Tag Archives: class certification

Will Ninth Circuit Class Actions Force Resolution of Ascertainability Circuit Split?

“Ascertainability” in the context of civil litigation involves the identification of individuals who qualify for membership in a putative class action. Although not an explicit requirement under Rule 23, since the US Court of Appeals for the Third Circuit refused to certify a class due to difficulties in objectively and efficiently identifying class members in … Continue Reading

Seventh Circuit Revives Another Data Breach Suit — Lewert v. P.F. Chang’s China Bistro, Inc.

Plaintiffs in consumer data breach class actions have struggled to establish Article III standing. Article III standing requires an alleged ‘‘concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.’’ In Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) the … Continue Reading

Recent California Appellate Opinion Raises Issue of Concepcion’s Scope

On April 27, 2011, the Supreme Court in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), cleared the way for consumer products companies and other businesses to incorporate class action waivers into their arbitration agreements with customers.  On April 7, 2014, the Second District Court of Appeal in California affirmed the denial of a … Continue Reading

Variability in Consumer Experience Dooms Class Action

Berger v. Home Depot USA, Inc., No. 11-55592 (9th Cir. Feb. 3, 2014) This is a great decision for retailers and consumer products companies. The court affirmed a decision denying class certification, recognizing that variability in consumer experience when entering into a retail transaction makes a case inappropriate for class treatment. In Berger, plaintiff challenged … Continue Reading
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