James Bogan III on Class Members

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

Eleventh Circuit strikes again, vacating class settlement for lack of standing

Takeaway: We have written about Eleventh Circuit decisions on Article III standing and its relationship to the proper approval of a class action settlement. See Eleventh Circuit holds that every class member must have...more

5/31/2023 / Article III , Class Action , Class Action Settlement , Class Members , Standing

Eleventh Circuit emphasizes the abuse of discretion standard in affirming the denial of certification of a “diminution in value”...

Takeaway: From the perspective of attorneys representing class action defendants, it seems that some circuits (especially the Ninth Circuit) do not give much deference to district court decisions denying class certification....more

9/2/2022 / Class Action , Class Certification , Class Members , FRCP 23(b)(3) , Predominance Requirement

Eleventh Circuit holds that every class member must have standing for a class action settlement to be approved

Takeaway: We have posted articles addressing the U.S. Supreme Court’s standing-related decision in Frank v. Gaos, 139 S. Ct. 1041 (2019), as well as its decision in TransUnion, LLC v. Ramirez, 141 S. Ct. 2190 (2021). In a...more

8/23/2022 / Article III , Class Action , Class Members , Injury-in-Fact , Standing , TransUnion LLC v Ramirez

En banc Ninth Circuit reinstates class certification ruling in Bumble Bee price-fixing case, arguably solidifying a circuit split...

Takeaway: A year ago we wrote about the Ninth Circuit’s decision in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021), where a panel held that a district court abused its...more

4/22/2022 / Class Action , Class Certification , Class Members , Predominance Requirement , Uninjured Class Members

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

Ninth Circuit: class representative may not tailor class definitions to accommodate personal and not class-wide merits issues

Takeaway: The individual claims asserted by a class representative – as well as the defenses that apply to those claims – form the foundation of any effort to certify a class under Rule 23. If the claims of the class...more

1/13/2022 / Class Action , Class Certification , Class Members , Class Representatives , FRCP 23(b)(3)

Third Circuit examines propriety of issue certification under Federal Rule 23(c)(4)

Takeaway: Federal Rule 23(c)(4) provides: “When appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Although class plaintiffs often seek “issue certification” as an...more

10/27/2021 / Class Action , Class Certification , Class Members , FRCP 23(c)(4)

Third Circuit forbids “one-way intervention” in cases combining FLSA opt-in collective claims with Rule 23 opt-out claims

Takeaway: In theory, class litigation should be fair. Class members should not be permitted to see how a case will play out at trial before deciding whether to opt out of a damages class – a practice known as “one-way...more

10/27/2021 / Class Action , Class Members , Fair Labor Standards Act (FLSA) , Opt-Outs , Wage and Hour

SCOTUS standing ruling – “No concrete harm, no standing” – sidesteps class action issues and could limit federal subject matter...

Takeaway: In TransUnion LLC v. Ramirez, --- S. Ct. ----, No. 20-297, 2021 WL 2599472 (June 25, 2021), the Supreme Court granted certiorari to resolve the question of “[w]hether either Article III or Rule 23 permits a damages...more

7/1/2021 / Article III , Class Action , Class Members , Credit Reporting Agencies , Credit Reports , Fair Credit Reporting Act (FCRA) , Injury-in-Fact , SCOTUS , Standing , TransUnion , TransUnion LLC v Ramirez

Eleventh Circuit affirmance of fee award demonstrates the long reach of an MDL

Takeaway: When the Judicial Panel on Multidistrict Litigation (JPML) consolidates cases and transfers them to a single, multidistrict litigation (MDL) court, the process is in a very important respect coercive. Counsel for...more

6/25/2021 / Class Action , Class Members , Multidistrict Litigation , Remand

Data breach class actions: M.D. Fla. threads the Rule 23 needle in certifying the first consumer payment card class action

Takeaway: Judge Timothy Corrigan of the Middle District of Florida recently found a way to certify a class action where consumers alleged the theft of payment card data, acknowledging he “may be the first to certify a Rule...more

5/26/2021 / Class Action , Class Certification , Class Members , Corporate Counsel , Data Breach , FRCP 23(b)(3) , Identity Theft , Predominance Requirement , Unfair Competition Law (UCL)

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

D.C. Circuit denies class certification where putative antitrust class includes uninjured class members

In a prior post [First Circuit addresses an issue that continues to vex (and split) the circuits: should a class be certified that includes uninjured class members? (October 24, 2018)], we reported on a First Circuit...more

9/3/2019 / Antitrust Litigation , Class Action , Class Certification , Class Members

James Bogan III

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