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Defendants should embrace, rather than fear, Tyson Foods

As my colleague, Katherine Kayatta, alluded to in her detailed post earlier this week, much of the initial commentary on the Supreme Court’s Tyson Foods decision has been to the effect that the decision may crack open the door to representative proof in class cases.  While plaintiffs will no doubt seek to use it that way, I don’t read the decision as providing a lot of meaningful support for such an effort.  And, indeed, I think defendants should embrace rather than fear the decision in many respects.

The Supreme Court’s Vindication of The In re Nexium Dissent

We have commented previously on several aspects of the Supreme Court’s recent decision in Tyson Foods.  One additional important aspect that deserves special attention in the First Circuit is the issue of how to cull uninjured class members prior to judgment, an issue a divided panel of the First Circuit addressed in In re Nexium last year. 

Think You Can Moot Plaintiff’s Claim With a Rule 68 Offer of Judgment? Think Again.

Today, in Campbell-Ewald Co. v. Gomez, a majority of the Supreme Court held, “in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force,” and does not negate the existence of a case and controversy for purposes of Article III jurisdiction. 

Comcast and Its Discontents

Practice area:

Last week I had the privilege of moderating a discussion at the American Bar Association’s 19th Annual National Institute on Class Actions.  The topic was the impact of Supreme Court class action decisions in the lower federal courts.  We explored the question whether federal appellate and district courts faithfully follow Supreme Court majority decisions in this arena, or whether some majority decisions are so unpopular that the lower courts navigate around them. 

CFPB Class Arbitration Proposal

On October 7th, the Consumer Financial Protection Bureau released proposals that, if adopted, would limit the use of arbitration provisions in consumer class actions against banks and other companies offering consumer finance products and services.  For more information, you can access our client alert here.

To Remove or Not to Remove in Massachusetts?

Practice area:

I am frequently asked whether a company sued in a putative class action in Massachusetts state court would be better off in federal court. Despite the common perception that class action defendants in any state are always better off in federal court, there has never been a simple answer to this question in Massachusetts, and it is even more difficult today than it was a few years ago.  One reason for the difficulty is that the quality of judges at both levels in Massachusetts is very high.  Unlike many jurisdictions…

To Remove or Not To Remove?

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When the Class Action Fairness Act was passed ten years ago, many businesses breathed a collective sigh of relief.  No longer would the plaintiffs’ bar be able to keep their cases in certain magnet jurisdictions (a/k/a “judicial hellholes”) known for looking favorably on class action lawsuits.  Many of the cases now would be removable to federal courts, where defendants felt that they had a better chance for fair treatment…