The U.S. Supreme Court recently granted cert. in two cases of interest. And today, the Court is conferencing two others worth following because of the certification-related issues they present.
First, on June 8, 2015, the Court agreed to hear Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146. In Tyson, a FLSA case, the Eighth Circuit affirmed the district court's denial of the defendant's motion to decertify the collective action. Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th Cir. 2014). The motion relied heavily on the "trial by formula" language of Dukes. One judge found the defense arguments persuasive, and dissented. These are the questions presented, as framed in the cert. petition:
I. Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.
II. Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
The SCOTUSblog case page, with links to the cert. petition and other documents, is here.
Second, on May 18, 2015, the Court took up Campbell-Ewald Co. v. Gomez, No. 14-857, which involves "pick-off" attempts. In this case, the defendant made a full-relief settlement offer to the individual plaintiff under Rule 68 shortly after he commenced his putative class action. The Ninth Circuit held that the plaintiffs' rejection of the offer did not render his individual claims moot, nor were the class claims moot:
Gomez's individual claim is not moot. Campbell-Ewald argues that “whether or not the class action here is moot,” the individual claim was mooted by Gomez's rejection of the offer. The company is mistaken. Although this issue was unsettled until recently, we have now expressly resolved the question. “[A]n unaccepted Rule 68 offer that would fully satisfy a plaintiff's claim is insufficient to render the claim moot.” Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 950 (9th Cir.2013). Because the unaccepted offer alone is “insufficient” to moot Gomez's claim, and as Campbell-Ewald identifies no alternate or additional basis for mootness, the claim is still a live controversy.
Similarly, the putative class claims are not moot. We have already explained that “an unaccepted Rule 68 offer of judgment—for the full amount of the named plaintiff's individual claim and made before the named plaintiff files a motion for class certification—does not moot a class action.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091-92 (9th Cir.2011). Like the Pitts plaintiff, Gomez rejected the offer before he moved for class certification. Gomez's rejection therefore does not affect any class claims.
Gomez v. Campbell-Ewald Co., 768 F.3d 871, 874-75 (9th Cir. 2014) (hyperlinks added). The panel also held that these conclusions were fully consistent with the U.S. Supreme Court's post-Pitts opinion, Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013).
See the SCOTUSblog case page for links to the cert. petition and other documents. This is how the cert. petition framed the pick-off questions (there is also a third question on an unrelated substantive issue):
1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.
2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.
Finally, today the Court is conferencing two other cases of interest: Allstate Insurance Co. v. Jimenez, No. 14-910, and Dow Chemical Co. v. Industrial Polymers, Inc., No. 14-1091. If cert. is granted or denied, it would normally be announced by Monday, or alternatively, either or both cases may be relisted and considered again at a later conference.
In Allstate, a misclassification case on behalf of insurance adjusters, the Ninth Circuit affirmed the district court's order granting class certification of wage and hour claims brought under California law. Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014). The opinion discusses Dukes, Leyva, and, notably, Brinker, in concluding that class certification was properly granted under Rule 23. (For more on Leyva, see this blog post.) (I did not previously post on Jimenez, but one thing I found notable about it was its reliance on state-law framing of the certification questions by citing Brinker.)
In Dow Chemical, an antitrust case, the Tenth Circuit affirmed the district court's order granting the direct purchasers' class certification motion. In re Urethane Antitrust Litigation, 768 F.3d 1245 (10th Cir. 2014). The opinion contains a lengthy analysis of the U.S. Supreme Court's Comcast opinion. (For more on Comcast, see this blog post.)