Class Certifications

January 26, 2017

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

Class Certifications, Consumer Class Actions

Authors:

Katherine S. Kayatta

Practice area:

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

October 11, 2016

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

Class Certifications, Third Circuit Decisions

Practice area:

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

January 16, 2016

Certification Denials and Appellate Jurisdiction

Class Certifications, Supreme Court

Practice area:

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.

October 02, 2015

Building Products Defense Win

Class Certifications, Consumer Class Actions

Practice area:

Class Action Defense

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.

August 13, 2015

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

Class Certifications

Practice area:

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.

August 06, 2015

Mulling Mullins

Class Certifications

Practice area:

The Seventh Circuit’s July 28th decision in Mullins v. Direct Digital, LLC has already created quite a stir.

April 27, 2015

A Byrd in the Hand

Class Certifications, Consumer Class Actions

Practice area:

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.

March 27, 2015

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

Class Certifications, Current Affairs, Supreme Court

Authors:

Mark B. Rosen

Practice area:

Class Action Defense

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…

January 26, 2015

In re Nexium Antitrust Litigation – A Mixed Prescription

Class Certifications, First Circuit Decisions

Authors:

Joshua D. Dunlap

Practice area:

Class Action Defense

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?

January 26, 2015

The effect of the Nexium decision on product defect class actions

Class Certifications, Consumer Class Actions, First Circuit Decisions

Authors:

Gavin G. McCarthy

Practice area:

Class Action Defense

The First Circuit’s split decision last week affirming class certification in the Nexium antitrust case is sure to receive much attention in product defect class actions. Over the last several years, a chief battleground in such actions has been the import of the fact that many of the people that bought the particular product – indeed, often an overwhelming majority of those people – had no problem at all with it after many years of use…

Pierce Atwood is pleased to present this class action blog with a focus on decisions of the state and federal courts within the boundaries of the First Circuit. With decades of national class action experience and offices in every First Circuit state, our goal is to serve as a primary resource for companies that face class litigation in Massachusetts, Maine, New Hampshire and Rhode Island, as well as to provide timely information about significant class action developments, strategies and trends on a national level.

Pierce Atwood’s Class Action Defense team has also started tracking filings and decisions in state and federal courts within the boundaries of the First Circuit in New England.

View our New England and First Circuit Class Action Tracker on our firm website.

Class Certifications

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

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

Certification Denials and Appellate Jurisdiction

Building Products Defense Win

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

Mulling Mullins

A Byrd in the Hand

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

In re Nexium Antitrust Litigation – A Mixed Prescription

The effect of the Nexium decision on product defect class actions

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