is an in-court, on-the-record “debate” between dueling economists, with the court, parties, and experts themselves (or some variation thereof) participating in questioning. Such proceedings are different from a traditional Daubert hearing, which involves questions from the attorneys and perhaps the district judge, but not direct questioning of one ... Keep Reading »
11th Circuit Stands Alone in Barring All Class Incentive Awards
Nearly three years after its decision in Johnson v. NPAS Solutions LLC, the Eleventh Circuit Court of Appeals remains the only circuit in the nation to categorically bar class representatives from receiving incentive awards. The U.S. Supreme Court recently denied a petition for certiorari to review the Eleventh Circuit’s first-in-the-nation decision in Johnson. Three other circuits, the First, Second, and Ninth Circuits, have explicitly rejected the Eleventh Circuit’s ... Keep Reading »
Class Action Survey: Companies Report Big Drop in COVID-19 Class Actions
The number of companies reporting an active, putative class action related to COVID-19 is down by almost half. Corporate counsel in this year’s 2023 Carlton Fields Class Action Survey report that workforce and regulatory issues, and employee activism, are taking the place of COVID-19-related issues on their docket. Of the remaining pandemic-related class actions, half are employment claims related to wage and hour, discrimination, and hybrid work policies. ... Keep Reading »
The Lack of Actual Injury Defense: The Landscape Since TransUnion
The 2023 Carlton Fields Class Action Survey found that the second most successful class action defense is the lack of any actual injury suffered by some or all of the class. It also found that this defense made a big jump in effectiveness from the previous year’s survey. Those findings may be related to the fact that just over two years ago, in TransUnion LLC v. Ramirez, the Supreme Court confirmed that “Article III does not give federal courts the power to order ... Keep Reading »
Class Action Survey: What Strategies Are Most Effective at Reducing Cost and Managing Risk in Class Action Litigation?
According to the 2023 Carlton Fields Class Action Survey, relying on trusted counsel is the most effective tool to reduce and control costs. Companies believe trusted counsel will make the right decisions without sacrificing the defense. Early case assessment rivals using trusted counsel as the most effective cost reduction tool, and the process can identify the points of strength and weakness in the defense and allow companies to deploy resources to the most effective ... Keep Reading »
Class Action Survey: Is AFA Use in Class Actions Increasing, Decreasing, or the Same as Last Year?
Less than half of companies defending class actions use alternative fee arrangements to manage costs, according to the 2023 Carlton Fields Class Action Survey. Companies reported that the factors contributing to the low usage of AFAs include increased turnover of in-house attorneys, law firm turnover, and more law firm resistance due to demand for legal services exceeding supply. ... Keep Reading »
Mark Cuban’s Cryptocurrency Conundrum: The Road to Filing Sanctions
Selecting a named plaintiff in a putative class action can be one of the most important, but overlooked, decisions that a plaintiff’s counsel makes. Picking the wrong plaintiff can lead to delay, dismissal of claims, denial of class certification in some circumstances, and motions for sanctions. The high-profile putative class action against Mark Cuban, the “Shark Tank” multimillionaire entrepreneur and owner of the Dallas Mavericks NBA team, illustrates all of these ... Keep Reading »
Class Action Survey: Corporate Counsel Reveal Their Thoughts on Class Action Waivers
Approximately four in every 10 companies use class action waivers in their contracts, according to the 2023 Carlton Fields Class Action Survey. Although these waivers can be a strong risk management tool, 57% of companies omit class action waivers for reasons that include perceived regulatory resistance or other barriers in some jurisdictions. Here is what some corporate counsel had to say about why they use class action waivers: "Yes, we don’t want them to be able ... Keep Reading »
Class Action Survey: Class Action Settlements Reach Record Low
The number of class action settlements dropped significantly, as it did in almost all areas of litigation. Class action settlements are the lowest on record. While 2021 saw a jump due to the resolution of older matters that had sat in 2020 during the early pandemic, in this year’s 2023 Carlton Fields Class Action Survey, the percentage of settlements in 2022 was the lowest in five years by a wide margin. The percentage of individual settlements, however, increased ... Keep Reading »
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