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.
Supreme Court Permits Use of Statistical Evidence to Prove Classwide Liability, but Declines to Adopt Categorical Rule
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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.
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.
Certification Denials and Appellate Jurisdiction
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Yesterday the Supreme Court granted certiorari in the Microsoft Xbox case to decide whether federal courts of appeals have jurisdiction to review orders denying class certification after named plaintiffs voluntarily dismiss their individual claims with prejudice.
On December 31st, the First Circuit approved a class action settlement in a case involving claims of deceptive advertising. While breaking no new ground, the court’s decision provides useful guidance to parties negotiating a class settlement.
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.
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.
Building Products Defense Win
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Last week, the District of Massachusetts denied class certification in a building products case in which Pierce Atwood represented the seller of a composite decking product. You can find a brief summary of the decision here.
First Circuit Weighs In On Rule 68 Mootness Issue
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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.