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Category Archives: Defense Strategy

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Offer of Judgment to Named Plaintiff Did Not Moot Putative Class Action, According to Eleventh Circuit

Posted in Defense Strategy

Following the Supreme Court’s decision in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), lawyers have debated whether a defendant can defeat a class action by offering full relief to the named plaintiff(s), either before a class is certified, or before a motion for class certification is filed. Last week, the Eleventh Circuit… Continue Reading

Affirmative Defenses Must Be Addressed In Class Certification Order, According To Texas Court of Appeals

Posted in Defense Strategy

A recent decision of the Texas Court of Appeals in Austin (Third District) caught my eye. Not because it involved insurance; rather, it was a securities class action challenging a board of directors’ approval of a corporate transaction. See Brigham Exploration Co. v. Boytim, No. 03-13-00191-CV, 2014 Tex. App. LEXIS 9068 (Tex. Ct. App. –… Continue Reading

Statistical Sampling in Class Actions Addressed By California Supreme Court

Posted in Class Certification Standards, Defense Strategy

Back in February of 2012, I wrote a blog post about a California Court of Appeal decision addressing the use of statistical sampling in class actions.  The California Supreme Court recently granted review and affirmed the Court of Appeal’s decision that the trial court improperly allowed the case to be tried based on statistical evidence… Continue Reading

Motion to Deny Class Certification in Insurance Case Granted, in Part, By Michigan Federal Court

Posted in Defense Strategy

Insurers and other corporations defending against putative class actions often struggle with how to try to achieve an early resolution of a putative class action, and thereby reduce legal expense, when the case is not appropriate for resolution on a motion to dismiss, or a motion to dismiss is denied.  One approach is to move… Continue Reading

Use of a Settlement Offer or Offer of Judgment on the Named Plaintiff’s Claim to Defeat a Class Action: New Seventh Circuit Decision

Posted in Defense Strategy

Commentators have questioned whether, after the Supreme Court’s decision last year in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), a defendant could, by making a settlement offer or offer of judgment on a named plaintiff’s claim, render the case moot and prevent the certification of a class.  The Seventh Circuit has now… Continue Reading

Full Offer of Judgment That is Not Accepted Does Not Moot An Individual Claim, According To the Ninth Circuit

Posted in Defense Strategy

A recent Ninth Circuit decision addresses a question left open by the Supreme Court’s decision this year in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013):  Does an offer of full relief to the plaintiff under Fed. R. Civ. P. 68, which is not accepted by the plaintiff, render a case moot?  The… Continue Reading

Motions to Strike Class Allegations in Insurance Class Actions: New Middle District of Georgia Opinion is Useful to Defendants

Posted in Defense Strategy

One strategy defendants often consider at the outset of a class action is filing a motion to strike the class allegations based on the pleadings. Such a motion challenges whether the case as pled could ever be certified as a class action, similar to a Rule 12(b)(6) motion to dismiss for failure to state a… Continue Reading

Federation of Defense and Corporate Counsel (FDCC) Annual Meeting: Can Military Processes Help Defend Class Action Litigation?

Posted in Defense Strategy

I recently was elected as a new member of the Federation of Defense and Corporate Counsel (FDCC) and last week I attended my first annual meeting of that organization.  One of the presentations was by two former senior military officers from Afterburner, a consulting company that teaches businesses and professionals how they can potentially use… Continue Reading

Is An Order Modifying A Class Definition Appealable Under Rule 23(f)? Seventh Circuit Says Yes

Posted in Defense Strategy

The Seventh Circuit recently addressed an interesting issue regarding the types of appeals permitted by Rule 23(f).  In Matz v. Household International Tax Reduction Investment Plan, No. 12-8010, 2012 U.S. App. LEXIS 14771 (7th Cir. July 19, 2012), the district court had modified a previously-certified class to eliminate between 57% and 71% of the class… Continue Reading

Applying Iqbal in Insurance Class Actions: Second Circuit Affirms Dismissal of Title Insurance Complaint

Posted in Defense Strategy, Title Insurance

Several years ago, legal commentators wrote extensively about the U.S. Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which revised the standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6).  Commentators have debated the extent to which these decisions… Continue Reading

Association of Corporate Counsel Blog Post on Dealing with the Media

Posted in Defense Strategy

Fred Krebs of the Association of Corporate Counsel’s In-House Access blog published an interesting recent post on “Dealing with the Media.”  His blog post has some great pointers about what it means to speak with the media “on background,” keeping answers short, remembering that discussions with PR people within the company might not be privileged,… Continue Reading

Reducing Legal Expenses in Class Actions

Posted in Defense Strategy

An April 17 article by Jennifer Smith on the Wall Street Journal Law Blog is getting quite a bit of attention.  It discusses a survey by the Carlton Fields law firm, concluding that companies expect to see more class action filings in 2012, but to spend less money defending them.  She writes:  How, might you… Continue Reading

Class Action Involving Underinsured Motorist (UIM) Coverage: Illinois Federal Court Denies Motion to Dismiss In Case Alleging Illusory Coverage

Posted in Auto Insurance, Defense Strategy

Do insurance companies charge premiums for coverage that can never be triggered?  That is the essential allegation in Keeling v. Esurance Ins. Co., 2012 U.S. Dist. LEXIS 26998 (S.D. Ill. Mar. 1, 2012).  In my October 4, 2011 blog post, I wrote about a Seventh Circuit decision finding federal jurisdiction in this case, based on… Continue Reading

Is Notice Required to Bind Absent Class Members Under Rule 23(b)(2)? Federal Circuit Says Yes In Case Involving Judicial Salaries

Posted in Class Certification Standards, Defense Strategy

The Federal Circuit recently held that individual notice to absent class members is required to bind them to a judgment in a class action certified under Rule 23(b)(2), at least where the claims are monetary in nature.  This case is particularly significant for a defendant faced with a class action that has been certified under… Continue Reading

The Apex Doctrine on Depositions of High-Level Executives: New DRI Article Provides Insights

Posted in Defense Strategy

This month’s For the Defense magazine published by the Defense Research Institute has an interesting article by Christopher M. Tauro and Kip J. Adams entitled “Use of the Apex Doctrine.”  The article has a comprehensive survey of the law regarding protecting high-level corporate executives from unnecessary depositions, where the executive has little or no knowledge… Continue Reading

Decertification Likely Has Binding Effect, But Can Defendants Give a Denial of Certification the Same Effect?

Posted in Defense Strategy

A recent opinion by the Western District of Pennsylvania reminded me of an interesting wrinkle of class action law:  the decertification of a class that was previously certified typically has binding impact on the class members, preventing further attempts to seek certification of the same or a similar proposed class.  But as we know from… Continue Reading

Trial of Class Actions With Statistical Evidence: California Court of Appeal Follows Wal-Mart v. Dukes In Rejecting “Trial By Formula”

Posted in Defense Strategy, Trials

Issues regarding the use of statistical evidence at trial of a class action were recently addressed by the California Court of Appeal, First Appellate District, in Duran v. U.S. Bank Nat’l Ass’n, 2012 Cal. App. LEXIS 107 (Cal. Ct. App. Feb. 6, 2012).  The court concludes that the trial of an employment class action (seeking… Continue Reading