Maine Appeals
First Class Defense
December 07, 2017

Ascertainability & In re Nexium – The Side-Effects Continue
Antitrust Class Actions, First Circuit Decisions, US District Court - Mass, US District Court - New Hampshire
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As various contributors to this blog have noted (here, here, and here), a divided panel of the First Circuit adopted a “loose” approach to the ascertainability requirement in In re Nexium Antitrust Litigation.  Specifically, while acknowledging that “the definition of [a] class must be ‘definite,’” the majority concluded that this requirement could be satisfied by […]

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November 14, 2017

Consumer Financial Services Arbitration: Another Perspective
Arbitration, Class Arbitration, Consumer Class Actions, Legislation
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Much has been said and written about Congress’ rejection of the CFPB proposal to ban class action waivers in arbitration agreements between consumers and financial services companies. One of the most frequent statements I have heard from some politicians in the media is that Congress has voted to ban class actions against banks. As is […]

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August 02, 2017

When you get what you pay for: the First Circuit examines the injury requirement under Massachusetts chapter 93A.
Consumer Class Actions, First Circuit Decisions
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On July 26th, the First Circuit issued rulings in putative consumer class actions brought by the same attorney against two national department store chains, challenging their allegedly deceptive use of comparative pricing on their in-store price tags.  In the first case, brought against Nordstrom, the court engaged in a careful review of a series of […]

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July 18, 2017

Romulus v. CVS Pharmacy, Inc.: Meal Periods, Ascertainability, and the Importance of Removal.
Class Certifications, Employment Class Actions, US District Court - Mass
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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 […]

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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 […]

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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 […]

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April 19, 2017

A New Justice: Any Change For Class Actions?
Current Affairs, Supreme Court
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This week, Justice Gorsuch donned his black robes and began hearing arguments alongside his new colleagues on the Supreme Court.  With his elevation to the high court, Justice Gorsuch assumes many new responsibilities.  Some, of the lighter kind, include opening the door during conferences with his colleagues and assuming oversight of the Court’s cafeteria menu.  […]

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April 05, 2017

Proposed Changes to Rule 23: Electronic Notice and Efforts to Curb Abuses in Settlement Objection Process
Class Action Settlements, Class Notice
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On this blog, we previously wrote about the Fairness in Class Action Litigation Act of 2017, and identified its potential to bring significant changes to class action practice. That Act was passed by the House on March 9, 2017, based on a 220-201 vote, split almost entirely along party lines, and has now advanced to […]

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March 15, 2017

CAFA, PART II?
Class Action Fairness Act
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In February 2017, Representative Goodlatte introduced the Fairness in Class Action Litigation Act of 2017. The Act, as with its 2015 predecessor, covers a lot of ground. It permits certification of damages classes only where “each proposed class member suffered the same type and scope of injury.” It precludes certain conflicts of interest between class […]

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January 26, 2017

Ninth Circuit Widens Circuit Split on Ascertainability in Briseno v. ConAgra Foods, Inc.
Class Certifications, Consumer Class Actions
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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 […]

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