The Eleventh Circuit reversed and remanded class certification of most claims brought by a group of consumers who alleged their Ford Mustang Shelby GT350s were not “track ready” as advertised. The court’s decision in Tershakovec v. Ford Motor Company, No. 22-10575, — F.4th —, 2023 WL 4377585 (11th Cir. July 7, 2023), focused on the…
Tag: Fed. R. Civ. P. 23
Supreme Court Denies Certiorari in Eleventh Circuit Case Banning Class-Action Incentive Payments for Plaintiffs
The Supreme Court today denied certiorari in Johnson v. Dickenson, No. 22-389, 2023 WL 2959369 (U.S. Apr. 17, 2023), declining to review the Eleventh Circuit’s decision that incentive awards in class actions are impermissible under federal law. Johnson v. NPAS Sols., LLC, 975 F.3d 1244 (11th Cir. 2020), denial of rehearing en banc, 43 F.4th…
En Banc Court Stands by Ban on Class-Action Incentive Payments for Plaintiffs
Nearly two years after a divided three-three judge panel held that federal law prohibits “incentive payments” to named class representatives (see our previous blog post here), the Eleventh Circuit denied a petition to rehear that case en banc. Johnson v. NPAS Solutions, LLC, 2022 U.S. App. LEXIS 21455 (11th Cir. Aug. 3, 2022). The denial…
General Statistical Evidence of “Local Controversy” Held Insufficient for Jurisdiction Under Class Action Fairness Act
Can class-action plaintiffs avoid federal court by relying on general economic studies and population statistics to prove that their case should be in state court? Not in the Eleventh Circuit. In Smith v. Marcus & Millichap, Inc., 2021 WL 939184 (11th Cir. Mar. 12, 2021), the court held that “studies, surveys, and census data—which do…
Eleventh Circuit Bans Incentive Payments to Lead Plaintiffs in Class Actions
In what appears to be a first, the Eleventh Circuit recently held that federal law prohibits so-called “incentive payments” to class representatives, even as part of an agreed settlement. The court acknowledged that it was forging a new path in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244, 1248–49 (11th Cir. 2020)—identifying errors that it…
Bankruptcy Preemption/Preclusion Defense Does Not Preclude Class Certification in FDCPA/FCCPA Case
In an opinion vacating a district court order denying class certification, the Eleventh Circuit held that whether the Bankruptcy Code precludes and/or preempts the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1962 et seq., and the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.55 et seq., raised issues common to all…
Rule 23(f) Petitions to Eleventh Circuit
One question that Eleventh Circuit litigants often ask is how likely the court is to grant a Rule 23(f) petition for interlocutory review of a class certification decision. Litigants who have been on the wrong end of a class certification decision ask this question with particular urgency because an interlocutory appeal—before the trial on the…
SCOTUS Business Cases This Term (Part 1 – Class Actions)
The Supreme Court’s October term is underway, and the Court has before it several class-action cases. Frank v. Gaos concerns the permissibility of cy pres relief in class action settlements; Home Depot v. Jackson the ability of a defendant in the original action to remove the action under CAFA; and Nutraceutical Corp. v. Lambert the availability of equitable exceptions to…
Employees May Join FLSA Collective Action With Rule 23 Class Action in Same Proceeding
The Eleventh Circuit has joined the D.C., Second, Third, Seventh, and Ninth Circuits in holding that employees may bring a collective action against their employer under § 216(b) of the Fair Labor Standards Act of 1938 (“FLSA”) in the same proceeding in which they seek Rule 23(b) certification of state-law claims. Calderone v. Scott, 2016…