Monthly Archives May 2015

The Eighth Circuit upheld a class settlement over the objections of six of the twenty-three class representatives.  The case involved a settlement among the NFL and nearly 25,000 former NFL players over the use of the players’ likenesses and identities, and it provided class members with two benefits: (1) the establishment and $42 million funding of the Common Good Entity, a non-profit organization charged with disbursing the money to charitable organizations or health and welfare organizations for the benefit of class members; and (2) the establishment of the Licensing Agency intended to assist class members with marketing their publicity rights.  Marshall et al. v. Nat’l Football League, No. 13-3581 (8th Cir. May 21, 2015). At the outset, the Court tackled the question of whether the settlement benefits were appropriate given constraints on certain cy pres distributions.  The Court emphasized that the Licensing Agency provided class members with a direct benefit,…

Filing an bare-bones motion for class certification alongside the class-action complaint is one tactic to avoid the mooting effect of a Rule 68 offer. But what are defendants and the courts supposed to do with such a motion and its flimsy thread-bare recitals of the Rule 23 requirements? Federal judges do not like motions lingering on their dockets longer than six months; it hurts their stats and gets reported to Washington.  See, e.g., Singer v. Illinois State Petroleum Corp., 2013 wl 2384314, at *2 (N.D. Ill. May 24, 2013) ("[T]his Court is unwilling to contemplate the prospect of shattering its unbroken record of more than three decades of reporting no 'stale' pending motions in its statutorily-required September 30 report where, as here, such purported staleness is occasioned by lawyer-caused delays rather than by this Court's failing to act on a live motion."). Instead of agreeing to an arbitrarily fast six-month class-cert…

We all know that each defendant must consent to removal, which is easy when one or a couple of defendants are in the case.  But what do you do when the plaintiff has sued everyone under the sun and the clock is ticking?   Talk about a logistical nightmare. In Griffioen (no, that's not as typo - that's how the plaintiff spells his name), the plaintiffs in this putative class action sued a lot of entities, including some railroads, some corporations, some individuals, and some municipalities, over flood damage.  The theories and allegations aren't terribly important.  What is interesting is that certain defendants sought to remove the case to federal court, and while most of the defendants either signed the notice of removal or filed their own written indication of consent, some did not.  Instead, the removing defendants represented in their notice of removal that they had contacted counsel for…

Here's a quick refresher (plus a lesson) on CAFA's local-controversy exception: a district court must decline jurisdiction when more than two-thirds of the proposed class members are citizens of the state in which the action was filed.  The two-thirds is determined as of the date of the filing of the complaint.  The party seeking remand (typically the class representative / plaintiff) has the burden of proving the exception applies. So what's the lesson? You cannot prove citizenship using solely a putative class member's last-known address.  Residency does not establish citizenship - i.e. the fact that a class member has (or once had) a residential address in Missouri does not mean that person is a citizen of Missouri. So how may class representatives meet their burden to prove CAFA's local-controversy exception?  Two ways: submit affidavit evidence or statistically significant surveys showing two-thirds of the class members are local citizens, or redefine the class as only…

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