Class Certifications

Ninth Circuit Widens Circuit Split on Ascertainability in Briseno v. ConAgra Foods, Inc.

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On this blog, we have previously written about the growing split among the federal circuits concerning courts’ approaches to ascertainability. The Third Circuit, in a string of cases within the last five years, adopted a test requiring that class members must be identifiable without extensive and individualized fact-finding or “mini-trials,” and a plaintiff must present evidentiary support to demonstrate that a model it proposes to satisfy Rule 23’s requirements will be effective.  The Eleventh Circuit in Karhu v. Vital Pharmaceutical, Inc. similarly found that a plaintiff must establish an administratively feasible method by which class members can be identified.

In Mullins v. Direct Digital, LLC, the Seventh Circuit rejected the Third Circuit’s approach, finding that the Third Circuit’s test was a “heightened” requirement above and beyond Rule 23’s requirements.  The Seventh Circuit adopted a more lenient approach and looks only at whether a class can be ascertained by objective criteria, not whether there’s an administratively feasible way to identify

In a Groundbreaking Decision, Third Circuit Provides Framework for Evaluating Numerosity

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One of the least disputed elements of class certification is Rule 23(a)(1) numerosity, and so there is relatively little analysis from the courts about it. Last month, however, a divided panel of the Third Circuit provided a detailed analysis of the purposes of numerosity and the factors that district courts should employ in making numerosity determinations. In doing so, the court has broken new ground, and its decision will likely be cited by other courts and parties for years to come.

Plaintiffs in In re: Modafinil Antitrust Litigation, No. 15-3475, 2016 WL 4757793 (3d Cir. Sept. 13, 2016) were direct wholesale purchasers of Provigil, a wakefulness-promoting agent used to treat narcolepsy and other sleep disorders.  Defendant Cephalon owned the patent for modafinil and had FDA approval for the branded version.  Plaintiffs alleged an antitrust conspiracy between Cephalon and the four generic modafinil manufacturers for entering into reverse-payment settlements.  Plaintiffs also brought a monopoly claim against Cephalon.

The district court

First Circuit Denies Review in Building Products Case

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On October 2, 2015, we posted about the District of Massachusetts’ denial of class certification in a case in which we represent a building products company that sold allegedly defective decking.  We’re pleased to report that yesterday the First Circuit denied Plaintiffs’ petition for review of the class certification denial under Rule 23(f). 

Splitting the Difference: Recent Developments in Circuit Splits Over Class Action Lawsuits

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It has been a busy summer for federal appellate courts deciding class action issues.  Amidst all the sound and fury, this summer’s decisions so far highlight two splits among the federal circuits, while also diminishing if not eliminating a third split on an issue that is currently before SCOTUS.  Here is a brief summary of the ebbs and flows.

A Byrd in the Hand

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Recently, I had the privilege of moderating a panel in Boston discussing hot topics in class actions.  We had a terrific group of panelists, including three (besides myself) who represent defendants in class actions and one who represents plaintiffs.  This imbalance was attributable to the nature of the organization sponsoring the program as a business-oriented legal foundation.

OMNICARE: Supreme Court Clarifies Whether Statements of Opinion by Companies and their Executives are Actionable under the Federal Securities Laws

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This week the Supreme Court resolved a split among federal appellate courts over whether a statement of opinion in a company’s registration statement can be actionable under Section 11 of the Securities Act of 1933 if the speaker actually holds the stated opinion.  The high court ruled that such opinions are not actionable as an “untrue statement of material fact” simply because they turn out to be wrong.  But, taking another “midway position” on a divisive issue of securities class action litigation, the court left the door open…

In re Nexium Antitrust Litigation – A Mixed Prescription

As my colleague Don Frederico noted in his January 24th post, a divided First Circuit panel recently affirmed the district court’s class certification decision in In re Nexium Antitrust Litigation.  In so doing, the First Circuit weighed in on a critical issue that arises in many class cases:  is class certification proper where certain members of the class have not suffered injury?