Bell v. Brockett is an unusual case in several respects. Most notably, the Fourth Circuit affirmed certification of a defendant class, despite acknowledging that defendant class actions are "so rare they have been compared to unicorns." The court not only acknowledged the rarity of defendant class actions but also commented on their "inherent risks." Indeed, in a delightful footnote the court explained that although both unicorns and defendant class actions are rare, the ... Keep Reading »
Search Results for: rule 23
Question of Consent Turns Putative TCPA Fax Class Action Into Junk
A recent decision by a Connecticut district court reiterates that the issue of consent may foreclose class certification in Telephone Consumer Protection Act (TCPA) junk fax cases. The action was one of several putative class actions brought by Gorss Motels Inc. against suppliers to Wyndham hotels and its various franchisees. Gorss was a former corporate owner of a Wyndham franchise hotel. Defendant Otis Elevator Co. had a contract with a subsidiary of Wyndham as an ... Keep Reading »
Belch! Ocean Spray Price Premium Damages Model Passes Comcast Scrutiny
The Southern District of California certified a food labeling class against Ocean Spray Cranberries Inc. based in part upon a price premium damages model developed by an aptly named Dr. Belch. The plaintiff, a self-proclaimed "health coach" and "label guru," alleged Ocean Spray misrepresented that many of its juice products contained no artificial flavors when in fact they contained malic and fumaric acids, synthetic chemicals that simulate the advertised flavors. She ... Keep Reading »
Third Circuit Ascertainability Requirement Satisfied in FDCPA Class Against Law Firm
Our prior blogs have discussed the Third Circuit’s “rigorous” ascertainability requirement for 23(b)(3) classes here and here. We have also explored how district courts in the Circuit, such as the Eastern District of Pennsylvania, have denied certification in reliance on that heightened standard. A recent E.D. Pa. opinion demonstrates that all is not lost for putative Third Circuit class actions when the proposed class is readily ascertainable based on objective criteria ... Keep Reading »
The Bitter and the Sweet
On October 3, the Eleventh Circuit Court of Appeals affirmed the district court’s approval of a class settlement, an award of attorney’s fees to class counsel, and the provision of an incentive award for the class representative. The court affirmed in the face of objections to the class representative’s Article III standing, the notice pursuant to Rule 23(h), the award of attorney’s fees, and the incentive award to the class representative. The basic background is as ... Keep Reading »
No Injury, No Problem?: The First Circuit Weighs in on Certification Where Absent Class Members Lack Harm
In Tyson Foods, the Supreme Court declined to resolve the issue of whether a class may be certified if it contains members who were not injured and have no legal right to damages. Dealing with this increasingly common issue in class action litigation, the First Circuit recently summarized circuit precedent on the issue — and ultimately reversed a district court decision certifying a class that contained class members who had not suffered any injury. The plaintiffs filed ... Keep Reading »
Inexperienced Class Counsel Stalls Class Certification While Defendants Attempt to Employ EEOC Conciliation Agreement Against Class
The Northern District of Illinois recently denied a motion for class certification based largely on the inexperience of class counsel, and simultaneously denied the defendant’s motion to deny class certification. The plaintiffs sought to represent a class of all present and former female employees who worked at a Chicago area Ford Motor Company facility beginning in 2012. Plaintiffs filed a 123-count complaint alleging a wide range of claims, including sexual harassment, ... Keep Reading »
Reservation Canceled! Court Strikes Class Allegations Against American Airlines
The Northern District of Illinois recently granted defendant American Airlines’ motion to strike class allegations in a passenger’s breach of contract suit brought after American cancelled plaintiff’s flight reservation when he attempted to check in less than an hour before the scheduled departure time. The court found it was clear from the pleadings that plaintiff’s proposed nationwide class could not meet the predominance requirement of Rule 23(b)(3). In particular, ... Keep Reading »
Tenth Circuit Finds Plaintiffs’ Settle and Dismiss Strategy Unappealing
Following Supreme Court precedent, the Tenth Circuit recently held that plaintiffs’ settlement and voluntary dismissal of their claims did not transform the court’s interlocutory order denying class certification into a final, appealable order under 28 U.S.C. § 1291. Plaintiff trusts brought a putative class action against an energy company, alleging various claims related to royalty interests under gas leases, and sought to certify a class. The district court denied ... Keep Reading »
Class Certification Denied in ‘Junk Fax’ Case in Electronic Age
On September 5, Judge Dlott (Southern District of Ohio) denied plaintiff’s motion for class certification in a case involving the “junk fax” provision of the Telephone Consumer Protection Act of 1991. Perhaps perplexed that such cases still arise, the district court explained that, “[a]lthough it seems odd that the problem persists in the electronic age, the ‘junk fax’ provision attempts to curb the inundation of unwanted faxes.” In this case, there was no dispute that ... Keep Reading »
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