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What is the Standard for Class Certification?
The answer is nowhere near as simple as you might think. Everyone knows that a court is supposed to conduct a “rigorous analysis,” but what that means in practice is not quite as clear. For example,...
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The State of the Merger Class Action
Merger-challenge class actions have become very popular in the last decade. (For a great source of data, check Cornerstone Research’s surveys on the subject.) They operate similar to traditional...
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A Theory of Novel Injury Theories
Back in 2010, noted legal scholar Marc Galanter wrote an article on “The Dialectic of Injury and Remedy.” It contains only one explicit mention of class actions, but, in general, touches on some points...
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The Guardianship Model of the Class Action
Northwestern Law professor Martin Redish should be very familiar to readers of this blog. I’ve covered his work before, from his constitutional challenges to the class action through his critique of...
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Vulnerability Theory & Class Actions
SUNY-Buffalo professor Christine Bartholomew has an article out with the intriguing title “Redefining Predator and Prey in Class Actions.” Unfortunately, it does not use zoology or mathematical...
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Amending Rule 23: Lessons from the PSLRA
Earlier this year, it became clear that the Advisory Committee on Civil Rules is considering possible amendments to Rule 23. As Tony Lathrop’s post summarizes, the “front burner” issues at the moment...
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Adequacy & Class Action Governance
For a long time, I have had a very specific law review article I’ve wanted to write, but with my many other commitments, it has never come to fruition. And, given my schedule coming up, it’s unlikely...
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Size Matters: The Psychology of the Class Action
Back when the Dukes class action was before the Supreme Court, journalists and academics wrote a number of pieces—some longer, some shorter—about whether a class action could be too large. (After the...
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Strategic Ambiguity in Complex Litigation
Defense lawyers, especially class-action defense lawyers, live in a world ruled by ambiguity. While they’re often more predictable than they like to believe, judges work to keep their intentions in a...
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What Will Be in the Coming Class Action Amendments?
I’ve written a little so far about the fact that Rule 23 is likely to undergo revision in the next few years. Last week Judge Robert Michael Dow, who is a member of the Advisory Committee on the Rules...
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The Rules Advisory Committee Study Agenda – Rule 23(e)
Amending Rule 23 would add clarity to the settlement process and teeth to the protection of absent class members. But to solve the real class settlement process, the Advisory Committee will have to...
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The Ten Most Significant Class Action Cases of 2014
Year-end lists are funny things. They take a sort-of arbitrary starting and stopping point, and then they cram a bunch of prejudices into a (usually) arbitrary number of items. And then people take...
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The Rules Advisory Committee Study Agenda – Cy Pres
In the last five years, the use of cy pres relief in settlements has become particularly controversial. Various appellate courts have expressed suspicion about the use of cy pres in questionable...
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Rule 23 Study Agenda – Objectors
Oft-maligned objectors serve a valuable function in class actions. Rather than trying to rein them in; the Advisory Committee should work on reducing the need for them. No one likes objectors....
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Rule 23 Study Agenda – Notice Issues
Provisions to make notice of class certification cheaper and more effective are welcome, but they should also focus on making it more accessible once it arrives. The Rule 23 Advisory Subcommittee is...
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Rule 23 Study Agenda – FRCP 68 and Mootness
One of the most heated debates in the last five years of class action practice has been the proper use of Rule 68’s offer of judgment. Defendants like the offer of judgment because it can either moot...
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Rule 23 Study Agenda – Merits Inquiry
The role of the merits inquiry at certification is of vital interest to litigators, but less so to policymakers. The Rules 23 Subcommittee, in the report from its October meeting, pointed out that,...
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Rule 23 Study Agenda – Issue Certification and Rule 23(c)(4)
One of the Advisory Committee’s “front burner” issues is whether to clarify Rule 23(c)(4), establishing either that it (1) only applies when the rest of Rule 23 has been met, or (2) is an alternative...
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Rule 23 Study Agenda – Ascertainability
The final topic the Subcommittee has announced it will examine is the possibility of adopting a formal ascertainability requirement. The topic was suggested by several judges of the Third Circuit, who...
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The Proposed Rule 23 Amendments Are Here, and They’re Not Good
Last week, the Rule 23 Subcommittee of the Federal Rules Advisory Committee published its draft concept amendments to Rule 23. You can find them here. (They’re in the April 2015 Agenda Book.) What...
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