Class Actions Brief Blog

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 ...

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 ...

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 rehearing en banc. The defendants in Olean obtained a extension to file a certiorari petition with the Supreme Court through August 8, 2022, so the last word may not have been written in Olean.

On July 5, 2022, the Ninth Circuit issued another notable class ...

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 holding that the presence of more than a de minimis number of uninjured class members is fatal to certification, it also clarified certain procedural matters under Rule 23 that may lead to smoother sailing for defendants at the certification stage.

As we ...

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 ...