Jurisdiction

  • May 06, 2022

Is It Time to Update Mass. R. Civ. P. 23?

Class Actions, Jurisdiction, Massachusetts Decisions
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Over the past 25 years, I have had the good fortune of getting to know and working with both plaintiff and defendant class action lawyers from many states, and to teach class action practice in dozens of local and national CLE programs and at a great law school. I also have represented clients in class action cases in many jurisdictions, both state and federal, including the state courts of Massachusetts. All of these experiences have given me the opportunity over an extended period to learn and reflect upon the varieties of class action practice.

When I speak with my counterparts from other states, one thing I tell them invariably makes their jaws drop — namely, that Massachusetts’ version of Rule 23 does not allow opt outs. I have not done an exhaustive review of all state class action rules, but based on my experience and my interactions with out-of-state class action lawyers, we seem to be the only state that does not permit class members to

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  • November 06, 2018

In re Asacol Antitrust Litigation: Article III Standing in Multi-State Class Actions

Antitrust Class Actions, Class Certifications, First Circuit Decisions, Jurisdiction
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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

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  • March 30, 2018

Campbell-Ewald in Massachusetts

Consumer Class Actions, Jurisdiction, Massachusetts Decisions
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On March 6th, in Silva v. Todisco Services, Inc., Judge Kenneth Salinger, sitting in the Business Litigation Session of the Massachusetts Superior Court, held that a defendant’s tendering of the maximum amount of damages a plaintiff might recover in a putative class action did not moot either the plaintiff’s individual claims or the claims of putative class members. In rejecting defendant’s “pick-off” attempt, Judge Salinger aligned Massachusetts state court practice with federal case law, including the United States Supreme Court’s decision in Campbell-Ewald v. Gomez, and subsequent federal decisions. His reasons for doing so, while perhaps consistent with Massachusetts precedent, were somewhat different from the federal court rationale and could have unintended consequences.

In Campbell-Ewald, the Supreme Court held that an unaccepted offer of judgment does not moot a named plaintiff’s claim, and therefore cannot prevent a putative class action from moving forward. The Court based its decision on principles of contract law

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  • February 14, 2018

Federal District Courts Tackle Application of Bristol-Myers Squibb Co. v. Superior Court to Class Actions

Jurisdiction
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In June 2017, we wrote about the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) and how it would likely affect attempts by plaintiffs to pursue multi-state or nationwide class actions.  As predicted, the case law is rapidly developing in the district courts, where, in reliance on Bristol-Myers’ holding, defendants challenge courts’ jurisdiction in cases where non-resident plaintiffs assert claims against non-resident defendants not subject to general jurisdiction.

We expect the post-Bristol-Myers landscape will continue to evolve and at some point, the various Circuit Courts of Appeals will begin weighing in.  Until then, below we provide a brief overview of recent notable district court decisions on this topic.  As this overview shows, the majority of courts have held that under Bristol-Myers, they do not have personal jurisdiction over the non-resident defendants with regard to claims brought by the non-resident plaintiffs.

Courts have taken

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  • July 03, 2017

Justice Thomas’ Concurring Opinion in Microsoft Corp. v. Baker: A Useful Reminder

Appeals, Jurisdiction, Supreme Court
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On June 12th, the Supreme Court issued its unsurprising decision in Microsoft Corp. v. Baker, addressing a relatively recent twist concerning the appealability of orders denying class certification.  The case resulted in unanimous agreement among the eight Justices who participated in it (Justice Gorsuch did not participate), but a five-three split among them as to whether the case should be decided on statutory grounds (supported by the majority) or constitutional grounds (supported by the minority).  In the course of the debate over the decision’s rationale, Justice Thomas penned a paragraph that serves as a useful reminder concerning the nature of putative class litigation.

Of all the Court’s class certification cases, this must have been one of the easiest to decide.  Put simply, the district court struck plaintiffs’ class allegations from the complaint, based on a class certification denial in an earlier case raising the same claims.  After plaintiffs unsuccessfully petitioned the Ninth Circuit for interlocutory review under Rule 23(f), they were left with

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  • June 26, 2017

Multi-State Class Actions After the Supreme Court’s Decision in Bristol-Myers Squibb Co. v. Superior Court

Jurisdiction, Supreme Court
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On June 19th, the Supreme Court issued a decision that could have important consequences for multi-state class actions.  In Bristol-Myers Squibb Co. v. Superior Court, the Court addressed the question whether a California state court could exercise personal jurisdiction over the claims of nonresident plaintiffs who had joined a group of California plaintiffs in suing Bristol-Myers Squibb (“BMS”) for alleged adverse health effects from its drug, Plavix.  As a matter of 14th Amendment due process, the Court held that the nonresidents’ claims should have been dismissed for lack of personal jurisdiction.

Initially, the nonresident plaintiffs succeeded in the state courts in arguing that the courts could exercise general jurisdiction over BMS, but the California Court of Appeal reversed itself after SCOTUS issued its 2014 decision in Daimler Ag v. Bauman (holding that a court could not assert general jurisdiction over a non-resident corporate defendant solely because it engaged “in a substantial, continuous and systematic course of business”

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