Class Action Trends and Developments

1. Class Action Trends and Developments

2. 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 • Sufficiency of proof • Ability to calculate damages • Viability of claims *Recognizes if not decided pre-certification, not likely decided at all

3. CERTIFICATION • 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

4. 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 Misrepresentation Forum Law Hodgepodge of laws

5. 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.

6. CLASS ARBITRATION 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.