James Bogan III on FRCP 23

Sixth Circuit vacates certification of ten statewide classes against Nissan based on district court’s failure to ascertain common...

Takeaway: The Sixth Circuit recently emphasized how demanding Rule 23’s commonality requirement can be. In In re Nissan North America, Inc. Litigation, --- F.4th ----, No. 23-5950, 2024 WL 4864339 (6th Cir. Nov. 22, 2024),...more

12/20/2024 / Ascertainable Class , Class Action , Class Certification , Daubert Standards , FRCP 23 , Nissan

Second Circuit: presumption of fairness no longer applies to class settlements negotiated at arm’s length

Takeaway: When evaluating the fairness of a proposed class settlement, Federal Rule 23(e)(2) requires a district court to take into account, among other considerations, the terms of any proposed award of attorneys’ fees and...more

9/28/2023 / Class Action , Class Action Settlement , Class Members , FRCP 23 , Settlement Agreements , Settlement Negotiations

Sixth Circuit solidifies circuit split by rejecting “juridical link” exception to class action standing

Takeaway: Federal Rule 23 authorizes representative litigation in the form of class actions that satisfy its various requirements. The policy underlying the rule is efficiency. For example, the numerosity element (Rule...more

6/6/2023 / Class Action , Class Certification , Class Members , FRCP 23

Ninth Circuit: proof of injury is a merits issue that can doom class treatment

Takeaway: When a district court certifies a damages class action, it often cites the long line of cases holding that, because damages for each class member can be determined after a class action trial on liability,...more

3/21/2022 / Class Action , Class Certification , Class Members , Corporate Counsel , Damages , FRCP 23

Antitrust class actions: Ninth Circuit rules that predominance “cannot be outsourced to a jury”

Takeaway: We have posted a number of articles about whether Rule 23’s predominance requirement can be satisfied when a proposed class includes uninjured class members. See, e.g., D.C. Circuit denies class certification...more

5/3/2021 / Class Action , Class Certification , Class Members , FRCP 23 , Predominance Requirement , Uninjured Class Members

Motions to strike class allegations: Ninth Circuit vacates order striking class allegations, ruling class discovery must go...

Takeaway: In a prior post, we reported on a Central District of California decision granting an early motion to strike class allegations. Don’t miss the chance to strike out class actions (Feb. 27, 2019). But on appeal,...more

10/27/2020 / Class Action , Class Certification , Commonality , Discovery , FRCP 23 , Motion To Strike , Predominance Requirement

California Supreme Court adopts Seventh Circuit's weak view of ascertainability

Takeaway: The ascertainability requirement for class actions has divided both California and federal appellate courts. In Noel v. Thrifty Payless, Inc., --- P.3d ----, No. S246490, 2019 WL 3403895 (CA July 29, 2019), the...more

8/15/2019 / Ascertainable Class , Class Action , Class Certification , FRCP 23 , FRCP 23(b)(3)

Defeating predominance on the issue of class wide injury (W.D.N.Y.)

Takeaway: In Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013), the Supreme Court confirmed that Rule 23 “does not set forth a mere pleading standard,” and that, absent a showing damages can be calculated on a class-wide...more

3/25/2019 / Class Action , Class Certification , Commonality , FRCP 23 , Predominance Requirement

Don't miss the chance to strike out class actions

Takeaway: Many courts instinctively have a negative view of motions to strike. For decades courts have referred to such motions – at least when directed to individual allegations under Rule 12(f) – as “disfavored,” a...more

2/28/2019 / Class Action , Class Certification , Commonality , FRCP 23 , Motion To Strike , Predominance Requirement

First Circuit addresses an issue that continues to vex (and split) the circuits: should a class be certified that includes...

Takeaway: The issue of how to treat uninjured class members continues to vex the federal courts. This issue presents both substantive and procedural complexities. Substantively, a class must be defined in objective terms, so...more

10/25/2018 / Article III , Ascertainable Class , Class Action , Class Certification , Corporate Counsel , FRCP 23 , Injury-in-Fact , Standing

Class arbitration – can it even work?

Courts continue to devote a lot of attention on the area of class arbitration. The U.S. Supreme Court has a case on its docket, the Eleventh Circuit just decided an issue of first impression, and another important case is...more

10/10/2018 / Arbitration , Arbitration Agreements , Class Arbitration , FRCP 23 , Opt-Outs

S.D.N.Y. rules “objector extortion” in class settlement context can and should be sanctioned, and further curtailed by requiring...

Takeaway: Where a class settlement is reached, objectors may be lurking, oftentimes to extort personal payments. Earlier this year, the Seventh Circuit termed this practice “objector blackmail.” Judge Rakoff of the Southern...more

9/28/2018 / Class Action , Cy Pres Funds , FRCP 23 , Sanctions , Settlement

Ninth Circuit deepens Circuit split by holding inadmissible evidence can be considered in resolving class certification

Takeaway: The Ninth Circuit recently ruled that inadmissible evidence may be considered in ruling on a motion for class certification. But does inadmissible evidence really qualify as evidence? Notwithstanding the evidentiary...more

5/21/2018 / Class Action , Class Certification , Daubert Ruling , Expert Witness , FRCP 23 , Inadmissible Evidence

James Bogan III

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