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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 article presents the discussion on class certification confering a fearsome power on plaintiffs. Topics include disparate potential claimants through a class action producing a mighty concentration of power that plaintiffs can wield against defendants; and student subject to a challenged admissions rule, every employee working under the same compensation policy.

The article focuses on decision of the U.S. Court of Appeals for the Eleventh Circuit in the case Drazen v. Pinto which held that it would certify a class for settlement only if all class members — named and unnamed — could establish Article III standing in the Eleventh Circuit. It mentions holding could threaten the future of nationwide class actions and class certification and company had violated the Telephone Consumer Protection Act (TCPA) by calling or texting class members.

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 commencement of a class action tolls statutes of limitations for all members of the putative class. This rule, so simply stated by the Supreme Court in American Pipe & Construction Co. v. Utah, has proved complicated in practice. Since American Pipe, lower courts have disagreed about the circumstances under which the tolling rule applies. Though theCourt has resolved many of these disagreements, some uncertainties remain. This Comment takes up two of those questions. First, does tolling benefit plaintiffs who sue while class certification is pending? Second, does tolling benefit plaintiffs who opt out of a certified class? My analysis takes advantage of two recent Supreme Court decisions that clarify the legal basis of a doctrine left untouched for over three decades. These decisions make clear that American Pipe is a creature of courts' equitable powers. This fact limits when tolling can apply. Most importantly, the judicially crafted tolling rulemust respect the statutory intent of the time bar to be tolled. I argue that class action tolling respects the statutory intent of time bars only when plaintiffs claiming tolling have plausibly relied on the class action proceedings. This general rule, applied to the questions considered in this Comment, yields different answers depending on the exact time bars faced by plaintiffs. Ingeneral, plaintiffs facing a statute of limitations shouldbenefit from tolling only if they sue after the class is denied certification or otherwise terminates. But plaintiffs facing two time bars--a statute of limitations and a statute of repose--should, in some cases, benefit from tolling even when they file before the certification ruling. [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]

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of two women (but not one), is associated with procertification outcomes. Our results show that, contrary to conventional wisdom in scholarship on diversity on the Courts of Appeals, the impact of diversity extends beyond conceptions of “women’s issues” or “minority issues.” The consequences of gender and racial diversity on the bench, through application and elaboration of certification law, radiate widely across the legal landscape, influencing implementation in such areas as consumer, securities, labor and employment, antitrust, insurance, product liability, environmental, and many other areas of law. In considering possible explanations for our findings on the procertification preferences of women and African Americans, we note that class action doctrine, as transsubstantive procedural law, traverses many policy areas. As strategic actors, it would be rational for judges to take into consideration how class-certification doctrine in a case that does not implicate issues on which they have distinctive preferences might affect certification in cases that do. Alternatively, or in addition, our results may be the first evidence that transsubstantive procedural law affecting access to justice is itself a policy domain in which women and African Americans have distinctive preferences. In either case, the results highlight the importance of exploring the effects of diversity on transsubstantive procedural law more generally. Our findings on gender panel effects in particular are novel in the literature on panel effects and the literature on gender and judging. Past work focusing on substantive antidiscrimination law found that one woman can influence the votes of men in the majority (mirroring what we find with respect to African Americans in class-certification decisions). These results allowed for optimism that the panel structure—which threatens to dilute the influence of underrepresented groups on the bench because they are infrequently in the panel majority—actually facilitates minority influence, whether through deliberation, cue taking, bargaining, or some other mechanism. Our gender results are quite different and normatively troubling. We observe that women have substantially more procertification preferences based on outcomes when they are in the majority. However, panels with one woman are not more likely to yield procertification outcomes. Panels with women in the majority occur at sharply lower rates than women’s percentage of judgeships, and thus certification doctrine underrepresents their preferences relative to their share of judgeships and overrepresents those of male judges. [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]

Cases against government defendants for large-scale injunctive relief often turn on the class certification decision. From the modern class action's early days until 2011, these "public interest class actions" enjoyed marked success in the federal courts. This procedural favor seemed to lapse when the U.S. Supreme Court decided Wal-Mart Stores, Inc. v. Dukes. The decision tightened the requirements that govern class certification in public interest cases. In Wal- Mart's immediate wake, several courts of appeals vacated certified classes in important structural reform lawsuits. This litigation seemed to face a tough road ahead. But the public interest class action has persisted. In this symposium contribution, I report quantitative and qualitative findings from my analysis of every reported decision on class certification in a federal public interest case from June 21, 2011 to March 31, 2020. About 75% of district court decisions favor plaintiffs, and appellate judges continue to vote for plaintiffs at a high rate. I use a typology of public interest class actions to explain the reasons for Wal-Mart's modest impact. The case has proven irrelevant to two of the public interest class actions' three major types. Wal-Mart has changed litigation practice in the third, a type involving structural reform lawsuits challenging systemic government maladministration. The decision has forced litigants and courts to clarify the nature of the substantive rights at stake with more precision. These efforts have prompted a "group rights" jurisprudence to crystallize. Courts have come to understand that the substantive law in these cases protects plaintiffs not as individuals but as undifferentiated group members. As such, this law is not just amenable to class-wide adjudication. It requires class action procedure for its vindication. The persistence of the public interest class action does not depend on how procedural law evolves going forward. It depends on whether federal judges continue to recognize group rights in bodies of law protecting prisoners, children in foster care, people with disabilities, and other vulnerable populations. As my findings of disparities in judges' willingness to support class certification suggest, ideology will likely determine this future course. [ABSTRACT FROM AUTHOR]

This Article occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district brought under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants' motion to dismiss but also denied the plaintiffs' motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and Latinx students in poor, violence-torn inner-city communities by characterizing the students as having disabilities. The Article disagrees with legal scholarship thus far, which posits that using disability law to help these students both stigmatizes them and ignores current disability law's focus on individual claims. Instead, this Article asserts that concerns about stigma are outweighed by the potential to assist distressed students. Doctrinally, it contends the concern for individual claims is overstated because one major goal of disability law is to remove social barriers that inhibit the flourishing of people with dis/abilities. By analyzing the social construction model of dis/abilities implicit within current law, this Article shows that group-based claims like those of the Compton students are a valid use of the class certification power. This Article's key contribution to the dis/abilities studies and critical race literatures is the creation of a theory of "intersectional cohorts. " Members of intersectional cohorts share similar self-identities, attributed identities, and identity performances to the extent that it is appropriate to think of them as a discrete and cohesive group in relation to a particular issue. This is a way to explore the meso-level of discrete and cohesive social groups who share multiple identities without devolving into a micro-level theory of each individual or essentializing identities through a macro-level theory of broad social groups. Understanding poor Black and Latinx students in violence-torn neighborhoods as an intersectional cohort presumes that they have shared experiences and responses to their environment sufficient to constitute a class that should be certified in the Compton suit and in other similar lawsuits. This approach is supported by the scientific research on Adverse Childhood Experiences (ACEs) and their relationship to complex trauma and disability. We hope this analysis will serve as a model for future theoretical and applied analysis of intersectional cohorts, especially with respect to dis/abilities. [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.

Perhaps the two most salient trends in complex litigation have been the rise of multidistrict litigation (MDL) and the fall of aggregation on plaintiffs’ terms. According to recent statistics, more than one third of federal cases are consolidated within MDLs — meaning that they are being litigated before judges handpicked by the Judicial Panel on Multidistrict Litigation (JPML), which itself was handpicked by the Chief Justice. Meanwhile, decisions on personal jurisdiction, class actions, and other topics have dramatically reduced plaintiffs’ abilities to select their preferred forum for complex cases. These trends intersect when jurists and scholars suggest that MDL provides a backstop for aggregate litigation because it is not constrained by rules on personal jurisdiction and class certification. The ultimate choice, then, of the forum in which large-scale cases will be litigated seems to be increasingly in the unconstrained hands of the JPML, and not the plaintiffs’. This reliance on MDL as the primary vehicle for aggregation makes it particularly important to know how plaintiffs and defendants fare before the JPML when they argue over where and before whom a new MDL should be heard. This paper presents the results of our empirical study of the relationship between party preferences and the assignment of MDLs to particular districts and judges. Based on a study of every MDL for a five-year period (2012-2016), we find that party preferences are meaningful for the selection of MDL districts. When plaintiffs and defendants agree on a preferred district, that district is very likely to be the eventual location of the MDL. When they disagree, the JPML sides with plaintiffs and defendants roughly equally. Whether this formal equality implies substantive equality, though, is an issue that merits further attention — and it raises deeper concerns about those forces that are pushing more cases into MDL in the first place. We also examine the characteristics of individual judges to which MDLs are assigned. We find that the JPML has not used its appointment power to engage in partisan behavior and it has ensured that transferee judges are as diverse as judges overall, although it has not been at the leading edge of diversification. In sum, we are encouraged by the Panel’s decisions as far as they go, though we believe that these findings call for further scrutiny of federal procedure and judicial administration. The Panel is treating plaintiffs and defendants equally with respect to forum choice, so it matters how frequently MDL is the best (or only) option for aggregation, and it is assigning cases to judges that are representative of federal district judges, so it matters who makes up the federal judiciary. And, of course, the Panel itself is a central actor in this ever-growing segment of federal litigation, so it matters whom the Chief Justice appoints to serve on the Panel in the first place. Understanding these forces is therefore critical to assessing procedural fairness in an era of increasing MDL dominance of the federal judicial system. [ABSTRACT FROM AUTHOR]

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]

In 2015, registered nurses brought a putative employment class action against the hospital that employed them, alleging that the hospital underpaid them by rounding their time in violation of California law. The United States District Court for the Central District of California denied class certification because the evidence that the plaintiffs submitted to demonstrate the "typicality requirement" for class certification under Federal Rule of Civil Procedure 23 was inadmissible. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that inadmissibility alone is not a proper basis for denying class certification, adding to the circuit split over the issue of whether evidence submitted at class certification proceedings must be admissible under the Federal Rules of Evidence. This Comment analyzes the Ninth Circuit's position in the circuit split and argues that, because of the nature of the evidentiary challenges in Sali v. Corona Regional Medical, the applicability of its holding remains unclear for cases where evidentiary objections go to the form rather than the substance of the evidence. [ABSTRACT FROM AUTHOR]

The article focuses on pressing problem of serial class action relitigation in the U.S. Topics discussed include divergent ways courts have since addressed this problem in the class certification context; the U.S. Supreme Court case Smith v. Bayer Corp. on same; and enactment of Class Action Fairness Act for addressing class action in country. It also informs on the role of Federal Rule of Civil Procedure in addressing the same.

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.

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes over broad and ill-defined classes; these critics favor an opt-in model. This bimodal debate — opt out vs. opt in — has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on an opt-out or an opt-in basis? This article explores such an opt-in option. It considers the effects of opt-in classes’ enhanced cohesiveness and representational character on the ease of class certification, the logistical challenges of opt-in mechanisms and the technological advances that can mitigate those challenges, the doctrinal feasibility of allowing an opt-in option, and the potential pitfalls the option presents. The article concludes that the opt-in option has positive potential, and it offers specific proposals for rule makers to consider. [ABSTRACT FROM AUTHOR]

Federal law requires a class action be "superior to alternative methods for fairly and efficiently adjudicating the controversy." This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card--subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges should rely on existing yet currently underutilized case management tools and abandon the failed superiority experiment. [ABSTRACT FROM AUTHOR]

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 discusses the author's proposal regarding the use of class action-related issue classes as a means of streamlining America's class certification process, and it mentions potential changes to the U.S. Federal Rules of Civil Procedure, as well as the problems that are associated with the American government's regulatory system. The legal aspects of defendants' misconduct are assessed, along with issues involving compensation for attorneys and the parens patriae legal doctrine.

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 case Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II) wherein court held that plaintiffs of securities were not required to prove loss causation in order to gain class certification. Topics discussed include private cause of action for securities fraud investigated under the U.S. Securities and Exchange Commission's Rule 10b-5, impact of Halliburton Co. case on the Basic Inc. v. Levinson and different court decisions made in the cases.

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 several topics associated with employment and labor laws of Michigan in reference with several court cases. Topics discussed include the case Duskin v. Department of Human Services related to class certification for discrimination in promotional opportunities, Henry v. Laborers' Local 1191 related to retaliation claims due to violation of Whistleblowers' Protection Act (WPA), and Klein v. HP Pelzer Automotive related to violation of employment contracts.

The article focuses on the development and use of Rule 23(f) of the U.S. Federal Rule of Civil Procedure and the authorization of the interlocutory appeals for class action certification decisions. Topics discussed include approaches taken by the courts of appeal to determine the interlocutory review under Rule 23(f), its exception to the final judgment rule by granting the appellate court discretion and the U.S. Supreme Court case Coopers & Lybrand v. Livesay related to final judgment rule.

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.

Through two recent decisions, the Supreme Court has both reaffirmed and revised the so-called fraud-on-the-market presumption of reliance--the mechanism that allows securities-fraud class actions to go forward. Members of the Court split on the mechanics of the presumption in the first of these cases (Amgen), leading to a call to reconsider the entire presumption as outmoded and mistaken. The second case (Halliburton) said that the presumption was still good law, though it did potentially increase the difficulty of getting the class certified. This Article compares and contrasts the two cases, explores the role of market efficiency post-Halliburton, and digs into what it means for the issue of price distortion to be an appropriate subject for consideration at the class certification stage. [ABSTRACT FROM AUTHOR]

This Essay analyzes the Supreme Court's decision in Halliburton II. I argue that, although the opinion appears to do little other than establish a minor change in the class certification procedure, the probable impacts are subtler and more significant. Among other consequences, the opinion may spark congressional efforts to repeal or cut back the fraud-on-the-market presumption; reduce plaintiffs' bargaining leverage and prospects for success; open new avenues for certification of state law cases; influence the rate of filing and the types of cases that are filed; increase the frequency of settlement classes; and increase litigation costs. [ABSTRACT FROM AUTHOR]

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.