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. 

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.

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. 

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.

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.