In a decision issued on August 21, 2015, the First Circuit added its voice to the recent chorus of federal appellate courts holding that an unaccepted Rule 68 offer of judgment, served before a motion for class certification and offering the named plaintiff all the relief it could potentially recover on its individual claim, did not render the plaintiff's claim moot, and therefore did not moot the putative class action.

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.

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

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.

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...

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...

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...

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?

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...

In a November 30, 2013 post, we wrote about the District of Massachusetts' class certification decision in the antitrust case, In re Nexium.  There, the district court certified a class of c...