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Class Action Trends and Developments. CERTIFICATION. 26(a) Numerosity Commonality Typicality Adequacy. 26(b)(3) *Predominance Superior Method. Dukes v. Wal-Mart Common questions & Common answers Rigorous analysis; may overlap merits. Pre-Certification. Post-Certification

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Class Action Trends and Developments

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  • 26(a)
  • Numerosity
  • Commonality
  • Typicality
  • Adequacy
  • 26(b)(3)
  • *Predominance
  • Superior Method
  • Dukes v. Wal-Mart
  • Common questions & Common answers
  • Rigorous analysis; may overlap merits


  • Post-Certification
  • Sufficiency of proof
  • Ability to calculate damages
  • Viability of claims

*Recognizes if not decided pre-certification, not likely decided at all



  • Dukes v. Wal-Mart
  • Common questions & Common answers
  • Rigorous analysis; may overlap merits
  • Glazer v. Whirlpool (6th Circuit 2012)
  • Cited Dukes, Accepted Pls.' Proof;
  • Ignored Defense Evidence
  • Comcast (3rd Circuit) – SCOTUS
  • "Without resolving whether … evidence … susceptible to awarding damages on a class-wide basis”
  • Butler v. Sears (7th Circuit 2012)
  • No mention of Dukes; Cites Glazer
  • Predominance = Efficiency
  • Defer Injury, causation, damages

Extent Daubert applies to class cert.

Extent court must consider merits issues

Extent individual adjudication of damages makes class cert inappropriate.

  • Tait v. Bosch (C.D. Cal. 2012)
  • Misuse Irrelevant to Design Defect Claims
  • Defendants Offered No Evidence
  • Amgen (9th Circuit) – SCOTUS
  • Must Plaintiffs prove materiality in order to obtain class certification?

Key Idea: Rigorous analysis cuts both ways; develop substantive record for class certification proceedings


No Injury Class Actions

  • Creating claims where none exist
    • Risk of harm, but defect not yet manifest
    • Rely on non-forum law (Glazer & Tait)
  • "Creative" damages theories
    • Premium price
    • Benefit of the bargain

Creating confusion about "injury" vs. "damages"

Failure to Disclose


Forum Law

Hodgepodge of laws


No Injury Class Actions

  • Confusion about "injury" vs. "damage"

"No injury" cert. granted

"No injury" cert. denied

  • Bifurcate: Certify Liability; Defer Damages
  • Glazer & Butler “justifications”
  • Suasponte"premium price" theory.
  • Defs should "welcome" possible win . . .
  • Address “no injury” at damages phase
  • Toyota Hybrid Brake Mktg(C.D. Cal. 2012) (same as Tait v. Bosch)
  • If, after certification, still need to filter out “no injury" class members, NO commonality or predominance.
  • "Merely offering a creative damages theory does not establish the actual injury that is required to prevail on their product liability claims."

*Comcast may clarify these issues.



Does arbitration clause cover class action?

Class action waivers

  • Stolt-Nielson – Arbitration panel must interpret the contract, not impose policy.
  • AT&T Mobility v. Conception – FAA preempts state law attempt to invalidate class waivers
  • Sutter v. Oxford Health –"no civil action concerning any dispute arising under this Agreement shall be instituted before any court ..."
  • Italian Colors v. AmEx – SCOTUS review holding that waiver not enforceable if forfeits federal rights
  • Ferney v. Dell (Mass. Sup. Ct.) – Cannot deprive plaintiffs of meaningful course of action
  • Take aways:
  • Expressly reference class action
  • Provide method for resolving dispute.
  • Employment agreements get closer scrutiny.