In his October 17th post, Josh Dunlap describes in detail the First Circuit’s landmark ruling in In re Asacol Antitrust Litigation concerning classes that include uninjured members. As Josh points out, although the district court had referred to ascertainability in its decision certifying the class, the First Circuit opinion reversing class certification did not, and for good reason. The case did not raise an ascertainability issue at all, but rather an issue of an overly broad class definition that encompassed significant numbers of uninjured class members (the court estimated 10 percent of potential class members had not been harmed because they would have purchased the branded drug even had the generic been allowed on the market). The ill-fated class was defined to include all purchasers of the defendant’s product, not just all such persons who would have purchased the generic alternative. Presumably, all purchasers of the drug could have been identified through prescription records, but plaintiffs failed to show that it
In Romulus v. CVS Pharmacy, Inc., five former Shift Supervisors brought a putative class action against CVS under the Massachusetts Wage Act, contending they were required to work through their unpaid breaks. Specifically, the plaintiffs alleged that they were required to remain in the store during their breaks when they were the only managerial employees on duty, were interrupted to handle transactions when necessary, and were nonetheless not paid for their time. In a 12-page opinion issued last week, United States District Judge Rya Zobel denied the plaintiffs’ request for class certification, finding they failed to satisfy the requirements of commonality and predominance under Rule 23.
Although CVS policy required a member of management to be present in the store at all times during operating hours, the policy also provided employees with one unpaid 30-minute meal break for each six or eight-hour shift, and instructed employees that, in the event their meal period was interrupted, they should notify their manager to
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
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
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).
Yesterday the Supreme Court granted certiorari in the Microsoft Xbox case to decide whether federal courts of appeals have jurisdiction to review orders denying class certification after named plaintiffs voluntarily dismiss their individual claims with prejudice.
Last week, the District of Massachusetts denied class certification in a building products case in which Pierce Atwood represented the seller of a composite decking product. You can find a brief summary of the decision here.
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.
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.