When a class action is filed, defendants often wonder whether tendering a payment to a class representative can defeat the claims. In a recent decision, the Third Circuit held that a mid-litigation payment to a class representative plaintiff does not moot her claim if the check is not cashed. Duncan v. Governor of the Virgin Islands, — F.4th —-, 2022 WL 3906213 (3d Cir. Aug. 31, 2022). But tendering the payment, even if the check is uncashed and even if the plaintiff claims the payment does not cover the full value of her claim, did make the plaintiff an atypical class representative and provided a basis to defeat certification of a damages class.
Andrew Leff represents clients in complex, high stakes litigation in state and federal courts, and in ADR proceedings. With a focus on complex commercial litigation and class action defense, Andrew has represented a diverse range of clients including fintech companies, electric utilities, food and beverage manufacturers, pharmaceuticals companies, and trade organizations.
Andrew has experience representing clients at all stages of litigation, from case inception through trial and appeal. He regularly leads briefing efforts (including motions to dismiss and summary judgment) as well as complex discovery processes. Andrew was also a key associate on a trial team that won total victory against the U.S. Government, as documented in The New York Times, Law360, and elsewhere. Andrew participated at every level of the pre-trial and trial phases, including a deposition of a key Government witness.
Andrew also maintains an active pro bono practice, representing (among others) disabled veterans appealing denial of the VA benefits to which they are entitled, and jail inmates seeking constitutional conditions of confinement regarding COVID-19 precautions.
In a recent decision, the Seventh Circuit answered a key question in Rule 23 commonality analyses: whether at the certification stage plaintiffs need to establish the terms of an allegedly common policy, or only its mere existence. Ross v. Gossett, — F.4th —-, 2022 WL 1421315 (7th Cir. May 5, 2022).
The putative class consisted of all Illinois Department of Corrections inmates housed in April through July 2014 at four IDOC correctional centers. They sued various IDOC officials for alleged constitutional violations stemming from prison-wide “shakedowns” executed by the defendants for purposes of sanitation and to discover and remove contraband. They further alleged that the shakedowns were conducted pursuant to a single, unified policy across all four prisons.
The Fourth Circuit recently clarified two points of law on which it had not previously spoken: (1) who bears the burden when a class member objects to a proposed settlement as unfair, unreasonable, and inadequate; and (2) whether an objecting class member can be required to release a valueless claim without compensation. 1988 Tr. for Allen Child. Dated 8/8/88 v. Banner Life Ins. Co., 2022 WL 774731 (4th Cir. Mar. 15, 2022). In a long-running dispute between a life insurance company and a class of its policyholders, policyholder 1988 Trust for Allen Children Dated 8/8/88 (the “Trust”) opted out and objected to the proposed settlement.…
Last week, a California district court dismissed a putative class action brought by serial filer Spencer Sheehan against Icelandic Provisions, Inc., the maker of an eponymous Skyr (Icelandic-style yogurt) product. The plaintiff, bringing a case captioned Steinberg v. Icelandic Provisions, Inc., No. 21-cv-5568 (N.D. Cal.), alleged that Icelandic Provisions misleads consumers into believing that its product is made in Iceland when it is actually made in New York. She pointed to the front label featuring the “Icelandic Provisions” brand name, the words “Traditional Icelandic Skyr” at the top, and a cartoon countryside with a snow-covered backdrop.…