Robinson Bradshaw

Topic: Commonality/Predominance

Disappointments and Silver Linings in North Carolina Class-Action Law

Life has its disappointments. Sometimes, you think you’ve won a free car, but it turns out that you’ve won only a couple of dollars. And sometimes, you think that an appellate court will clarify a thorny issue of class-action law, but the court leaves that issue unresolved. These scenarios coalesced in a recent decision from […]

Both Car and Class Totaled?

One of the key issues at class certification is whether plaintiffs have met their burden to establish commonality and predominance: that “questions of law or fact common to class members predominate over any questions affecting only individual members,” as required by Fed. R. Civ. P. 23(b)(3). Plaintiffs often rely on an expert model purporting to […]

Fail-Safe Classes Are Fundamental

Last month, the D.C. Circuit deepened a circuit split on the issue of fail-safe classes. The decision, In re White, 64 F.4th 302 (D.C. Cir. 2023), rejected a categorical rule against all fail-safe classes in favor of a case-by-case approach rooted in the text of the federal rules. With this ruling, the D.C. Circuit called […]

The Dangers of Watering Down Class-Certification Standards in Fraud Cases

Class actions have long been difficult to certify in fraud cases.  But a recent district court decision in California takes a new approach that would make class certification in fraud cases the norm.  That decision is now on appeal to the Ninth Circuit, where Robinson Bradshaw filed an amicus brief on behalf of the Chamber […]

Deep Dive into Dueling Experts Leads to Denial of Class Certification in Multidistrict Litigation

A leading feature of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes is the “rigorous scrutiny” the trial court must apply to determine whether the evidence plaintiffs offer to support class certification meets the requirements of Rule 23. Following the Supreme Court’s decisions in Wal-Mart and Comcast, “[i]t is now indisputably the role […]

Does Tyson’s “No Reasonable Juror” Standard Relieve Courts of the Obligation Rigorously To Analyze Expert Statistical Models at Class Certification?

In order to have a class certified, the plaintiffs have the burden of proving to the satisfaction of the court, “after a rigorous analysis,” that they comply with Rule 23—that is, that “there are in fact sufficiently numerous parties, common questions of law or fact, etc.”  Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 […]

How Many Uninjured Class Members is Too Many for Certification? The Waters Remain Murky.

The extent to which the presence of uninjured class members may defeat class certification remains unsettled. While, standing alone, the existence of some uninjured class members may not be not fatal (depending on the circuit), just how many is too many to satisfy the predominance requirement of Rule 23(b)(3) is still in flux. The Ninth […]

Sixth Circuit Weighs In On Issue Certification

We’ve commented before in this space about the ongoing debate concerning the relationship between the predominance requirement of Rule 23(b)(3) and “issue certification” under Rule 23(c)(4). Yesterday, the Sixth Circuit weighed in on the subject. See Martin v. Behr Dayton Thermal Prods., No. 17-3663 (6th Cir. July 16, 2018). The case related to a “Superfund […]

Is a Class Representative Adequate if He Waives Viable Claims in Order to Preserve Commonality?

Class actions don’t work if the class representative has a conflict with the class he or she purportedly represents. As the United States Supreme Court noted over 70 years ago, “a selection of representatives for purposes of litigation, whose substantial interests are not necessarily or even probably the same as those whom they are deemed […]

How Will Justice Gorsuch Rule in Class Actions? A Look at Shook and Judicial Restraint

The nomination of Tenth Circuit Judge Neil M. Gorsuch for the Supreme Court has jurists and reporters forecasting how, if confirmed, he will rule in cases raising “hot” Constitutional issues. The “hot” question for those of us who litigate class actions is how Justice Gorsuch would engage the next landmark class action, especially since he […]