Author Archives: Andre Mura

About Andre Mura

Andre M. Mura focuses his practice on consumers’ and workers’ rights, products liability, drug and medical devices, federal jurisdiction, and constitutional law. He has authored briefs filed in the U.S. Supreme Court and represented plaintiffs in appeals before the Ninth Circuit.

Court Certifies Liability-Only Class in Costco Frozen Berry Class Action

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Three years after Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), lower courts continue to certify classes for liability purposes only, thereby reserving consideration of damages for individual determination during subsequent phases of litigation. These courts reason that Comcast’s predominance and superiority concerns are “largely irrelevant” to this approach, which is permitted by Rule 23(c)(4). E.g., In re Deepwater Horizon, 739 F.3d 790, 817 (5th Cir. 2014); Butler v. Sears, Roebuck and Co., 727 F.3d 796, 800 (7th Cir. 2013).

A recent order granting class certification in Peterson v. Costco Wholesale Co., Inc., 2016 WL 304299 (C.D. Cal. Jan. 26, 2016), exemplifies the trend. Following a Hepatitis A outbreak in the western United States “linked to the consumption of Townsend berry mix sold to consumers at various Costco locations in early 2013,” id. at *1, individuals from nine different states filed a class action in California state court, seeking damages in part on strict liability theories. The case was then removed to federal district court, where it was assigned to Judge David O. Carter.

At the class certification stage, the Court inquired whether the use of subclasses can account for variations in state law, and whether individual inquiries, such as differences in emotional distress damages, impact the Court’s predominance inquiry.… Read more

U.S. Supreme Court to Consider Appellate Jurisdiction to Review Denial of Class Cert After Named Plaintiffs Voluntarily Dismiss Suit With Prejudice

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In an earlier post, we flagged a cert petition filed in the U.S. Supreme Court by Microsoft Corporation, asking whether federal courts of appeals have jurisdiction to review a denial of class certification after the named plaintiff voluntarily dismisses his individual claims with prejudice. The issue arises in long-running litigation brought by consumers who purchased Xbox consoles which allegedly damage discs during use.

The Supreme Court has now granted review. Interestingly, it has rewritten the question presented, presumably to make clear that it wants argument on whether there is Article III jurisdiction and statutory jurisdiction under 28 U.S.C. § 1291. As rephrased by the Court, the question now is: “Whether a federal court of appeals has jurisdiction under both Article III and 28 U. S. C. §1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.”

Now that the Court has taken this case, it is worth observing that any victory by Microsoft would be pyrrhic. Because a class was not certified by the district court, but should have been according to the Ninth Circuit; and because the voluntary dismissal with prejudice binds only the named individuals in the Baker case, other consumers could simply file another class action seeking redress for the same consumer harm.… Read more

Plaintiff’s Law Firm Asks U.S. Supreme Court To Review Order Requiring Contribution to MDL Common Benefit Fund

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The Girardi Keese Law Firm has asked the U.S. Supreme Court to decide “whether a federal court has subject-matter jurisdiction to force state court plaintiffs who have never appeared in federal court to surrender proceeds from their state court settlements to compensate counsel in federal court litigation.” Girardi Keese Law Firm v. Plaintiff Advisory Committee, No. 15-704.
 
The issue arises in multi-district litigation against GlaxoSmithKline LLC concerning its diabetes drug Avandia. According to the petition, which was filed by Paul Clement of Bancroft PLLC, Girardi Keese litigated thousands of suits in California state court, 25 of which were removed to federal court and subsequently consolidated pursuant to 28 U.S.C. § 1407. After years of litigation, the firm negotiated a global settlement for about 4,000 state court and 25 federal court clients. The steering committee in the coordinated actions in federal court then asked the district court to order GlaxoSmithKline “to deposit 7% of the settlement proceeds for each of petitioner’s state court clients into a fund designed to benefit the federal court steering committee.” The district court issued the order, and the Third Circuit Court of Appeals affirmed.
 
The Third Circuit found that Girardi Keese had signed an attorney participation agreement, which obligated it to pay 7% of any recovery into the common benefit fund in exchange for access to work product developed by the steering committee.… Read more

U.S. Supreme Court Asked to Decide Whether Plaintiffs May Appeal an Order Denying Class Certification After Voluntarily Dismissing Their Claims With Prejudice

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Say a federal district court strikes a plaintiffs’ class allegations, because it finds that individual issue predominate and a class cannot be certified. And say the court of appeals declines to review the district court’s order denying class certification under Federal Rule of Civil Procedure 23(f), despite plaintiffs’ insistence that the denial of class certification effectively ends their case, because it would be economically irrational to proceed to final judgment on an individualized basis. Can plaintiffs then voluntarily dismiss their individual claims with prejudice and appeal that judgment pursuant to 28 U.S.C. § 1291, in order to obtain appellate review of the district court’s order denying class certification?

In Baker v. Microsoft Corp., 797 F.3d 607 (9th Cir. 2015), the court, relying on prior circuit precedent, reaffirmed that a voluntary dismissal with prejudice “sufficiently affect[s] the merits of the substantive claims to constitute an appealable final judgment” under § 1291. See id. at 612 (footnote omitted); Berger v. Home Depot USA, 741 F.3d 1061, 1065 (9th Cir. 2014). The court “distinguished a stipulated dismissal without a settlement,” which “retains sufficient adversity to sustain an appeal” under § 1291, from “a stipulated dismissal with a settlement,” which does not.… Read more

Rule 23 Subcommittee Drops or Postpones Several Proposed Amendments to Rule 23

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Following its September 11, 2015 mini-conference in Dallas, the Rule 23 Subcommittee has decided to abandon or postpone consideration of several proposals to amend Rule 23. According to the subcommittee, these proposals no longer warrant immediate attention. Here are the proposals which have been put off.

The subcommittee had been considering whether to amend the class action rules to make clear that an “issue class” may be certified under Rule 23(c)(4) even when Rule 23(b)(3)’s predominance requirement is not satisfied for the claim as a whole. It had also been considering amending Rule 23(f) to authorize discretionary immediate appellate review of any issue class certification. The subcommittee has now concluded that “there is no significant need for such a rule amendment[]” because the “various circuits seem to be in accord about the propriety of such treatment ‘[w]hen appropriate,’ as Rule 23(c)(4) now says.”

Also, the subcommittee had been discussing an amendment to Rule 23(e) which would set standards for approval of settlements which include cy pres relief. This proposal generated opposition from the defense bar, which expressed concern that such an amendment would “enshrine” cy pres remedies in Rule 23 itself. Such an amendment would have made it more difficult for the defense bar to mount sweeping attacks on cy pres relief, such as the argument that cy pres awards violate due process.… Read more