Can a plaintiff represent a class without showing that there’s a feasible way to identify the absent class members? In its recent decision in Cherry v. Dometic Corp., the Eleventh Circuit has become the latest circuit to answer that question with a “maybe.” Although the court noted that the “feasibility” of identifying absent class members was relevant to the “superiority” and “manageability” considerations of Rule 23(b)(3), the court rejected the argument that proving that…

The Ninth Circuit recently determined that the mere presence of artificial trans fats in popcorn (i.e., the “butter” in butter flavored popcorn) does not create an injury that confers Article III standing. In McGee v. S-L Snacks National, a consumer brought a putative class action alleging economic and physical injuries caused by the inclusion of artificial trans fats as an ingredient in Pop Secret. The plaintiff alleged that she purchased Pop Secret at least once…

The 11th Circuit recently addressed the issue of competing or overlapping class actions, which often create problems for both the plaintiffs’ counsel and the defense. In Medical and Chiropractic Clinic, Inc. v. Oppenheim, the 11th Circuit clarified what duties class counsel owes to class representatives and the correct forum for asserting challenges by competing class counsel. Oppenheim is part of a series of class actions that related to the Tampa Bay Buccaneers’ advertising practices.…

The Paycheck Protection Program (PPP) of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which was expanded by the Paycheck Protection & Health Care Enhancement Act, provides more than $650 billion in loans for small businesses affected by the coronavirus pandemic. It includes fees for banks that make PPP loans to borrowers. But four recent cases (of more than 50 pending nationally) hold that the CARES Act does not require the banks…

You need to read Johnson v. NPAS Solutions, LLC. This recent decision from the 11th Circuit fundamentally changes the rules of obtaining approval for class action settlements. Johnson’s introduction emphasizes that the 11th Circuit is shaking up the way class actions are settled and that the court knows it: “The class-action settlement that underlies this appeal is just like so many others that have come before it. And in a way, that’s exactly the problem.…

On Wednesday, July 29, 2020, the House Judiciary Committee’s antitrust subcommittee held a widely publicized hearing in which representatives questioned CEOs from Amazon, Apple, Facebook and Google about allegedly anticompetitive business practices. This hearing had its genesis in a 2017 Yale Law Journal article by Lina Khan, which gave rise to what became known informally as the “hipster antitrust” movement. (Not coincidentally, Khan is advising Rep. David Cicilline, the chairman of the Antitrust Subcommittee, and she…