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Supreme Court refuses to deny use of “representative evidence” to certify a class

Faced with what defense lawyers hoped would be another arrow in their quiver to fight class certification, the Supreme Court refused to slam the door on the use of “representative evidence” in proving predominance under Federal Rule of Civil Procedure 23(b)(3). Instead it held that, in certain cases, “representative evidence” – evidence representative of a large group but not necessarily of any member of the group – can be used to demonstrate class-wide liability. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146. The decision, though, should not make the plaintiffs’ bar cheer too much, or the defense bar overly weepy.…

Avoiding data disclosures mid-litigation: a lesson from the U.S. Women’s National Soccer Team

Have you ever wanted to email Abby Wambach or Alex Morgan on their personal email accounts? If so, then last week may have been your lucky week. According to a recent report by the New York Times, the United States Soccer Federation (US Soccer) filed an unredacted complaint in its labor litigation against the US Women’s National Team that included the addresses of 28 players and personal email exchanges between some of  the most famous athletes on the team.…

Is the use of statistical averages appropriate when certifying a Rule 23(b)(3) damages class?

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Tyson Foods, Inc. v. Bouaphakeo is the latest in a series of cases to go before the Supreme Court on issues pertaining to the proper adjudication of class actions. Oral argument was heard on Nov. 10 and Jay and Porter Wright colleague Jetta Sandin attended. In this podcast, they share their impressions of how the argument went and what seemed to interest the Justices the most.…

Lawyers: In a class of their own

Ever wonder how many lawyers can fit into one courtroom? Judge Catherine Perry of the U.S. District Court of the Eastern District of Missouri just may find out. On July 14, Judge Perry granted a motion to certify a class made up of lawyers in Downing v. Goldman Phipps PLLC.[1] Although plaintiffs have not made clear exactly how many lawyers will be in the class, they argued in their class certification briefing that there are more than 33 law firms and over 100 lawyers in the potential class.

What started it all, you ask? It is pretty simple: …

Managing post-data breach litigation just got harder

Data breaches are messy stuff, no doubt about that. They consume a huge amount of corporate resources, damage a company’s goodwill and can cost a lot of money. No real news there. And while the technological challenges in preventing, and responding to, data breaches are ever-changing – fueling the booming cybersecurity industry – the corporate response to a data breach is fairly standardized. Basic steps include (not necessarily in this order):

  • Convene response team, including IT, HR, legal and crisis management, among others (you do have a response team, right? If not, let’s talk)
  • Figure out what happened, including whether
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