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 […]

In 2014, we posted about the Massachusetts Supreme Judicial Court’s decision in Bellermann v. Fitchburg Gas & Electric Light Co.  In that case, plaintiffs sought relief under the Massachusetts consumer protection statute, G.L. c. 93A, because of the defendant utility’s alleged failure properly to prepare and plan for a major winter storm, and its allegedly […]

Chief Judge Saris and Judge Sorokin of the District of Massachusetts recently tackled questions left unanswered by the Supreme Court’s opinion earlier this year in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (see Don Frederico’s prior post for a full discussion of Campbell-Ewald). In South Orange Chiropractic Center, LLC v. Cayan LLC, 2016 […]

Class action practitioners have been closely watching Spokeo, Inc. v. Robins, a case before the Supreme Court on appeal from the Ninth Circuit.  Spokeo presented the Court with the opportunity to decide whether a plaintiff may maintain a class action absent any injury other than the violation of a statutory right.

The CFPB today released a proposed rule that would ban consumer financial services providers such as banks, credit card issuers, and small-dollar lenders from using mandatory arbitration clauses to prohibit consumers from filing or joining class actions against them. Please click here for further analysis and potential impacts of the proposed rule.

The Class Action Fairness Act of 2005 (CAFA) was intended to make it easier for defendants to remove class action lawsuits from state court to federal court.  For example, CAFA introduced the concept of minimal as opposed to complete diversity, and waived the absolute one year deadline normally applicable to removal petitions as well as the requirement that all defendants join the petition.  It remains the removing defendant’s burden...

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.

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. 

In Tyson Foods, Inc. v. Bouaphakeo, et al., the United States Supreme Court affirmed a judgment in favor of a class of Tyson employees, holding that averaged statistical analysis or so-called “representative evidence” presented by the class’s experts properly established classwide liability in the case.  The Court rejected, however, the requests of all parties and amici curiae to adopt a broad and categorical rule governing the use of representative and statistical evidence in class actions, stating that...

No one has done more to shape class action law than Justice Antonin Scalia.  His unexpected passing, even while important class action cases remain under advisement, will spark a renewed push to tilt class action jurisprudence to a more plaintiff-friendly bent.