Class Actions Brief Blog

We’ve written previously about courts’ differing approaches to ascertainability — an implicit requirement under Rule 23 that class members must be identifiable. A pending petition for certiorari in Career Counseling Inc. v. Amerifactors Financial Group LLC, No. 24-86 (2024), asks the Supreme Court to resolve some of these differences.

The petition originates with a District of South Carolina order denying class certification in a Telephone Consumer Protection Act case. Career Counseling, a staffing services company, filed a putative class action for alleged TCPA ...

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 ...

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 the class without first determining who the members of a class are.

In recent years, the federal appellate courts have adopted two approaches to addressing ascertainability. The first approach, adopted by the First, Third, Fourth, and Sixth ...

There are 7 justices on the North Carolina Supreme Court, and 4 are required to constitute a quorum. But what if 5 of the 7 justices have a family history of public service that could prevent them from hearing an appeal?

In Lake v. State Health Plan for Teachers & State Employees, 852 S.E.2d 888 (N.C. 2021), a class of over 220,000 members (or their estates) of the North Carolina Teachers’ and State Employees’ Retirement System spanning over two decades challenged a law requiring them to pay a premium to obtain health insurance coverage. The retirees prevailed at the trial court level ...

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 ...

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 ...

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 ...

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 district court and the Fourth Circuit “assumed for the sake of argument” that Rule 23(d)(1)(B) provides the trial court with that authority. But each declined to accept the plaintiffs' argument that the facts warranted such notice. Observing that pre-certification ...

We previously reported on Judge Cogburn’s decision to certify a class in an employee misclassification case, Rehberg v. Flowers Baking Co of Jamestown, LLC, No. 3:12-cv-596 (W.D.N.C. March 23, 2015). In May, the Fourth Circuit denied Defendants’ Rule 23(f) appeal, and so the case is proceeding in the district court. The class members have distributorship agreements with the Defendants that condition payments (in the event of any sale, conveyance or assignment) upon execution of a release. Class counsel apparently became irritated with the effect of these releases (and the ...

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 ...

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 ...