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ON THE RADAR

Bricker & Eckler's multidisciplinary Class Action Litigation Group, with substantial experience in defending class action disputes, is positioned to help you respond effectively when facing a class action complaint.

This resource page highlights class action cases on our radar both in Ohio and federal courts, and includes a comprehensive array of resources to help you stay on top of upcoming decisions and issues likely to affect your business.

For more information, please contact any member of Bricker & Eckler’s Class Action Team and visit our ClassActionOhio Blog and our FinancialServicesLaw Blog.


Index to Resources
Cases and Trends We Are Watching
     Cases in the U.S. Supreme Court
     Cases in the Ohio Courts
     Wal-Mart v. Dukes Scoreboard
     Trends and Updates in No-Harm Class Actions
     Trends in Arbitration & Class Action Waivers
     Trends in Analyzing Class Definitions
     Class Action Trends in the Banking Industry
     Trends in FLSA Collective Actions
Class Action Procedure
Damages, Settlements and Fees
Discovery
Miscellaneous Cases


Cases and Trends We are Watching

An examination of important class action cases and trends affecting class action litigation.


Cases in the U.S. Supreme Court
A look at important class action cases that may to be decided by the U.S. Supreme Court this session and a few pending certiorari writs.

Class Counsel Files Brief Opposing Certiorari in Whirlpool Class Action
December 2012
Update on the status of the certiorari request in Whirlpool Corporation v. Glazer from the 6th Circuit Court of Appeals.


Cases in the Ohio Courts
A look at important class action cases that have been or will be decided by the Ohio courts

Stammco: A Primer on the New Era of the Ohio Class Action
November 2013
Analysis of the Ohio Supreme Court's decision in Stammco, the first of three cases addressing Civil Rule 23 and holding that federal law is persuasive authority in interpreting Ohio Rule 23.

Ohio Consumer Class Actions No Longer Mired in (Low-) Tar Pit?
May 2013
In light of the recent decision in Phillips v. Philip Morris Companies Inc., class action lawsuits alleging violations of consumer sales and deceptive trade practices laws are likely to become much less popular in Ohio.

Ohio Supreme Court Hears Oral Argument in State Farm Class Action
March 2013
Bulletin on the oral argument before the Ohio Supreme Court in a case action certification case in which the issue is whether there should be a consideration of merits issues at the class certification stage.

Ohio Supreme Court Hears Oral Argument in State Farm Class Action
March 2013
Bulletin on the oral argument before the Ohio Supreme Court in a case action certification case in which the issue is whether there should be a consideration of merits issues at the class certification stage.


Wal-Mart v. Dukes Scoreboard
Monitoring cases to explore whether Wal-Mart is yielding consistent results.

Size Doesn’t Matter: Commonality and the Shrinking Class in Dukes v. Wal-Mart
August 2013
A case discussion involving class certification denial on the basis of lack of commonality among class members.

Comcast Corp. v. Behrend: The Supreme Court Reaffirms Class Certification Basics
April 2013
Discussion of the U.S. Supreme Court decision in Comcast Corp. v. Behrend and the application of class certification principles.

Legislation Introduced to Nullify Impact of Wal-Mart v. Dukes in Employment Discrimination Cases via Group Actions
June 2012
One year after the Supreme Court’s decision in Wal-Mart v. Dukes, legislation intended to reverse the impact of Dukes on class certification decisions in employment discrimination cases brought in federal court has been introduced.

Will the Ohio Supreme Court Visit Aisle 23 at Wal-Mart?
May 2012
Discussion of two cases that raise fundamental challenges to class action law in Ohio by asking the Ohio Supreme Court to affirmatively adopt Wal-Mart and its analytical principles.

Certification Battle in Ohio MERS Class Action Heats Up
May 2012
Discussion of the dispute over class certification in Ohio MERS class action case.

Ohio Supreme Court Asked to Examine Ford Motor Credit Class and Apply Wal-Mart Stores, Inc. v. Dukes
April 2012
Bulletin on a potential Ohio Supreme Court case presenting the Court with the opportunity to decide whether it will affirmatively adopt and apply the United States Supreme Court’s decision in Wal-Mart v. Dukes as the analytical standard for determining whether a class may be certified under Ohio law.

Sixth Circuit Vacates Class Certification Based on Preclusion, Interprets Wal-Mart
February 2012
Discussion of a 6th Circuit Court of Appeals decision which vacated the lower court's class certification based upon preclusion due to an approved settlement.

Kentucky District Court's Denial of Class Certification in Mortgage Lending Case Provides Numerous Lessons for Class Action Defendants
January 2012
Discussion of In re Countrywide Financial Mortgage Lending Practices Litigation, another example of a district court within the 6th Circuit denying class certification under the principles of Wal-Mart.

Ham v. Swift Transp. Co., Inc.: What Defense Counsel Can Learn From A Class Certified Under Wal-Mart
December 2011
Analysis of Ham v. Swift which underscores the point that thoughtful application of the Wal-Mart principles does not foreclose class certification as some have predicted.

Hog Nuisance Certified: Does it Pass the Wal-Mart Smell Test?
November 2011
Discussion of the legacy of Wal-Mart v. Dukes as the lower courts apply the decision and determine how, if at all, prior precedent can be harmonized.

Haynes v. Planet Automall, Inc.: A Consumer’s Uncommon Story
August 2011
Discussion of a New York District Court decision that provides a thoughtful analysis of a consumer class action claim and the question of commonality.

Class Dismissed: Pipefitters Steamed
August 2011
The 6th Circuit Court of Appeals has reversed an order certifying a class of hundreds of multi-employer trust funds asserting fiduciary claims arising under the Employee Retirement Income Security Act.

U.S. Supreme Court Tightens the Reins on Class Action Certification
June 2011
Discussion and analysis of a U.S. Supreme Court's decision on class action certification.


Trends and Updates in No-Harm Class Actions

Lack of Injury Sinks Class Over Tainted Water Supply
February 2013
Discussion of the recently overturned Preble County Court of Common Pleas' decision to certify a class in a highly disputed case pertaining to the water supply for the Village of Camden.

"Trivial Harm" Class Actions and the de minimus Doctrine
March 2012
Discussion of a federal district court cases that takes a hard line against what might be described as "trivial harm" class actions.

Class of Ohio Insureds Lacks Standing Because of Speculative Injuries
February 2012
Discussion of an Ohio case in which the plaintiff class damage claims were too tenuous to pass constitutional muster.

California Class Action Over Loss of Server Drives Storing Personal and Medical Information Dismissed For Lack of Standing
February 2012
Discussion of a California class action case dismissed for lack of standing on the ground that the plaintiffs did not assert they suffered any injury, only a threat of injury.

No Harm, No Class: Damage Element Still Standing in Sixth Circuit
September 2011
The Sixth Circuit has joined other federal circuits in requiring putative class plaintiffs to plead the elements of causation and damages or face dismissal of their class allegations.


Trends in Arbitration & Class Action Waivers

U.S. Supreme Court Provides a Blueprint to Congress on How to Ban Contractual Arbitration Provisions in Consumer Contracts
January 2012
Discussion of the U.S. Supreme Court decision in CompuCredit v. Greenwood upholding arbitration agreements unless Congress has specifically ruled otherwise.

Resources on the CompuCredit v. Greenwood Case
A collection of resources including briefs, orders, oral argument transcript and related articles on First CompuCredit v. Greenwood decided by the the U.S. Supreme Court in January 2012.

Concepcion, Collective-Arbitration Waivers, and the Business of Insurance: Arkansas Supreme Court Says the McCarron-Ferguson Act Reverse Preempts the FAA
December 2011
Article discussing a possible exception to the states' limited power to enforce arbitration provisions and class action waivers in consumer contracts.

Can Companies Require Consumers to Sign Arbitration Agreements and Class Action Waivers?
October 2011
Pending before the U.S. Supreme Court, the latest case to be decided by the Supreme Court affecting arbitration agreements in consumer contracts. This case may again explore the scope of the Federal Arbitration Act and provide further guidance regarding the availability of arbitration and class action waivers to businesses servicing consumers.

U.S. Supreme Court Holds Arbitration Agreements Do Not Have To Allow Classwide Arbitration
April 2011
The U.S. Supreme Court has ruled that the Federal Arbitration Act does not require arbitration agreements to allow class-action arbitration of claims in order to be enforceable.


Trends in Analyzing Class Definitions

Third Circuit Rules That Rule 23 Ascertainability Element Requires Proof and Rigorous Analysis
June 2014
Discussion of the Third Circuit’s decision in Carrera v. Bayer Healthcare Corp. regarding the ascertainability requirement in class certification.

Fax Class Has a Blast, Still Standing
April 2014
Discussion of a Seventh Circuit order denying interlocutory appeal of an order granting class certification in Chapman v. Wagener Equities, Inc.

Lack of Injury Sinks Class Over Tainted Water Supply
February 2013
Discussion of the recently overturned Preble County Court of Common Pleas' decision to certify a class in a highly disputed case pertaining to the water supply for the Village of Camden.

Fail-Safe Definition Dooms State Wage And Hour Class
January 2012
Fail-safe class definitions are a hot topic. Once treated as little more than a formality, there is increasing judicial awareness that a flawed class definition may reveal flaws in the class itself.

Heads I Win, Tails You Lose: Fail-Safe Class Definitions
September 2011
Analysis of the first case from the Sixth Circuit to expressly address the fail-safe class, which is defined as a class that requires a decision on the merits of a claim in order to determine who is within the class.


Class Action Trends in the Banking Industry and Financial Services Industry

Sixth Circuit Vacates Class Settlement, Applies New “Preferential Treatment” Test
April 2013
Review of a 6th Circuit Court of Appeals decision holding that the fairness of a class settlement must now take into account a new “preferential treatment” test.

United States District Court for the Northern District of Ohio Addresses National Banking Act Preemption
December 2012
Discussion of a federal district court case the court ruling on preemption issues pertaining to the Ohio Retail Installment Sales Act and the Ohio Uniform Commercial Code insofar as they pertain to motor vehicle repossession.

Putative Class Action Against MERS Survives Dismissal: Pennsylvania Recording Statute Held to Be Mandatory
November 2012
Bulletin on a federal district court decision finding that a putative class action against MERSCORP, Inc. and Mortgage Electronic Registration Systems, Inc. for failure to record mortgage assignments survives Rule 12(b)(6) dismissal.

Certification Battle in Ohio MERS Class Action Heats Up
May 2012
Discussion of the dispute over class certification in Ohio MERS class action case.

No Class, No Problem: Discriminatory Lending Actions in the Wake of Wal-Mart v. Dukes
January 2012
Comparison of recent decisions out of Kentucky and California reinforcing the lesson from Wal-Mart v. Dukes that statistical significance is not a substitute for demonstrating Rule 23 commonality, with Countrywide’s recent massive settlement with the government, illustrating that Dukes is not a panacea for lending institutions concerned about the growing wave of discriminatory lending litigation.

Individual Inquiry Dooms Class Certification
December 2011
Discussion of a case in which a district court declined to certify a class in which the class representative alleged that a bank failed to properly identify the nature of fees deducted from the class members’ banking accounts.


Trends in FLSA Collective Actions

Genesis Healthcare Corp. v. Symczyk: FLSA Collective Action May Be Mooted by Full Offer of Judgment
April 2013
Discussion of recent Supreme Court opinion issued in Genesis Healthcare Corp. v. Symczyk.

How Does Your Timekeeping System Automatically Deduct Time for Meal Periods?
April 2012
Cautionary article about the Fair Labor Standards Act and a class action lawsuit challenging the practice of making automatic time deductions for employee meal breaks.

How Costly Can FLSA Collective Actions Be? . . . Very
January 2012
Bulletin about a federal district court proposed $99 million settlement of a wage and hour collective action against Novartis Pharmaceuticals Corp.

An Overview of the FLSA "Collective Action"
January 2012
Discussion of collective action lawsuits under the Fair Labor Standards Act and tips to employers for forestalling them.


Class Action Procedure

CAFA’s Amount in Controversy Requirement Causes Plaintiff to Fall on Her Own Sword
November 2013
Analysis of Norris v. People's Credit Co., Inc., which illustrates why you may want to remove a class action to federal court even though you will have to establish that the claim is worth more than $5 million.

Sixth Circuit Holds That Rule 68 Offer to Class Representative Does Not Moot Class Claims
June 2013
Bulletin on a 6th Circuit decision holding that a defendant's pre-certification offer of complete relief to the class representative does not necessarily moot the class action claims.

Choice of Law Decision Leads to Dismissal of State False Advertising Claims in Class Action Against General Mills
November 2012
Discussion of a case illustrating why nationwide classes based purely on state law claims can be ill-suited for aggregated treatment.

New Jersey Home Lending Class Action: Remand Denied, Case Dismissed
September 2012
Discussion of a class action suit barred by New Jersey’s entire controversy doctrine requiring parties to bring all claims relevant to the underlying controversy in one legal action.

Court Says No Way to Cy Pres: "Gift" Stricken From Class Action Settlement
September 2012
Discussion of the cy pres doctrine in class action lawsuits and a recent federal district court case striking down a cy pres provision in an agreed case action settlement.

Cy Pres and Class Action Settlements: Giving Away Other People’s Money
June 2012
Discussion of unclaimed funds in class action litigation and suggestions for addressing the question of disposition of unclaimed funds.

Sixth Circuit to Consider Whether Pre-Certification Offer of Complete Relief to Plaintiff Requires Dismissal of Case
June 2012
Bulletin on a pending 6th Circuit case and review of the other circuits' decisions as to whether a defendant’s pre-certification offer of complete relief to plaintiff requires dismissal of a class action lawsuit.

EEOC’s Attempt to Maintain Sexual Harassment Class Action Thwarted: After Five Years of Litigation and $4.5 Million in Legal Fees for the Employer
March 2012
Bulletin on the 8th Circuit Court of Appeals decision dismissing a sexual harassment class action due to EEOC's various procedure failures.

Threshold Motions in Class Action Litigation
White paper delivered by Bricker & Eckler litigation chair Drew Campbell before the Ohio State Bar Association in October 2011.


Damages, Settlements and Fees

Genesis Healthcare Corp. v. Symczyk: FLSA Collective Action May Be Mooted by Full Offer of Judgment
April 2013
Discussion of recent Supreme Court opinion issued in Genesis Healthcare Corp. v. Symczyk.

The End of Incentive Agreements for Plaintiffs?
October 2012
Discussion of a recent 9th Circuit Court of Appeals decision that calls to task the unethical behavior of a class action counsel.

"U.S. Supreme Court to Decide Whether a Class Action Fairness Act Loophole Should be Closed
September 2012
Discussion of a pending U.S. Supreme Court concerning the Class Action Fairness Act jurisdictional threshold and stipulated damages.


Discovery

"Plaintiffs Should Pay for the Discovery They Seek" Prior to Class Certification
August 2012
Discussion of a federal district court case ordering the class action plaintiffs to pay, in advance, the whole cost of the discovery they seek prior to class certification.

Lesson of Pippins v. KPMG: “Chutzpah” Can Be Costly, Especially in Large Cases Before the Southern District of New York
March 2012
Article discussing the judicial forward position among jurisdictions nationally in punishing large corporations with broad and expensive preservation requirements.

A Grim Look Inside the E-Discovery Problem
December 2011
Article on the dilemma of extensive discovery involved in complex class action litigation.

E-Discovery Spoliation Sanction Standards in Ohio State and Federal Courts: Differing Culpable Mental States
November 2011
Discussion and analysis of the No. 1 E-Discovery issue vexing businesses and other organizations today - how far to go in preserving evidence for litigation.


Miscellaneous Cases and Trends

An Environmental Class Action Complaint: Bell v. Cheswick Generating Station
October 2013
Bulletin on the class action complaint brought against GenOn Power Midwest by individuals of the surrounding neighborhood.

HO, HO . . . OHH! A Cyber Monday Data Privacy Class Action Review
November 2012
On Cyber Monday, how secure is the personal information you share with website? A review and analysis of administrative and judicial reports and cases.

With Fracing Comes Litigation: What Ohio Courts Can Expect As Horizontal Drilling and Hydraulic Fracturing Begin In Ohio
November 2011
A survey of litigation, from lease disputes to personal injury claims, arising from hydraulic fracturing in Ohio and across the country.

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