Plus Feature: Third Circuit Establishes Test For Numerosity Under Rule 23(a)(1)

While Fed. R. Civ. P. 23(a)(1), the “numerosity” requirement, is not a frequently challenged issue in many class actions, its importance cannot be ignored. Rule 23(a)(1) mandates that in order to certify a class action, the plaintiff must prove that the “class is so numerous that joinder of all members is impracticable.” While cases involving more than 40 potential class members are typically considered to satisfy this requirement, case law provides little guidance for determining whether joinder is “impracticable” in smaller potential classes. Continue reading “Plus Feature: Third Circuit Establishes Test For Numerosity Under Rule 23(a)(1)”

Coming Up This Term from SCOTUS

Author: Jeremy Gilman (former Partner at Benesch Law)

One class action-related case, so far:  Microsoft v. Baker, case no. 15-457, on certiorari from the Ninth Circuit.  The issue:  “Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.” Continue reading “Coming Up This Term from SCOTUS”

Nationwide Moves for Reconsideration Following Sixth Circuit’s revival of Data Breach Class Action

On September 26, 2016, Nationwide Mutual Insurance Co. (“Nationwide”) petitioned the Sixth Circuit Court of Appeals to reconsider its September 12, 2016 ruling that revived a class action arising out of Nationwide’s 2012 data breach.  Citing a notice of supplemental authority filed in another class action pending before the Third Circuit, Nationwide argued that rehearing en banc is necessary to resolve conflicts among the Circuits regarding the injury-in-fact and traceability requirements of Article III standing. Continue reading “Nationwide Moves for Reconsideration Following Sixth Circuit’s revival of Data Breach Class Action”

New Win for Old Spice

Author: Jeremy Gilman (former Partner at Benesch Law)

Procter & Gamble was sued this March in the Southern District of Ohio by about 180 persons claiming they had bought and were injured by applying thirteen different Old Spice deodorant products manufactured and sold by P&G.  They contended that by using those deodorants, they “suffered severe burning, rashes, irritation, discoloration, scarring, peeling of skin, and/or other injury requiring them to immediately cease using the product.”  Their 180-page, 66-count, 840-paragraph amended complaint includes breach of warranty, Magnusson-Moss, negligence, unjust enrichment, products liability and state statutory claims and seeks injunctive relief and damages, both compensatory and punitive.  On top of that, their pleading is adorned with any array of color photos of body parts, mostly armpits, and identifies their owners and their addresses.  Editor’s note:  view with caution. Continue reading “New Win for Old Spice”

Sixth Circuit Holds That Ascertainability Not a Requirement in Rule 23(B)(2) Class Actions

On October 17, 2016, in a case of first impression, the Sixth Circuit held that ascertainability is not a requirement in Federal Rule of Civil Procedure 23(b)(2) class actions.  The Sixth Circuit joined three other Circuits and reasoned that because there is no notice requirement in Rule 23(b)(2) class actions seeking injunctive or declaratory relief, the precise identity of each class member need not be ascertained. Continue reading “Sixth Circuit Holds That Ascertainability Not a Requirement in Rule 23(B)(2) Class Actions”