Topic: Class Definition
Fail-Safe Classes Are Fundamental
Last month, the D.C. Circuit deepened a circuit split on the issue of fail-safe classes. The decision, In re White, 64 F.4th 302 (D.C. Cir. 2023), rejected a categorical rule against all fail-safe classes in favor of a case-by-case approach rooted in the text of the federal rules. With this ruling, the D.C. Circuit called […]
Kelly v. RealPage Inc.: The Third Circuit Lowers the “Heightened Standard” for Ascertainability
Rule 23 does not explicitly require that a court be able to determine who the members are before certifying a class. But judges have found implicit in the Rule a requirement that membership in a defined class be “ascertainable” or “definite.” For example, a court cannot address the numerosity requirement or provide effective relief to […]
Continuing to Troll the Ninth Circuit Class Certification Waters – Will the Supreme Court Join In?
Updated 8-16-22: StarKist and the other defendants filed their petition for certiorari in the Olean Wholesale Grocery case. A link to the Petition is here. In September 2021 and again in June of this year, we wrote about the Ninth Circuit’s opinion in Olean Wholesale Grocery v. Bumble Bee Foods and the court’s opinion following […]
Fishy Results for Class Action Defendants in the Ninth Circuit
Last September, we wrote about the Ninth Circuit’s opinion in Olean Wholesale Grocery v. Bumble Bee Foods and the court’s decision to rehear the case en banc. The en banc Ninth Circuit has now waded back into the class certification waters, with mixed results for defendants. While the en banc court tossed back the panel’s […]
Does Tyson’s “No Reasonable Juror” Standard Relieve Courts of the Obligation Rigorously To Analyze Expert Statistical Models at Class Certification?
In order to have a class certified, the plaintiffs have the burden of proving to the satisfaction of the court, “after a rigorous analysis,” that they comply with Rule 23—that is, that “there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 […]
How Many Uninjured Class Members is Too Many for Certification? The Waters Remain Murky.
The extent to which the presence of uninjured class members may defeat class certification remains unsettled. While, standing alone, the existence of some uninjured class members may not be not fatal (depending on the circuit), just how many is too many to satisfy the predominance requirement of Rule 23(b)(3) is still in flux. The Ninth […]
Court Certifies State Wage and Hour Claims Alongside FLSA Collective Claims
We have reported recently in this space on the certification of state wage and hour claims. Judge Gergel recently continued with this trend, certifying a class of Jamaican workers at the Kiawah Island Golf Resort who contend they weren’t paid enough by the Resort. See Moodie v. Kiawah Island Inn Co., LLC, No. 2:15-cv-1097 (D.S.C. […]
Fourth Circuit Upholds District Court’s Decision Not to Provide Pre-Certification Notice to Putative Class Members
In an “opt out” class action, sending notice to class members following class certification is not only routine, but required by due process. But does a district court have the right to order notice prior to a decision on class certification? In Gardener v. GMAC, Inc., No. 14-208 (4th Cir. Aug. 6, 2015), both the […]
Fourth Circuit Vacates Five Related Class Certifications
As the saying goes, one person’s trash is another person’s treasure. Judge Diaz issued a decision yesterday pertaining to five class actions concerning coalbed methane gas, long thought to be a “dangerous waste product,” but later discovered to be an energy resource and the source of a “distinct mineral estate.” The Fourth Circuit granted Rule […]
Fail-Safe Class Fails to Obtain Class Certification
Courts have understandably been reluctant to certify a class consisting of “persons who are injured by the defendant” or “individuals to whom the defendant is liable,” i.e., a class definition that depends on the outcome of the case. Such a “fail-safe” class is unfair to defendants: if defendants win the case, there is no class […]