Class Action Procedure

In many privacy and other technology-related class actions, the question of whether consumers consent to the practice at issue is central.  In these cases, class action defendants have defeated motions for class certification by successfully arguing that consent is an individualized issue that is not susceptible to common proof.  And though class action plaintiffs may try and avoid this problem by excluding consenting individuals from their class definition, that solution can create new problems, including impermissible “fail-safe” classes—i.e., classes that cannot be defined until a case is resolved on the merits.Continue Reading Sixth Circuit Denies Permission to Appeal Class Certification Order Raising Questions of Consent and Fail-Safe Classes

The first Federal Rule focused specifically on multidistrict litigation—which has long been a staple of complex, high-stakes litigation—took effect on December 1, 2025, as part of the 2025 amendments to the Federal Rules of Civil Procedure. Continue Reading New Federal Rule of Civil Procedure Provides Guidance for Early MDL Case Management

An oft-litigated issue in false-advertising class actions is whether a plaintiff can show that each class member relied on the challenged statement when they made their purchasing decision.  The Eighth Circuit recently offered an example of how this issue can pose a significant roadblock to class certification in In re…

Continue Reading Eighth Circuit Ices False Labeling Class Action on Predominance Grounds

Last month in In re: Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, the Southern District of New York denied certification to a proposed class of direct purchasers who alleged that Keurig, a manufacturer of branded coffee pods and brewers, violated antitrust laws by allegedly suppressing competition from generic coffee pod manufacturers.  Although the plaintiffs offered statistical evidence suggesting that Keurig’s coffee pod prices were elevated on average, the court held that individual issues of antitrust impact predominated over common questions because Keurig directly negotiated prices with large buyers that might fully offset any increase in average prices.Continue Reading Aggregate Damages Model, List Prices Insufficient to Demonstrate Classwide Antitrust Injury, Says Federal District Court

In Cline v. Sunoco, Inc. (R&M), 2025 WL 3199871 (10th Cir. Nov. 17, 2025), the Tenth Circuit adopted the majority view that “administrative feasibility” for identifying class members is not an independent requirement for certifying a class under Federal Rule 23.  The ascertainability standard endorsed by the court requires…

Continue Reading Tenth Circuit Adopts Majority View not Requiring “Administrative Feasibility” for Ascertainability

A recent Fifth Circuit decision, Ackerman v. Arkema Inc., reinforces that Texas law does not permit cross-jurisdictional tolling, and that federal courts in the Fifth Circuit will enforce that, notwithstanding federal tolling rules for class actions.  Ackerman v. Arkema Inc., — F.4th —-, 2025 WL 3039221 (5th Cir. Oct. 31, 2025).

Following chemical explosions at Arkema’s Crosby, Texas facility in 2017, property owners filed a federal class action seeking injunctive and monetary relief. The district court certified a class for injunctive relief under Rule 23(b)(2) but declined to certify a damages class under Rule 23(b)(3). After the injunctive claims settled, nearly 800 class members filed individual suits in Texas state court seeking monetary damages.  All were filed well outside the two-year limitations period under Texas law.  The cases were then removed to federal court, and the defendant moved to dismiss on statute-of-limitations grounds.

Plaintiffs argued that the federal class action tolled the state limitations period under the rule established by the Supreme Court in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974).  Arkema responded that Texas does not recognize cross-jurisdictional tolling. The district court agreed, and the Fifth Circuit affirmed, citing two of its prior decisions. In Vaught v. Showa Denko K.K., 107 F.3d 1137 (5th Cir. 1997), the Fifth Circuit had first addressed whether Texas would adopt cross-jurisdictional tolling and concluded it would not, emphasizing that tolling rules applicable to claims brought under Texas law are grounded in state—not federal—law. Later, in Newby v. Enron Corp., 542 F.3d 463 (5th Cir. 2008), the Fifth Circuit reaffirmed that holding, rejecting arguments that tolling should apply when defendants had notice of claims or when property-related claims were involved. Both cases underscore that Texas courts have recognized tolling only for class actions filed in Texas state courts and that this rule remains binding for Texas state-law claims in federal court.

Judge Haynes dissented in part, arguing that the court should have certified the question to the Texas Supreme Court. The dissent highlighted practical concerns, noting that requiring individuals to file separate suits while a class action is pending undermines judicial efficiency and the purpose of class actions.

This decision confirms that, where state-law claims are at issue, American Pipe tolling will not override state law that does not recognize cross-jurisdictional tolling.

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Continue Reading Fifth Circuit Clarifies No Cross-Jurisdictional Tolling in Texas

In a recent decision, the Northern District of Illinois dismissed a deceptive advertising class action filed against Mondeléz International, Inc. (“Mondeléz”).  Salguero v. Mondeléz Int’l, Inc., 2025 WL 3004534, at *6 (N.D. Ill. Oct. 27, 2025).  Mondeléz, a snack food company, manufactured and distributed energy snack bars (“Zbars”) while labeling the packaging as “climate neutral certified.”  Id.  The plaintiff, allegedly purchasing Zbars under the impression that the label meant Zbars did not cause pollution, initiated a class action suit, bringing claims under California’s consumer protection statute, breach of express warranty, and unjust enrichment.  Id.Continue Reading Illinois Federal Court Dismisses Deceptive Advertising Class Action Against Snack Food Company

In its recent decision in Clippinger v. State Farm, the Sixth Circuit addressed the certification of a class in a breach-of-contract dispute over insurance valuation claims, in which the defendant contended that individualized evidence would be needed to determine whether the alleged breach caused actual monetary injury to class members.  Similar class certification issues have been addressed by several other circuits, including by the Ninth Circuit just last month. In its decision, however, the Sixth Circuit went its own way: (1) the court found that an alleged breach of contract was alone sufficient to create Article III standing, and (2) the court split from five other circuits in affirming certification of the class.Continue Reading Valuation and Standing—The Sixth Circuit Creates a Class Action Split

A court in the Southern District of New York recently dismissed a proposed class action alleging that consumers paid a premium for juice products advertised as “made simply” with “all natural ingredients,” reasoning that the plaintiff lacked standing in light of flaws in his testing allegations.  See Lurenz v. Coca-Cola…

Continue Reading District Court Requires Specific Testing Allegations in Dismissing PFAS Class Action

A divided Ninth Circuit panel recently affirmed a district court’s denial of class certification based on a lack of predominance.  See Ambrosio v. Progressive Preferred Ins. Co., 2025 WL 2628179 (9th Cir. Sept. 12, 2025).  The plaintiffs sought to represent a class of drivers asserting breach-of-contract and other related claims against an auto insurer.  The drivers alleged the insurer’s use of a “projected sold adjustment” (“PSA”) to calculate the market value of insured drivers’ vehicles after a total loss led the insurer to uniformly underestimate vehicle value, which they contended violated the terms of their insurance policies.  Agreeing with the district court’s reasoning, the Ninth Circuit held that, because the insurer’s use of the PSA did not by itself violate the terms of the policies, each plaintiff would need to adduce individual evidence to prove that the PSA had caused them measurable damages—an essential element of a claim for breach of contract under Arizona law. Continue Reading Ninth Circuit Affirms Denial of Class Certification Finding Lack of Predominance