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Federal Rule of Civil Procedure 23 is silent on whether evidence offered in support of a motion for class certification must be admissible under the Federal Rules of Evidence. The Supreme Court has not addressed this issue, and there is currently no authoritative framework for incorporating all or some of the federal evidentiary rules into the class certification process. Resultantly, circuit courts are split on this question and have coalesced among several different approaches. The Eleventh Circuit follows a rigorous evidentiary standard in which evidence offered in support of class certification generally must be admissible under the Federal Rules of Evidence. This Article examines how district courts in the Eleventh Circuit have applied this standard in class action litigation and how those results compare with district courts in other circuits. Based on our review, we conclude that this more rigorous evidentiary standard promotes judicial economy and preserves party resources. [ABSTRACT FROM AUTHOR]

The article focuses on the challenges of multistate consumer class actions, specifically addressing the legal complexities arising from varying state laws and the difficulty of consolidating claims across state lines. Topics include the impact of the 2012 Ninth Circuit decision on class certification, the negative effects of class action denials on deterrence and corporate accountability, and potential solutions for resolving multistate class action issues through legal reforms.

The article focuses on recent decisions by the eight Circuit and the Supreme Court concerning arbitration clauses, jurisdictional issues, and procedural matters. It highlights the Supreme Court's ruling that the court, rather than the arbitrator, decides whether claims under subsequent contracts are subject to arbitration, the eight Circuit's handling of federal question jurisdiction, and various procedural rulings related to class certification, expert testimony, and personal jurisdiction.

The United States Court of Appeals for the Eleventh Circuit's 2021 class-action work featured an important decision on the existence of an independent ascertainability requirement for class certification. In an abrupt reversal of two unpublished opinions acknowledging the existence of such a requirement, the court aligned itself with most circuits that have addressed the question in demoting the ascertainability of class membership to a factor to be considered in establishing the manageability of a class action, rather than an independent requirement. The court's other significant cases concerned class settlements and standing. [ABSTRACT FROM AUTHOR]

In Carrera v. Bayer Corp., the Third Circuit articulated a heightened requirement of ascertainability. This heightened level of ascertainability requires a plaintiff to define a class by objective criteria and demonstrate administratively feasible means to identify class members. Consistent with the Third Circuit's view on ascertainability, such a requirement assures that the class includes only those injured and, therefore, eligible to receive a proper remedy. The requirement of heightened ascertainability would also protect defendants by ensuring them res judicata and allowing them to challenge the class's membership. Yet, the Ninth Circuit's opinion in Briseno v. ConAgra Foods stands in sharp contrast to the Third Circuit's view on ascertainability; it holds that such a requirement is unnecessary and unsupported by the language of Federal Rule of Civil Procedure 23. This split has resulted in a divide among the circuit courts concerning the meaning and application of the implied requirement of ascertainability in determining a class's certification suitability. [ABSTRACT FROM AUTHOR]

The article highlights business litigation cases decided in the U.S. from October 1, 2019 through September 30, 2020. Topics discussed include remedies and business income losses in the COVID-19 pandemic, impact of COVID-19 on securities litigation, negotiation class certification, and defenses to breach of contract claims arising out of COVID-19.

In 2013, four Supreme Court Justices dissented from the decision in Comcast Corp. v. Behrend, which established heightened requirements for the certification of damages class actions. In a seemingly offhanded footnote, these dissenters observed that district courts could avoid the individualized inquiries that increasingly doom damages classes by certifying a class under Federal Rule of Civil Procedure 23(c)(4) on liability issues only and "leaving individual damages calculations to subsequent proceedings." The dissenters were onto something big. In fact, the issue class and follow-on damages model has broad potential to restore the efficacy of aggregate litigation across several substantive areas after decades of judicial hostility. This Article offers a bold and original vision for the issue class procedure, one that promises scale efficiency while sidestepping the doctrinal land mines that dot the class action landscape. It is a vision rooted in sober pragmatism and an account of the economic incentives confronting entrepreneurial law firms as they consider investing in aggregate litigation. [ABSTRACT FROM AUTHOR]

Rule 23 of the Federal Rules of Civil Procedure governs the standards for certifying a class action, a type of litigation whose aggregate form is intended to make litigation accessible to large groups of injured plaintiffs and incentivize the vindication of claims that may otherwise go unpursued in the face of high litigation costs. However, while due process requires that a certifying court find that each element of Rule 23 is satisfied through "evidentiary proof," the federal courts have failed to adopt any kind of consistent evidentiary standard to apply to the record proffered at class certification. This has resulted in the use of class certification as a bargaining chip between plaintiffs' lawyers and wealthy defendants, rather than as a procedural mechanism that serves to test the propriety of a particular action for class treatment. Ultimately, this dynamic harms the very injured plaintiffs that this mechanism seeks to protect. This Note examines the need for a uniform evidentiary standard and surveys the countervailing interests of absent class members, defendants, class counsel, and the court at this critical juncture in a class action proceeding. It then proposes a novel categorization of the Federal Rules of Evidence as either form- or substance-based, and argues that an evidentiary standard that properly balances the interests of all parties involved in the class action requires a certifying court to apply substance-based evidence rules in determining whether a proposed class satisfies Rule 23. Such a rule, this Note will argue, is essential to ensuring that absent class members are protected, rather than exploited, by the class action mechanism. [ABSTRACT FROM AUTHOR]

The article discusses the importance of the case Merricks v Mastercard Inc. in the implementation of Great Britain's 2015 Consumer Rights Act. Topics include the country's class actions law, the failure by the Competition Appeal Tribunal (CAT) and the Court of Appeal to conduct a fulsome certification analysis of the case, and the wide-ranging effect/s of the impending ruling by the Supreme Court on future class action lawsuits.

This Note analyzes a circuit split over the application of the Forfeiture Rule, which holds that plaintiffs forfeit American Pipe tolling when they file individual actions before class certification has been resolved in the underlying putative class action. This Note rejects the Forfeiture Rule and argues that it misunderstands the purpose and rationale of American Pipe and class action tolling. Given the increased uncertainty facing class action plaintiffs, the policy and equity interests that motivated courts to adopt the Forfeiture Rule now require courts to abandon it. This is the first article to analyze the Forfeiture Rule’s history and evolution, to explore the impact of changes in class action jurisprudence on statutes of limitations on the Forfeiture Rule, and to argue against the continued viability of the Forfeiture Rule across the federal judicial system. [ABSTRACT FROM AUTHOR]

The article focuses on the decision of the U.S. Supreme Court in the case Tyson Foods, Inc. v. Bouaphakeo on representative evidence to prove classwide liability in a claim stemming from the Fair Labor Standards Act (FLSA) for certification of a Rule 23(b)(3) class actions. It mentions commonality for class certification required under Federal Rule of Civil Procedure 23(a)(2) and absence of anticompetitive behavior. It also mentions liability and damages are amenable in class certification.

The article focuses on federal court's subject matter jurisdiction derives solely from the U.S. Class Action Fairness Act of 2005 (CAFA) with minimal diversity jurisdiction provision and a request for class certification under Federal Rule of Civil Procedure 23. It mentions operation of CAFA jurisdiction in pre-certification and post successful certification situations before explaining the provisions in CAFA that have given rise to considerable confusion after courts deny class certification.

The article discusses the issue class action or lawsuit codification. Topics discussed include the tracking of the evolution and current interpretation of the Rule 23 in the "Federal Rules of Civil Procedure" book, the evaluation of the criteria for various issue class certification used by appellate courts, and the identifiction of several additional subdivisions of the rule that require changes or thorough consideration.

The article discusses some developments in franchise class actions in Canada as of January 2016. Topics covered include the Canadian franchise legislation, the differences between class certifications under the Canadian class action regime and the Federal Rule of Civil Procedure 23 in the U.S., and the types of franchise claims that have been considered for class certification. Also discussed is the issue of disclosure and misrepresentation in Canadian franchise class actions.

The article focuses on the implications of the U.S. Supreme Court's decision in the case Comcast v. Behrend on proof of damages for class certification in antitrust class action suits regarding evidence and expert testimony. It mentions that liability and damages standards for Rule 23(b)(3) of the of the Federal Rules of Civil Procedure. It also mentions that the importance of tying of liability to damages in the certification stage with the development in civil procedure and antitrust law.

The article discusses the U.S. Supreme Court's recent decision in Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), in which the court provided defendants the opportunity to rebut the fraud-on-the-market presumption before class certification. Topics include review of the fraud-on-the-market presumption in securities litigation, role played by econometric evidence concerning price effects, and fraud-on-the-market allowing buyers to recover issuer losses in the secondary market.

The article focuses on the growing number of class action lawsuits dealing with data breaches and theft. It mentions several notable companies with a reported case of data breaches include retail companies Target Corp., Home Depot Inc., and banking firm J.P. Morgan Chase & Co. Details related to class certification, litigations, and predominance, are included.

The article offers information on the U.S. Supreme Court's new order for parties to seek liability-only class certification instead of liability-and-damages certification under the U.S. Federal Rules of Civil Procedure. It discusses the judicial decision of the U.S. Supreme Court in cases including Comcast Corp. v. Behrend and Glazer v. Whirlpool Corp. regarding liability-only class under the Rule 23(b)(3) of the U.S. Federal Rules of Civil Procedure.

To settle the thousands of claims arising from the defective painkiller Vioxx, Merck Pharmaceuticals brokered an agreement, not with the Vioxx plaintiffs but with their lawyers. This agreement required the plaintiffs' lawyers to recommend settlement to all of their clients and to withdraw if any of those clients declined: plaintiffs' lawyers could either settle all of their claims or none. Through this unusual arrangement, made without the involvement of the plaintiffs and outside of any formal judicial supervision, Merck was able to craft a favorable settlement group that mimicked a Rule 23 class. This Article explores the Vioxx Agreement as but the first consequence of the Supreme Court's restrictive mass tort class certification jurisprudence. Starting with Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp., the Court has repeatedly disapproved of lower courts' broad readings of Rule 23 and denied mass tort class certification—even where justice appears to demand a class action. Now, with so little flexibility in Rule 23's requirements, few mass tort plaintiffs can hope to file suit as a Rule 23 class. By removing a crucial tool for mass tort litigators, the Supreme Court has begun to push the resolution of mass torts out of the formal judicial system and into private contractual arrangements like the Vioxx Agreement. Although agreements like this may appear to be an adequate replacement for Rule 23 actions, they are far from it. Placing a substantial proportion of group litigation outside of a judicially controlled framework will lead to a fundamental shift in the carefully drawn balance between the interests of plaintiffs, plaintiffs' lawyers, defendants, and society. Defendants will benefit from the ability to craft desirable settlement classes since plaintiffs' lawyers will face the choice between maximizing their clients' interests or their own gains-all without effective judicial oversight. Plaintiffs, and ultimately society, will bear the brunt of the changes brought about by replacing Rule 23 settlements with agreements like the Vioxx Agreement, as unjust settlements and systemic under-deterrence of future negligence will result. Previous scholarship has focused on either the ethical problems inherent in the Vioxx Agreement or the difficulties that prospective mass tort classes now face in seeking class certification. This Article analyzes these issues together and proposes that a proliferation of "Vioxx Agreements" is both inevitable and undesirable. This Article then presents a solution to this overlooked, but substantial, emerging problem: much of the deterrence value inherent in group litigation may be preserved in private settlements by aggressively sanctioning plaintiffs' lawyers for even minor ethical violations in the context of Vioxx Agreements. Rule 23 is carefully crafted to prevent abuses of mass adjudication, and may therefore effectively guide regulators in sanctioning those abuses most harmful to plaintiffs and society. [ABSTRACT FROM AUTHOR]

The article focuses on the judicial opinion of the Circuit court on the lawsuit Carrera v. Bayer Corp. for the settlement of class action mechanism. Topics discussed include the claims for class certification, impact of the decision of the lawsuit on the consumer class actions, and the laws for the mass misconduct. It further discusses the decision of the U.S. Supreme Court for the efficient dispute resolution.

The article focuses on the dissenting opinion of judges on the case Genesis Healthcare Corp. v. Symczyk on deduction of workers' lunch break for overtime under the U.S. Fair Labor Standards Act (FLSA). Topics discussed include claims of class and collective actions filed against the employer for deducting lunch breaks, role of FLSA in establishing minimum wages and working hours of employees, and claims of class certification motion filed by workers against their employer.

The article focuses on issue certification under the U.S. Federal Rules of Civil Procedure (FRCP). Topics include the bifurcation of liability and damages, damage distribution models, and personal injury class action lawsuits. Information is provided on the reexamination clause of the Seventh Amendment.

This Article argues that class actions should never be certified solely for purposes of settlement. Contrary to the widespread "settlement class action" practice that has emerged in recent decades, contrary to current case law permitting settlement class certification, and contrary to recent proposals that would extend and facilitate settlement class actions, this Article contends that settlement class actions are ill-advised as a matter of litigation policy and illegitimate as a matter of judicial authority. This is not to say that disputes should not be resolved on a classwide basis, or that class actions should not be resolved by negotiated resolutions. Rather, this Article contends that if a dispute is to be resolved on a classwide basis, then the resolution should occur after a court has found the matter suitable for classwide adjudication, regardless of settlement. [ABSTRACT FROM AUTHOR]

Classwide recoveries can have important advantages over individual recoveries. They can, for example, allow plaintiffs to pursue litigation when individual actions would be uneconomical, and they can make possible a statistical approach that is often not feasible in ordinary litigation. This Article makes these points and then explores subtler issues. In doing so, it focuses on situations in which classwide recoveries can offer a way to tailor a defendant's overall liability to the precise harm it caused. The circumstances in which this benefit accrues are important: when some but not all members of a group suffered injury, and when identifying those members of the group that were harmed is impossible or impractical. This issue has great significance. A recent controversy in class certification jurisprudence is whether plaintiffs must show harm to all or virtually all members of a proposed class to satisfy Federal Rule of Civil Procedure 23. This Article suggests a novel and counterintuitive thesis: class treatment and classwide recoveries can be particularly valuable precisely when some courts have questioned the propriety of class certification. To be more precise, classwide recoveries can impose just the right amount of liability on a defendant when plaintiffs can show the total harm the defendant has caused but cannot identify which class members suffered resulting injuries. Ironically, some courts have expressed reluctance to certify classes in just these circumstances. "For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics". [ABSTRACT FROM AUTHOR]

One of the most often cited precepts at class certification hearings—when courts hold such hearings—is that the rules of evidence do not apply. Since 1966, virtually every federal and state judge has fallen back on this trope to wave off objections to materials offered by counsel during class certification hearings. Class certification hearings, then, often resemble some sort of Kabuki theatre, where, upon an offer of proof, the opposing party rises to object to the materials on evidentiary grounds, only to be rebuffed by the judge's invocation of the "no rules of evidence apply" mantra. In light of the evolving rigorous analysis standard for class certification and the increased use of evidentiary hearings, courts ought to recognize that rules of evidence should be applied at class certification hearings. Under current practice, we have evidentiary hearings without reference to the rules of evidence. Although compelling arguments may be marshaled against imposing such a requirement, imposing evidentiary rules at class certification is the logical extension of importing the Daubert gatekeeping function into the certification process. The trend over two decades has been to make the class certification process a more serious affair, against the backdrop of the consequences of the class certification decision, which usually impels defendants to settle the case rather than to continue litigation. Imposing evidentiary rules at class certification will enhance professional responsibility on class certification motions. Additionally, imposing evidentiary rules, on balance, most likely will not increase expense or delay because litigants already undertake precertification discovery. Evidentiary standards at class certification simply will require class action attorneys to clean up their acts. In addition, requiring evidentiary rules will enhance judicial functions and responsibilities by inducing judges to make deliberative decisions in the shadow of possible appellate reversal for reliance on inadmissible materials. In the end, a class certification framework that imports evidentiary rules into the certification process will enhance the sense of justice and fairness in class certification decisions. [ABSTRACT FROM AUTHOR]

This Article argues that class actions should never be certified solely for purposes of settlement. Contrary to the widespread "settlement class action" practice that has emerged in recent decades, contrary to current case law permitting settlement class certification, and contrary to recent proposals that would extend and facilitate settlement class actions, this Article contends that settlement class actions are ill-advised as a matter of litigation policy and illegitimate as a matter of judicial authority. This is not to say that disputes should not be resolved on a classwide basis, or that class actions should not be resolved by negotiated resolutions. Rather, this Article contends that ifa dispute is to be resolved on a classwide basis, then the resolution should occur after a court has found the matter suitable for classwide adjudication, regardless of settlement. [ABSTRACT FROM AUTHOR]

Classwide recoveries can have important advantages over individual recoveries. They can, for example, allow plaintiffs to pursue litigation when individual actions would be uneconomical, and they can make possible a statistical approach that is often not feasible in ordinary litigation. This Article makes these points and then explores subtler issues. In doing so, it focuses on situations in which classwide recoveries can offer a way to tailor a defendant's overall liability to the precise harm it caused. The circumstances in which this benefit accrues are important: when some but not all members of a group suffered injury, and when identifying those members of the group that were harmed is impossible or impractical. This issue has great significance. A recent controversy in class certification jurisprudence is whether plaintiffs must show harm to all or virtually all members of a proposed class to satisfy Federal Rule of Civil Procedure 23. This Article suggests a novel and counterintuitive thesis: class treatment and classwide recoveries can be particularly valuable precisely when some courts have questioned the propriety of class certification. To be more precise, classwide recoveries can impose just the right amount of liability on a defendant when plaintiffs can show the total harm the defendant has caused but cannot identify which class members suffered resulting injuries. Ironically, some courts have expressed reluctance to certify classes in just these circumstances. "For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. " [ABSTRACT FROM AUTHOR]