Civil Procedure Commons^™

Injury-In-Fact Of Nothing: Why Federal Courts Cannot Certify Classes With Uninjured Members After Labcorp, Jacob Davenport

University of Cincinnati Law Review

No abstract provided.

“Conditional” Class Certification Under The Flsa: Violation Of Rule 23 And The Rules Enabling Act, Markham R. Leventhal

University of Miami Law Review

So-called “collective” actions under § 216(b) of the Fair Labor Standards Act (the “FLSA”) are nothing more than “opt-in” class actions. This Article exposes the unjustifiable failure to apply Rule 23 of the Federal Rules of Civil Procedure to these actions, the erroneous conclusion by several circuit courts that these actions are not “representative” actions but rather some kind of “mass joinder,” and the resulting violation of the Rules Enabling Act when courts allow these “collective” actions to proceed without satisfying the requirements of Rules 23(a) and (b). The author explains why the vast majority of federal courts, using an …

Interpreting Rule 23: A Legal Basis For Incentive Awards In Class Action Lawsuits, Chris Battaglia

St. John's Law Review

(Excerpt)

This Note first explores the methodologies that the Supreme Court utilizes to interpret the Federal Rules of Civil Procedure and then applies these methodologies to interpret Rule 23. It argues that the Court has demonstrated two different viable strategies to interpret the Rules: (1) applying basic principles of statutory interpretation analysis and (2) giving effect to the policy and purpose surrounding the Rule. This Note concludes that both of these methodologies can be applied to Rule 23, and that as applied, both support the position that Rule 23 authorizes courts to legally grant incentive awards to named plaintiffs in …

The Problem With The “Non-Class” Class: An Urgent Call For Improved Gatekeepers In Merger Objection Litigation, Josh Molder

Fordham Journal of Corporate & Financial Law

Until recently, class actions dominated merger objection litigation. However, plaintiff’s lawyers have constructed a “non-class” class where an individual suit can benefit from the leverage of a certified class without ever meeting the stringent class certification requirements of Federal Rules of Civil Procedure 23. This new development has initiated a shift in merger objection litigation where plaintiffs are increasingly filing individual suits instead of class actions. However, this shift has left shareholders vulnerable to collusive settlements because plaintiff’s attorneys have significant control over these suits and a strong incentive to settle quickly for a substantial fee. Additionally, corporate defendants are …

Who, What, Where, And When? Why Courts Should At Least Consider The Third Circuit’S Heightened Ascertainability Requirement As A Prerequisite To Class Certification, Christian Osorno Cortes

FIU Law Review

No abstract provided.

A New Approach To Plaintiff Incentive Fees In Class Action Lawsuits, Jason Jarvis

Northwestern University Law Review

Because modern litigation is time-intensive and expensive, a consumer has no monetary incentive to sue over a low-value claim—even when the defendant has clearly violated that consumer’s legal rights. But the defendant may have harmed many consumers in the same way, causing significant cumulative damage. By permitting the aggregation of numerous small claims, class action lawsuits provide a monetary incentive for lawyers and plaintiffs to pursue otherwise low-value suits. Often, an important part of this incentive is the “incentive fee,” an additional payment awarded to the named plaintiffs as compensation for the time they spend and risks they assume in …

What Is A Fair Price For Objector Blackmail? Class Actions, Objectors, And The 2018 Amendments To Rule 23, Elizabeth Cabraser, Adam N. Steinman

Faculty Scholarship

As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The …

What Is A Fair Price For Objector Blackmail? Class Action Objectors And The 2018 Amendments To Rule 23, Elizabeth J. Cabraser, Adam N. Steinman

Lewis & Clark Law Review

As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The …

Bankruptcy’S Class Act: Class Proofs Of Claim In Chapter 11, Tori Remington

Dickinson Law Review (2017-Present)

When a business files for protection under Chapter 11 bankruptcy, it must begin to pay off its debt by reorganizing or liquidating its assets. Oftentimes, both processes include terminating employees to reduce the business’s expenditures. As a result of these terminations, former employees might file a “class proof of claim” against the business to preserve any claims of unpaid wages or violations of federal law.

Whether a group may file a class proof of claim against a debtor in bankruptcy remains unclear. The Tenth Circuit has rejected the class proof of claim in bankruptcy. The remaining circuit courts that have …

Dueling Grants: Reimagining Cafa’S Jurisdictional Provisions, Tanya Pierce

Georgia State University Law Review

More than a decade after Congress passed the Class Action Fairness Act of 2005 (CAFA), courts continue to disagree as to its application and meaning in a variety of situations, many of which have wide-ranging effects. This article considers a fundamental issue that arises after a certification decision is reached: whether a court’s subject matter jurisdiction under CAFA depends on a class being certified. Specifically, the article considers what happens when a federal court’s subject matter jurisdiction derives solely from CAFA’s minimal diversity jurisdiction provision and a request for class certification under Federal Rule of Civil Procedure 23 (Rule 23) …

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

Publications

No abstract provided.

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Publications

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …

Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal-agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest.

Although multidistrict litigation now comprises 36 percent of the entire federal civil caseload, legal scholars have …

Class Action Myopia, Maureen Carroll

Articles

Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target …

Will Employment Discrimination Class Actions Survive?, Melissa Hart

Akron Law Review

This paper will argue that the changes wrought by the Civil Rights Act of 1991 do not in fact pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right in the Civil Rights Act of 1991 may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class action either impermissible under Rule 23 or violative of due process or Seventh Amendment jury trial rights. Courts and commentators who insist that …

Finding The Civil Trial's Democratic Future After Its Demise, David Marcus

Nevada Law Journal

No abstract provided.

Reflections Of A Recovering Aggregationist, Linda S. Mullenix

Nevada Law Journal

No abstract provided.

Defining The Word: "Maintain"; Context Counts, Jack Friedenthal

Akron Law Review

To understand what a word means, especially one such as “maintain” that has multiple formal definitions, one must consider the background and purpose for which it is utilized.

The Breaking Of A Wave: Jacobsen V. Allstate Ins. Co. And Class Certification, Lucas Hamilton

Montana Law Review

No abstract provided.

Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper

Faculty Scholarship

This article considers two barriers to class-based adjudication of Title VII claims erected by the Roberts Court: (1) the Court's interpretation of Rule 23, primarily in Wal-Mart v. Dukes; and (2) the Court's interpretation of the Federal Arbitration Act (FAA) in a series of decisions, both employment-related and not. The article contends that it is the latter group of decisions that are the more significant for Title VII private aggregate litigation as well as for other types of private litigation. The Wal-Mart Court predictably did not expand an employer's obligations to avert discrimination by its agents, and its predictable interpretations …

Horton The Elephant Interprets The Federal Rules Of Civil Procedure: How The Federal Courts Sometimes Do And Always Should Understand Them, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

In Shady Grove, the Court considered whether a federal class action was maintainable in a diversity case where state law forbade class actions. The justices were sharply split into shifting majorities. One majority concluded that Rule 23 was not substantive for REA purposes and that it applied, but its members could not agree on why. Four justices thought it was proper to look only at the Federal Rule in question to see whether it addressed substance or procedure on its face. A different majority supported an approach to REA questions that required evaluating state law to determine whether the Federal …

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Publications

No abstract provided.

Kryptonite For Cafa?, Adam N. Steinman

Faculty Scholarship

This essay — for the Review of Litigation’s symposium issue on the Class Action Fairness Act (CAFA) and accompanying panel at the 2013 annual meeting of the Association of American Law Schools — explores the tension between CAFA and the Erie doctrine. CAFA was designed to expand federal diversity jurisdiction over high-stakes state-law class actions and, thereby, allow federal judges to decide class certification pursuant to federal law. The Erie doctrine, by contrast, aims to discourage vertical forum shopping by requiring federal courts hearing state-law claims to follow state law. Put the two together, and the result could be that …

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

The Future Of Classwide Punitive Damages, Catherine M. Sharkey

University of Michigan Journal of Law Reform

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …

Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin

University of Michigan Journal of Law Reform

In this Article we argue for substantial reforms to our system of combating workplace gender discrimination in light of the Supreme Court's ruling in Wal-Mart Stores, Inc. v. Dukes. To help counter discrimination victims' decreasing access to the courts, our proposals call for a narrow construction of the holding of Dukes. At the same time, agencies such as the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Securities and Exchange Commission (SEC) can better use their regulatory authority to address gender discrimination. Further, regulatory agencies, arbitrators, and courts can mandate mentoring programs to …

Professor Edward Cooper: The Quintessential Reporter, Mary Kay Kane

University of Michigan Journal of Law Reform

Ed Cooper's twenty-year service as the Chief Reporter for the Civil Rules Advisory Committee deserves special recognition and tribute not only because of its longevity-which is remarkable in and of itself-but more particularly, because of the scope and depth of the rule changes he has helped to shepherd into law.

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

University of Michigan Journal of Law Reform

Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure. I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness that denounced effective civil procedure as an enemy of economic development. I was then commenting adversely on what the Court had done to transform Rule 8. I …

Iron Man Of The Rules, Patrick E. Higginbotham

University of Michigan Journal of Law Reform

To grasp Professor Cooper's contribution to rulemaking, it is helpful to review issues that the Advisory Committee confronted during his tenure. I will focus on the first four of his twenty years of service.