January 2012

January 27, 2012 8:38 AM | Posted by Morande, Dean | Permalink
In Coastal Neurology, Inc. v. State Farm Automobile Insurance Company, No. 10-15837 (11th Cir. Jan. 25, 2012) (unpublished), the Eleventh Circuit affirmed the district court’s order denying class certification. In doing so, the court made clear once again that, although a district court may not resolve the merits of a case in ruling on a Rule 23 motion, an inquiry into the merits may be necessary to determine whether Rule 23 has been met.

Note: Carlton Fields represented State Farm in this litigation. read more
January 12, 2012 5:13 PM | Posted by D. Matthew Allen | Permalink
I bet the title got your attention. My friend, Mark Hermann, the Vice President and Chief Counsel – Litigation at Aon, and author of The Curmudgeon’s Guide to Practicing Law, has written an interesting article at abovethelaw.com. In reviewing Martin Redish’s book, Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit, Mark raises two topics sure to raise hackles at the class action bar.

The first is the subject of Redish’s book, which is whether class actions are constitutional. What? I know. That’s what I thought too, at first. Here is what Mark calls a “misleadingly over-simplified” summary of Redish’s book.
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January 11, 2012 11:38 AM | Posted by Avi Robert Kaufman | Permalink
In In re Florida Cement & Concrete Antitrust Litig., No. 09-23493-CIV, 2012 WL 12382 (S.D. Fla. Jan. 3, 2012), the plaintiffs sought certification of a class of indirect purchasers of ready-mix concrete who were injured by an alleged price-fixing conspiracy in the Florida concrete industry.  The court found that the proposed class representatives had not purchased concrete from the defendants or had purchased concrete prior to the period in which the price-fixing is alleged to have occurred and therefore did not satisfy Rule 23’s typicality and adequacy prongs.  Id. at *4-5.  Notwithstanding, the court went on to evaluate the proposed class under Rule 23(b)(3)’s predominance and superiority requirements.  Id. at *7. read more
January 10, 2012 2:37 PM | Posted by Wiley, Jim | Permalink
Friday, in D.R. Horton Inc. v. Michael Cuda, the NLRB issued a ruling that class action waivers of workplace claims can amount to an unfair labor practice under the National Labor Relations Act—that is, such waivers are unlawful. read more
January 9, 2012 11:35 AM | Posted by Kate Celender | Permalink
Despite the U.S. Supreme Court's finding in Concepcion, 131 S. Ct. 1740 (2011), that class action waivers in arbitration agreements are often unconscionable, it appears the waiver may live on. read more
January 6, 2012 8:31 AM | Posted by Kathryn Christian | Permalink
Eight circuit courts of appeals rendered 19 notable decisions addressing various issues under the Class Action Fairness Act (CAFA) in 2011, with the Seventh Circuit leading the way with five such decisions. Some show that forum shopping for class actions is alive and well. Others favor CAFA removal unless the plaintiff can show that it is “impossible” for the claim to exceed the jurisdictional amount-in-controversy threshold, while still others favored remands because removal statutes should be “strictly construed.” One decision relies upon Mark Twain for a grammar principle. There is only one dissenting opinion, but it is a very good one, citing the oft-used “duck test.” read more
January 4, 2012 11:27 PM | Posted by Adam Koppel | Permalink
According to a recent opinion by the Seventh Circuit, the answer is no.

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