Class Actions Brief Blog

A recent North Carolina Supreme Court decision, Jackson v. Home Depot U.S.A. Inc., 919 S.E.2d 199 (N.C. 2025), highlights the importance of choice of law issues underlying putative class actions.

Plaintiff bought a home water treatment system from Carolina Water Systems while the company was offering rebates if customers made referrals. Carolina Water Systems was the authorized provider for these treatment systems through Home Depot in North and South Carolina. After plaintiff was sued by his credit card company to collect the amount owed for his system installation, plaintiff ...

Earlier this month, the Supreme Court declined to hear an appeal from the Ninth Circuit’s decision in Lytle v. Nutramax Laboratories Inc. affirming the certification of a class of owners of elderly dogs, alleging that the Cosequin supplement sold for canine joint health and mobility has no such benefit. That decision threatens to turn the circuit split over the standard for expert opinion at class certification into a major rift by permitting plaintiffs in the Ninth Circuit to rely on an expert model for which the expert “has not collected all of the necessary data to perform his ...

On January 24, 2025, the United States Supreme Court agreed to answer a question that has divided the circuits: Can a federal court certify a class containing members who lack any Article III injury? In Davis v. Laboratory Corporation of America Holdings, a trial court in California certified a damages and injunctive relief class comprised of blind patients who—unliked sighted individuals—could not use LabCorp’s kiosks to access testing services. It did not matter to the trial court or to the Ninth Circuit that the class members had the option to bypass LabCorp’s kiosks ...

Glue is an object commonly found in schools, yet the “glue” that binds class action commonality appears to be a scarce commodity for students with disabilities and their parents. In September 2024, the Fourth Circuit decided that students with disabilities in Kanawha County, West Virginia, had suffered harms too individualized to be addressed together as a class.^[1]

This ruling reversed the trial court’s class certification decision, a ruling by Judge Irene Berger (S.D.W.Va.), who had found commonality among the students in that all had allegedly experienced harm through ...

Federal Rule of Civil Procedure 23(f) gives the court of appeals discretion to review a narrow class of interlocutory orders: those granting or denying class certification. But it is sometimes possible for other orders to come along for the ride, as demonstrated by the Fourth Circuit’s recent decision in Elegant Massage LLC v. State Farm Mutual Automobile Insurance Company, 95 F.4th 181 (4th Cir. 2024). The court’s use of pendent appellate jurisdiction could expand the opportunities for interlocutory review of merits-related rulings in class action litigation.

A Class for ...

Life has its disappointments. Sometimes, you think you’ve won a free car, but it turns out that you’ve won only a couple of dollars. And sometimes, you think that an appellate court will clarify a thorny issue of class-action law, but the court leaves that issue unresolved. These scenarios coalesced in a recent decision from the North Carolina Supreme Court: Surgeon v. TKO Shelby LLC.

The Surgeon case arose when hundreds of people allegedly suffered the first disappointment above. A car dealership mailed out flyers that advertised a scratch-off contest. According to the ...

One of the key issues at class certification is whether plaintiffs have met their burden to establish commonality and predominance: that “questions of law or fact common to class members predominate over any questions affecting only individual members,” as required by Fed. R. Civ. P. 23(b)(3). Plaintiffs often rely on an expert model purporting to show that injury and damages can be determined classwide, so those issues do not defeat predominance.

A recent series of cases, most involving the insurance value of cars totaled in accidents, provide a useful reminder that, when a ...

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 for a return to the fundamentals of Rule 23 in the analysis of fail-safe classes.

A fail-safe class is one in which membership can’t be determined until the case is resolved on the merits. Whether someone qualifies as a member of a fail-safe class depends on whether they ...

Class actions have long been difficult to certify in fraud cases.  But a recent district court decision in California takes a new approach that would make class certification in fraud cases the norm.  That decision is now on appeal to the Ninth Circuit, where Robinson Bradshaw filed an amicus brief on behalf of the Chamber of Commerce of the United States of America.  Our brief highlights the flaws in the district court’s decision and the damage that its approach to class certification would inflict on American businesses and the national economy.  This post summarizes our brief.

In DZ ...

A leading feature of the Supreme Court’s decision in Wal-Mart Stores Inc. v. Dukes is the “rigorous scrutiny” the trial court must apply to determine whether the evidence plaintiffs offer to support class certification meets the requirements of Rule 23. Following the Supreme Court’s decisions in Wal-Mart and Comcast, “[i]t is now indisputably the role of the district court to scrutinize the evidence before granting certification, even when doing so ‘requires inquiry into the merits of the claim.’” Rail Freight, 725 F.3d at 253 (D.C. Cir. 2013) (quoting Comcast ...

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 (2011) (internal quote omitted).  One of the findings required by Rule 23 is that common issues predominate, as discussed in last month’s blog post by Travis Hinman.  Predominance as to damages requires a showing that the members of a proposed class were ...

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 Circuit waded into this debate earlier this year in Olean Wholesale Grocery Coop. Inc. v. Bumble Bee Foods LLC. Before the case made its way to the appellate court, the U.S. District Court for the Southern District of California certified three classes ...

We’ve commented before in this space about the ongoing debate concerning the relationship between the predominance requirement of Rule 23(b)(3) and “issue certification” under Rule 23(c)(4). Yesterday, the Sixth Circuit weighed in on the subject. See Martin v. Behr Dayton Thermal Prods., No. 17-3663 (6th Cir. July 16, 2018). The case related to a “Superfund site” comprising a “low income area” of some 540 proprieties outside of Dayton, Ohio. Typical of the languid track of most class action actions, the Sixth Circuit addressed the district court’s decision on an ...

Class actions don’t work if the class representative has a conflict with the class he or she purportedly represents. As the United States Supreme Court noted over 70 years ago, “a selection of representatives for purposes of litigation, whose substantial interests are not necessarily or even probably the same as those whom they are deemed to represent, does not afford that protection to absent parties which due process requires.” Hansberry v. Lee, 311 U.S. 32, 45 (1940). A decision this week from Judge Higginson out of the Fifth Circuit provides an interesting commentary on ...

The nomination of Tenth Circuit Judge Neil M. Gorsuch for the Supreme Court has jurists and reporters forecasting how, if confirmed, he will rule in cases raising “hot” Constitutional issues. The “hot” question for those of us who litigate class actions is how Justice Gorsuch would engage the next landmark class action, especially since he would replace Justice Antonin Scalia on the Court, author of two of the most significant class action opinions in recent years, Comcast Corp. v. Behrend and Wal-Mart Stores v. Dukes.

We will be examining some of Judge Gorsuch’s ...

Rep. Bob Goodlatte (R-Va.), the Chairman of the House Judiciary Committee, recently introduced a bill that would make significant changes to federal class action litigation. The Fairness in Class Action Litigation Act of 2017 (H.R. 985) states that it is intended to allow prompt recoveries to plaintiffs with legitimate claims and “diminish abuses in class action and mass tort litigation that are undermining the integrity of the U.S. legal system.”

In its current form, the draft bill would likely eclipse the 2005 passage of the Class Action Fairness Act as the most significant ...

As we explained in Part 1 of our analysis of Fisher v. Flue-Cured Tobacco Cooperative Stabilization Corporation, the North Carolina Supreme Court recently exercised jurisdiction over an interlocutory appeal and affirmed the certification of a class of hundreds of thousands of current and former tobacco farmers. In the first part, we discussed the Court’s jurisdictional analysis and North Carolina’s unique approach to interlocutory appeals of class certification orders. In this post, we discuss the Court’s substantive analysis of the class certification issues.

The ...

Failure to give the requisite 60-days’ notice to a group of employees under the WARN Act seems like it implicates a quintessential common question for adjudication under Rule 23. But in Hutson v. CAH Acquisition Company 10, LLC, 1:15CV742 (M.D.N.C. Aug. 15, 2016), Defendant gamely tried to suggest that there were factual issues that must be resolved as to each plaintiff. Admittedly, the case was a bit more complicated than the typical WARN Act case – the closing of the employer’s facility was postponed, and there apparently was confusion about just what the employer explained to ...

In February 2014, the Panel on Multidistrict Litigation transferred a series of cases against Pella Corporation, a window manufacturer, to the District of South Carolina. Judge Norton dismissed most of the claims, but preserved claims alleging breach of express warranty with respect to Pella’s failure to repair or replace windows under its limited warranty. The windows, so plaintiffs alleged, leaked, and the plaintiffs sought certification of a class consisting of owners of structures in New York from 1997 through 2007 who had made a claim under Pella’s Limited Warranty. The ...

Yesterday, the Supreme Court issued its opinion in Tyson Foods, Inc. v. Bouaphakeo, voting 6 – 2 to uphold a jury verdict in favor of employees in a donning and doffing action. The class of employees, certified under Iowa Wage and Hour law pursuant to Rule 23, and as a collective action under the Fair Labor Standards Act, worked in the kill, cut and retrim departments of a pork processing plant. They were required to use protective gear and complained that they weren’t paid for the time spent to put on and take off the necessary protection equipment. Because Tyson didn’t keep records ...

Since the Supreme Court’s decision in Wal-Mart, courts have been struggling to breathe life into Rule 23(b)(2) when monetary damages are a possibility. Wal-Mart held that back pay constituted the kind of individualized monetary relief that was hardly “incidental” to claims of injunctive relief, upon which (b)(2) classes are essentially founded. In Berry v. LexisNexis Risk and Information Analytics Group Inc., No. 14-2006 (4th Cir. Dec. 4, 2015), the Fourth Circuit grappled with this issue, albeit in the context of a nonmonetary (b)(2) settlement that, by its terms, continued to allow class members to pursue certain claims for monetary relief.

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. Aug. 24, 2015). Defendants argued that the differences in class members were such that the court would have to certify six classes, but the Court rejected that notion, saying the argument stemmed from a “novel proposition that Plaintiffs must propose [a ...

Yesterday, the United States Supreme Court granted Tyson Foods’ petition for certiorari to review the Eighth Circuit’s opinion upholding class certification in a donning and doffing case. A class of Tyson employees brought the suit seeking compensation for time they spent putting on (donning) or removing (doffing) protective equipment and clothing. The decision promises to be most important clarification yet of the scope of the Supreme Court’s Wal-Mart Stores, Inc. v. Dukes decision. The two questions presented for certiorari were: (1) whether differences in ...

The Fourth Circuit today handed down its second decision in Brown v. Nucor, a split decision from 2009. In the initial decision, over Judge Agee’s dissent, the panel majority had reversed the district court’s denial of class certification. On remand, the district court decided to revisit the certification decision in light of Wal-Mart v. Dukes, and decertified a class consisting of individuals who had not been promoted to supervisory positions. In a 154-page opinion, a split panel again reversed. Judge Gregory again wrote the majority decision, joined by Judge Keenan. Judge ...

We all know that an employer’s decision to label certain individuals as “independent contractors” is not dispositive of the legal issue whether they are, in actuality, “employees.” And that issue is complicated further because the definition of “employee” varies from statute to statute. But courts have struggled in deciding whether employment status in a misclassification case can be decided on a class-wide basis. On the one hand, the legal issue is the same: are these folks employees or aren’t they? But, as Justice Scalia cautioned in Wal-Mart, merely stating ...

On March 3, 2015, Judge Michael O’Foghludha, a Rule 2.1 judge appointed to hear the controversy, granted a motion to certify a class of state magistrates serving between 2009 and 2014. Adams v. State, No. 14-CVS-15027 (Wake Cnty. N.C. Super. Ct. Mar. 3, 2015). The principal common issues appear to be whether a statutory “step increase” in pay became a part of the individual employment contracts of the magistrates and whether the State could suspend these step increases without incurring liability. The certification order affects approximately 650 magistrates.

In its ...

Although Rule 23(a) provides that members of a class may “sue or be sued,” a defendant class is quite the rarity. But the court-appointed receiver of Rex Venture Group LLC d/b/a www.ZeekRewards.com was successful in persuading Judge Mullen to certify a defendant class comprised of “Net Winners” in a Ponzi scheme in which over 700,000 participants lost over $700 million. See Bell v. Disner, No. 3:14-cv-91 (W.D.N.C. Feb. 10, 2015). Over $238 million in net winnings, according to the receiver, were obtained by 9,400 individuals from the net losers’ money. Judge Mullen found ...

The North Carolina Business Court has seemed to settle upon a methodology in approving “disclosure only” settlements in merger cases. Following Judge Gale’s decision in In re Harris Teeter Merger Litigation, Judge Bledsoe certified a non-opt-out settlement class last week in In re PokerTek Merger Litigation, No. 14-CVS-105679 (Jan. 22, 2015), observing that such classes have become the norm both in Business Court and in Delaware. The key to such certification, as Judge Bledsoe observed, was that the case involve predominantly “equitable claims,” rather than claims ...

As we discussed last year, a bona fide circuit split exists with respect to “issue certification.” We observed that the Fourth Circuit’s guidance on this issue is foggy: As Judge Dever has noted, “although the Fourth Circuit appears to address this issue in Gunnells v. Healthplan Services Inc., 348 F.3d 417 (4th Cir. 2003), its analysis is unclear.”

In his recent order denying class certification in Parker v. Asbestos Processing LLC, No. 0:11-cv-01800 (D.S.C. Jan. 8, 2015), Judge Joseph F. Anderson joined the fray, providing an interesting twist on the subject and the ...

The North Carolina Business Court today rebuffed an attempt by “self-pay” patients receiving emergency treatment to challenge the hospital’s charges on a class-wide basis. In Hefner et al. v. Mission Hospital Inc., et al., No. 12-CVS-3088 (N.C. Business Court Dec. 8, 2014), Judge Gale found that there “is a panoply of potential issues factoring into the ultimate questions of reasonableness [of patient charges] because every patient treated at Mission received different services and was billed for different amounts.” A key consideration in deciding whether to ...

A recurrent question under Rule 23 is whether and when individual issues pertaining to damages can engulf otherwise common questions and make class litigation unwieldy. The dilemma is clear: On the one hand, doesn’t it make sense to try the common liability issue once rather than over and over again? On the other hand, trying a bunch of individual damages issues, that differ from plaintiff to plaintiff, doesn’t sound either like class litigation or a model of efficiency. The United States Supreme Court, in Comcast Corp. v. Behrend, has emphasized that lack of commonality in ...

In a decision filed today, the North Carolina Court of Appeals held that the trial court did not abuse its discretion in declining to certify a class of Currituck County property owners upset about an easement affecting their coastal property. After observing that denial of class certification affects a substantial right, the Court upheld the trial court’s findings that the Parker’s Landing Property Owners’ Association Inc. (“POA”), the putative class representative, had a conflict with the members of the class and had not shown that “it would be impractical to join ...

Experian recently petitioned the Fourth Circuit to immediately review a district court’s order certifying an 88,000-member, nationwide class of consumers who requested Experian credit reports that listed accounts with the now-defunct Advanta Bank. In this case, Dreher v. Experian Information Solutions Inc., No. 14-325 (4th Cir. July 3, 2014), Experian requested an interlocutory appeal under Rule 23(f), contending that, among other things, the district court’s order that certified a class with members that had suffered no injury and found Rule 23’s predominance ...

Early in May, we reported on the Supreme Court’s review of the Basic v. Levinson presumption of reliance in securities fraud cases. In an opinion today by Justice Roberts, the Court declined the invitation to overrule Basic's presumption of reliance in an efficiently traded market. Three justices (Thomas, Scalia and Alito) were prepared to overrule Basic. The majority held that there was no “special justification” to overrule Basic, noting the absence of “the kind of fundamental shift in economic theory that could justify overruling a precedent on the ground that it ...

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 that is bound by the result because the class consists solely of victors.

A West Virginia judge recently denied a former Dollar General employee her bid for class certification, finding the proposed class was fail-safe and therefore improper ...

The aphorism “If at first you don’t succeed . . .” has special significance in class litigation.  Rule 23(c)(1)(C) expressly provides that an order granting or denying class certification “may be altered or amended before final judgment,” and the Fourth Circuit has made it clear that the district court must decertify a class if “it becomes apparent, at any time during the pendency of the proceeding that class treatment of the action is inappropriate.” Stott v. Haworth, 916 F.2d 134, 139 (4th Cir. 1990).  But Judge Childs declined to decertify a class of plaintiffs who ...

It is difficult to understate the effect on class actions of Basic Inc. v. Levinson, 485 U.S. 224 (1988), which the Supreme Court decided in 1988. It is virtually impossible to demonstrate “reliance” – a key element of most securities’ fraud claims – on a class-wide basis. Indeed, if reliance is a part of the substantive proof required for the class claims, that usually presents a ticket for dismissal of those claims and a denial of class certification. But in Basic, the Supreme Court bridged that gap, reasoning that the stock market was “efficient,” and therefore would ...

Unlike many pretrial rulings, “[a] district court’s order denying or granting class status is inherently tentative.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n. 11 (1978). Rule 23 expressly provides that “[a]n order that grants or denies class certification may be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). Indeed, as the Fourth Circuit observed, in a case our firm handled, “an order certifying a class must be reversed if it becomes apparent, at any time during the pendency of the proceeding, that class treatment of the action is ...

The so-called “Northern Beltway” around Winston-Salem – in part from litigation efforts and in part from lack of funding – has never really gotten off the ground. But property owners whose land and homes are affected by the future project complained that the State’s actions in putting them on the map for the roadway constitute a “taking” under inverse condemnation principles. And they brought a multi-count class action challenging the DOT’s actions. The trial court denied class certification, and a unanimous Court of Appeals affirmed in Beroth Oil Company v. NC ...

Family Dollar, a national discount store retailer based in Charlotte, was sued by a putative class of female store managers alleging gender discrimination in pay in the Western District of North Carolina. In January 2012, Judge Cogburn dismissed the class claims, holding that they weren’t viable under Dukes v. Wal-Mart Stores Inc., 131 S. Ct. 2541 (2011). His ruling was consistent with plaintiffs’ own declaration earlier in the case: they said their claims were “virtually identical” to those in the Wal-Mart case after the Ninth Circuit’s favorable decision (but before ...

The Supreme Court’s articulation of the “new” commonality standard – that class members must suffer the same injury – in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), doomed plaintiffs attempts to certify a class of South Carolinians challenging the practices of Liberty Tax franchisees with their customers. In Martin v. JTH Tax, Inc. (D.S.C. 2013), Judge Norton denied plaintiffs’ motion for class certification, noting that “the varying factual scenarios between putative class members,” as well as “the requisite inquiries about the alleged ...

Particularly with the Supreme Court’s denial of cert in Whirlpool v. Glazer, U.S., No. 13-431, cert. denied 2/24/14, “issue certification” itself remains an unresolved issue. In Whirlpool, the Sixth Circuit affirmed the district court’s order granting class certification of claims for breach of warranty, negligent design, and negligent failure to warn under Ohio law for Whirlpool’s front-load washing machines. Whirlpool argued that class certification was improper because individual issues of liability and damages predominated with respect to the action as a ...