Enforcing Foreign Judgments in England and Wales: How to Avoid Stumbling Over Jurisdictional Hurdles
Enforcing foreign judgments in England and Wales is not always straightforward, especially for those countries where there is no reciprocal enforcement regime. However, the recent case of Shovlin v Careless and Others [2024] EWHC 324 (KB) clarifies the legal concepts underpinning this area and provides practical guidance for litigants hoping to successfully enforce US judgments in England and Wales.
Shovlin v Careless and Ors
The High Court’s decision in Shovlin v Careless and Ors concerned enforcement in England of a default judgment granted against defendant companies by the Superior Court of the State of California. The case explores the procedure for enforcing foreign judgments in England and Wales and the concept of voluntary submission in relation to jurisdiction.
The California proceedings were initiated in 2013 and concerned alleged fraud and defamation. The underlying dispute arose from events that mainly took place in 2008 between the claimant and the first to fifth defendants – English companies in well-known price comparison website business Money Expert Group. The claimant requested that judgment be given in default, as the defendants had failed to file a defence. At a “prove up hearing” to assess damages in 2019, the defendants’ lawyer made a “special appearance”, arguing that the case should be dismissed as they had not complied with the five-year rule. Under California law, civil proceedings should be brought to trial within five years of the action being commenced.
However, the California court was not persuaded by the defendants and ultimately granted default judgment in the claimant’s favour for $10,066,353 (the US Judgment). Following this, in October 2021, the claimant, a UK citizen who had resided in the United States for years, issued proceedings in the courts of England and Wales to enforce the judgment debt at common law.
How are foreign judgments enforced in England and Wales as a matter of common law?
The common law regime is the default regime for countries where there is no applicable treaty, statute or convention providing for enforcement. To be enforceable at common law, a judgment must be:
Final and conclusive in the court which pronounced it.
For a sum of money, but not for a fine, penalty or for taxes. Non-monetary relief is therefore not capable of enforcement through the common law regime.
On the merits of the claim. In accordance with criteria laid down by Lord Brandon in The Sennar No 2 [1985] 1 WLR 490, a decision on the merits must establish certain facts as proved (or not in dispute), state what the applicable principles of law are and find a conclusion regarding the effect of the principles on the facts of the case in hand.
Have been established as the appropriate jurisdiction. The foreign court must have established proper jurisdiction over the defendant in accordance with English private international law. Broadly, this means that the foreign court must have jurisdiction on a territorial or consensual basis. The original court will be deemed to have had territorial jurisdiction if the debtor was present in the foreign country when the proceedings were commenced, and consensual jurisdiction if the debtor agreed to the relevant jurisdiction, voluntarily appeared in the proceedings, or otherwise submitted to the foreign jurisdiction.
Defences to enforcement include that the judgment was obtained by fraud; the judgment is contrary to English public policy; the defendant did not have a fair opportunity to be heard; and the judgment is inconsistent with a prior judgment on the same subject matter and between the same parties.
The Enforcement Proceedings
In Shovlin, the claimant sought to enforce the US Judgment at common law (there being no relevant treaty or statute providing for enforcement of a US Judgment). It was common ground that the US Judgment was a final and conclusive judgment on the merits for a definite sum of money. The critical issue for determination before the High Court was whether the defendants had voluntarily submitted to the California court’s jurisdiction by making a special appearance at the prove up hearing. The claimant argued that the defendants’ appearance and participation could constitute an implied submission to the California court’s jurisdiction. The defendants maintained that they had only made the special appearance to contest jurisdiction and had therefore not made a general appearance which could imply submission to the jurisdiction.
Rejecting the claimant’s arguments, the High Court concluded that the defendants had not voluntarily submitted to the California court’s jurisdiction. As a result, the Court dismissed the case and ruled that the California judgment could not be enforced in England. The Court concluded that submission to the jurisdiction required the unambiguous waiving of objection to the California court’s jurisdiction and in this case the defendants’ attendance at the prove up hearing did not constitute such a waiver. Instead, the defendants had maintained their position that they did not recognise the California court’s jurisdiction to hear and determine the claim and had not unequivocally represented that objection was not being taken to that jurisdiction.
Key Takeaways
The Shovlin decision demonstrates that enforcing foreign judgments in England and Wales does not come without its challenges and not every foreign judgment is enforceable. It is necessary to scrutinise the foreign judgment, and certain underlying facts, at an early stage to ensure the requirements for enforcement can be met.
When considering whether jurisdiction was established in the foreign proceedings, the presence or submission of the defendant is often determinative. As highlighted by the decision in Shovlin, this can include appearing in the foreign court without contesting jurisdiction. If an appearance is necessary, then it should be made clear that jurisdiction is disputed in order to preserve this position at a later stage.
However, submission to a certain jurisdiction can also include agreeing to the jurisdiction in a contract. Therefore, it is important to check any contractual provisions relating to jurisdiction. If a particular court is specified, which is different from the foreign court that gave the judgment being enforced, then that judgment may not be enforceable.
Whilst it doesn’t appear to have been a significant in Shovlin, whether a defendant is given proper notice of any foreign proceedings can also impact the decision to permit enforcement in England. If a defendant is not given proper notice and has not had a fair opportunity to present their case, then it’s unlikely that any subsequent judgment from the foreign court will be enforceable.
Accordingly, if foreign proceedings are initiated with a view to enforcing any subsequent judgment abroad, litigants should consider, at the outset with their legal advisors including those in the jurisdiction where enforcement will be sought, the requirements that the judgment should meet for it to be successfully exported.
The LWDA: There’s a New Sheriff in Town
In a sharply worded notice, the Labor & Workforce Development Agency (LWDA) recently demanded that a plaintiff-side law firm amend over 100 Private Attorneys General Act (PAGA) notices it had filed. The LWDA warned that failure to amend would risk a finding that they are insufficient to satisfy PAGA’s administrative notice requirement.
Before an allegedly “aggrieved” employee can commence a PAGA lawsuit, the employee must give written notice to the LWDA and the employer of the specific labor code provisions alleged to have been violated, including the facts and theories to support the alleged violations. This pre-litigation notice obligation has been described as an “administrative exhaustion” requirement.
The LWDA’s letter explains that a PAGA notice must include sufficient factual detail to apprise both the LWDA and the employer of the nature of the violations alleged. The purpose of this requirement is twofold. First, the LWDA needs enough specifics to intelligently assess the seriousness of the alleged violations and determine whether to devote government resources to an investigation. Second, the employer receiving the notice needs enough information to understand the nature of the violations, so it may decide whether to “fold or fight.” Importantly, none of this is new—this has always been the standard.
According to the LWDA, the PAGA notices this law firm filed, which the LWDA characterized as “boilerplate,” generally failed to demonstrate any applicability or relevance to a particular claimant, or their unique circumstances in terms of their employment with their current or former employee in any specific case. The LWDA commented that, based on a sampling of the notices, they appeared to be a “template form” prepared without regard to any individual claimant’s particular experiences or employment with their respective employer.
The LWDA then directed the law firm to amend over 100 notices it had filed. The LWDA commented that absent amendment, the notices appeared insufficient to satisfy PAGA’s administrative notice requirements. The LWDA directed that the amended notices set forth specific violations each particular claimant personally suffered and describe the particular facts and theories supporting the specific violations in each case.
While the LWDA pointed to the PAGA reforms enacted last year as evidence of a legislative intent to increase its oversight of PAGA matters, one has to wonder whether a trial court ruling about which we wrote last year, Whose Case Is It Anyway? Trial Court Orders State of California to Pay Court Costs in PAGA Action, might have also inspired the LWDA. In that case, an Alameda Superior Court judge awarded costs to a victorious employer in a PAGA matter and against the LWDA. That matter is now on appeal.
With the LWDA seemingly becoming more involved in reviewing PAGA filings, it remains to be seen how this may impact PAGA litigation in California.
NO LOGS FOR YOU: Court Declines to Require Privilege Log for Withheld Communications.
I have a fascinating tidbit from a TCPA discovery dispute.
In a recent decision on a motion to compel, a defendant was not required to produce purported communications between its attorneys and class members, or a “privilege log” thereof.
Taking a quick step back, Federal Rule of Civil Procedure 26(b)(5)(A)(ii) generally requires that parties withholding information based on attorney-client privilege or the work product doctrine “describe the nature of the documents, communications, or tangible things not produced or disclosed.” This description, generally known as a “privilege log,” was ultimately not required by a magistrate judge in Walston v. Nat’l Retail Solutions, Inc. d/b/a NRS Pay. No. 24 C 83, 2025 WL 580518, *6 (N.D. Ill. Feb. 21, 2025).
In Walston, the plaintiff wanted all records of communication between the defendant or its counsel and potential class members. Id. at *4. This lead to a motion to compel by the plaintiff and two interesting disputes regarding plaintiff’s discovery requests: (1) whether plaintiff was entitled to records of communication between defendant and potential class members and (2) whether plaintiff was entitled to records of communication between defendant’s counsel and potential class members.
Regarding the first dispute, the defendant contended that it had not communicated with class members—and that any such communications were made by its counsel. Id. at *5. The court agreed that documents that the defendant never possessed—i.e., because their counsel (probably) had the communications and never explicitly gave them to the defendant—could not be compelled by a discovery request. Id. at *6.
However, it is worth noting that, if the defendant had communicated with potential class members, that information would have been discoverable. Id. at *5.
On the second dispute as to communications between defendant’s counsel and potential class members, the defendant again asserted that it never had those communications. Id. at *6. Further, to the extent that the defendant communicated with its counsel regarding those communications, the defendant asserted attorney-client privilege and the work product doctrine. Id. The plaintiff requested a privilege log of withheld communications, and the defendant argued that documents created after a lawsuit is filed are presumed privilege and thus not subject to a privilege log. Id. at 5.
The court noted an emerging trend in which courts are not enforcing strict adherence with Rule 26(b)(5)(A)(ii) and thus not requiring a privilege log for withheld communication between a client and their counsel that occurred after litigation has commenced. Id. at 5 (citing Rayome v. Abt Elecs., 2004 WL 1435098, at *4 (N.D. Ill. Apr. 3, 2024)).
That is the key takeaway from this case: the promising view that privilege logs are not required for communication between counsel and their client in litigation matters. Privilege logs can be burdensome and, in some cases, just as damaging as producing the privileged information.
More updates are to come, as we see how courts apply this emerging trend!
DOJ Reform on Collision Course: EDNY’s Netflix ‘Evidence’ and FBI Misconduct Under Scrutiny
As the Department of Justice undergoes a seismic shift under the Trump administration, prosecutors in the Eastern District of New York (EDNY) find themselves at the center of controversy over the prosecution of OneTaste co-founder Nicole Daedone and former sales leader Rachel Cherwitz. The case, which invokes human trafficking laws against meditation instructors, is emerging as a key test of the DOJ’s evolving priorities and its commitment to FBI reform.
The government’s attempt to introduce content from a Netflix documentary as trial evidence—journal entries created specifically for the streaming platform’s 2022 production—has already drawn scrutiny, particularly as the film predated the indictment by only a few months. With allegations of FBI misconduct also mounting, this prosecution may soon face the same intense DOJ oversight that recently rocked the Southern District of New York (SDNY).
Mounting Evidence of FBI Misconduct
A formal complaint filed with multiple federal oversight bodies by OneTaste’s legal team—led by former senior DOJ prosecutor Paul Pelletier—alleges a “pervasive pattern of prejudicial investigatory misconduct.” The 36-page document details allegations against FBI Special Agent Elliot McGinnis, including:
Participation in Netflix productions while investigating targets
Instructing witnesses to delete evidence
Using personal email accounts to evade oversight
Filing misleading affidavits
Suppressing Brady material
Illegally obtaining and utilizing attorney-client privileged materials
Despite defense motions for dismissal and requests for an evidentiary hearing into the FBI’s conduct, EDNY trial judge Diane Gujarati has thus far declined to intervene. However, with the expected confirmation of incoming FBI Director Kash Patel, this case could soon find itself under heightened scrutiny. Patel, whose nomination cleared the Senate Judiciary Committee on February 13, has signaled a commitment to rooting out political bias within the bureau. Senator Chuck Grassley, in supporting Patel’s confirmation, characterized the FBI as being “badly infected with political decision-making” and emphasized the need for transparency and accountability.
The SDNY Shake-Up and Its Implications for EDNY
The upheaval in the SDNY provides a stark warning to EDNY prosecutors. On February 10, Acting Deputy Attorney General Emil Bove ordered SDNY to dismiss corruption charges against New York City Mayor Eric Adams, citing two primary concerns: improper interference with Adams’ 2025 reelection campaign and the diversion of prosecutorial resources away from violent crime and immigration violations.
This decision ignited a firestorm within SDNY, culminating in the resignation of Acting U.S. Attorney Danielle Sassoon after she appealed directly to Attorney General Pam Bondi. DOJ officials responded swiftly, accusing Sassoon of pursuing a “politically motivated prosecution” based on “aggressive” legal theories. The Adams case was subsequently reassigned to DOJ headquarters in Washington, D.C., and seven SDNY prosecutors were terminated in the fallout.
SDNY’s long-standing reputation for operating with relative independence—often referred to as the “Sovereign District of New York”—appears to be a thing of the past under the current DOJ. EDNY prosecutors, who have historically enjoyed similar autonomy, now face the prospect of increased oversight as they navigate this high-profile case.
The Human Trafficking Paradox
On February 5, Attorney General Bondi issued directives instructing federal prosecutors to focus on “the most serious, readily provable offenses,” emphasizing illegal immigration, transnational crime, and human trafficking. Yet, as this directive takes effect, EDNY prosecutors continue to invest significant resources in a novel, single-count forced labor conspiracy case against wellness educators under the Trafficking Victims Protection Act (TVPA). The government’s untested theory of “coercive control” as a form of trafficking has drawn criticism from legal experts, who argue that it blurs the distinction between social pressure and criminal coercion.
The case against OneTaste presents a paradox: at a time when the DOJ is pivoting towards dismantling actual human trafficking operations, EDNY’s six-year-long pursuit of this prosecution may soon come under question. The precedent set by the SDNY shake-up suggests that DOJ leadership is willing to intervene aggressively when a prosecution is deemed misaligned with national priorities.
A Trial Under Increasing Pressure
With jury selection set to begin on May 5, 2025, the ground beneath the OneTaste prosecution is shifting rapidly. Judge Gujarati’s refusal to schedule additional pre-trial conferences suggests confidence in the case, but the broader DOJ realignment paints a different picture.
The question now is not just whether this case will proceed to trial, but whether EDNY prosecutors will maintain their current course in the face of growing federal scrutiny. As the DOJ consolidates control over its regional offices and refocuses its priorities, EDNY must weigh its prosecutorial independence against the new realities taking shape in Washington. If SDNY’s recent upheaval serves as any indication, the days of unchecked autonomy for federal prosecutors in New York may be numbered.
U.S. v. Cherwitz, et al., No. 23-cr-146 (DG) (E.D.N.Y.)
https://natlawreview.com/article/netflix-content-becomes-federal-evidence-ednys-onetaste-prosecution-faces-scrutiny
OIG complaint regarding FBI Agent Misconduct
Opioids and Common Law Liability for Indirect Economic Harm
Earlier this month, the Law Court weighed in on a hot-button legal issue—the potential liability of opioid manufacturers for the costs of the drug epidemic. In Eastern Maine Medical Center v. Walgreen Company, the Law Court affirmed a decision granting a motion to dismiss hospitals’ claims for negligence, public nuisance, unjust enrichment, fraud and negligent misrepresentation, fraudulent conspiracy, and civil conspiracy. The Court’s opinion reinforced several important principles circumscribing the scope of potential liability for economic harm under the common law.
The basic theory of the complaint was that various opioid sellers (pharmaceutical manufacturing and sales companies, and retail pharmacies and distributors) had created an epidemic of opioid misuse that required the plaintiff hospitals to incur high costs that were only partially reimbursed.
Before reaching the merits of the complaint, the Law Court first addressed Maine Rule of Civil Procedure 8, which requires a “short and plain statement” of a plaintiff’s claim. The complaint was anything but short—it was 509 pages, with over 1,800 paragraphs. Without resolving the case on this basis, the Law Court noted that the complaint was “decidedly not short or plain,” but was instead unnecessarily filled with “eye-watering detail” and repetition that would justify dismissal of the complaint. The Court’s discussion is an important reminder, in an age where complaints are growing (needlessly) ever longer, that Rule 8’s limitations have real teeth.
On the merits, the Court concluded—in an admirably concise opinion—that the hospitals’ theories of liability were insufficient because the hospitals had not directly suffered the harm allegedly caused by the opioid sellers. Instead, they had suffered only indirect and purely economic harm. Importantly, the Court observed that
[A]n actor has no general duty to avoid the unintentional infliction of economic loss on another.
Among the notable limits to economic liability reaffirmed by the Law Court were the following:
Under principles of duty and proximate causation, a hospital cannot assert an independent negligence claim to recover the costs of treating a victim injured by a negligent act.
A claim for fraud, fraudulent concealment, or negligent misrepresentation cannot be maintained absent a good faith allegation of reliance on the misrepresentation.
A public nuisance claim can be maintained by a private plaintiff only if the nuisance “infringe[d] on a right particular to the plaintiff” and “cause[d] injury different in kind from the injury to the public generally”—requirements that are not satisfied when the claim is based on widespread economic injury broadly affecting the public.
Given the increasing prevalence of negligence, fraud, and public nuisance claims for alleged instances of widespread harm, EMMC will provide an important guidepost for both plaintiffs and defendants in cases involving private causes of action. Time will tell whether it will cause such injuries to be addressed primarily through actions by government officials on behalf of the public.
Even Privilege Logs Can Be Privileged Under the Fifth Amendment
On January 28, 2025, the U.S. Court of Appeals for the Ninth Circuit issued a significant ruling reinforcing the Fifth Amendment’s protection against self-incrimination and clarifying the attorney-client privilege in the context of grand jury subpoenas.
In In Re Grand Jury Subpoena, 127 F.4th 139 (9th Cir. 2025), the Ninth Circuit held that counsel cannot be compelled to provide a privilege log delineating all documents a client previously sent to counsel for the purpose of obtaining legal advice unless and until the court conducts an in camera review of the documents at issue to determine whether the Fifth Amendment right against self-incrimination, as announced in Fisher v. United States, 425 U.S. 391 (1976), applies.[1]
The decision further defines the limits of government subpoenas in criminal investigations and clarifies when privilege logs themselves may be shielded from disclosure. This ruling has far-reaching implications for attorneys, clients, and government investigations, particularly in white-collar, tax fraud and corporate compliance matters.
Fisher v. United States: Fifth Amendment Protections for Document Production
The Ninth Circuit’s ruling relied upon the Supreme Court’s decision in Fisher v. United States, which laid the foundation of the “act of production” doctrine, governing the Fifth Amendment’s protection against self-incrimination in the context of document production.[2]
In Fisher, the Court held that, while the Fifth Amendment protects against compelled testimonial communication, it does not automatically shield pre-existing documents from disclosure. The Court reasoned that documents voluntarily created before a subpoena is issued are not “compelled testimonial” communication because they were not prepared under government coercion.[3]
The Court also clarified that attorney-client privilege does not extend to pre-existing documents that a client could have been forced to produce had they remained in the client’s possession.[4] Although attorney-client privilege protects confidential communications between a client and their lawyer, it does not transform otherwise discoverable records into privileged material.
However, the Supreme Court recognized that the act of producing documents can be “testimonial” if it forces a person to admit the existence, authenticity, or control of the documents.[5] In such cases, the Fifth Amendment may protect against compelled production, and the attorney-client privilege extends that protection to attorneys who possess documents on behalf of their client. Despite this protection, the Court also introduced the “foregone conclusion” exception, which allows the government to compel the production of documents if it can independently prove their existence, authenticity, and the individual’s possession of them.[6]
The Ninth Circuit’s Decision: When Privilege Logs are Protected
In In Re Grand Jury Subpoena, the Ninth Circuit clarified that Fisher extends beyond the production of documents to the content of privilege logs delineating documents withheld on the basis of privilege.[7]
The case arose from a grand jury investigation into an alleged tax evasion scheme. The government subpoenaed an individual, who declined to testify or produce documents, citing the Fifth Amendment. The government then subpoenaed a law firm that had previously represented the individual in connection with tax matters, demanding that the law firm produce documents related to its representation and prepare a privilege log listing any documents the firm withheld from its production. The law firm refused, asserting that production of the privilege log would violate the client’s Fifth Amendment rights. The district court disagreed and ordered the firm to comply.[8]
On appeal, the Ninth Circuit reversed, holding as a matter of first impression that a privilege log is protected under the Fifth Amendment if its production would confirm incriminating details about the existence, authenticity, or control of the documents.[9] The court reasoned that a privilege log can confirm facts the government cannot independently prove, making it potentially self-incriminating and protected under the Fifth Amendment. Because Fisher shields attorneys from producing documents their clients could not be compelled to provide, the court ruled that a privilege log—which would effectively reveal and confirm the existence and client’s custody of those same documents—may also be protected.[10]
The Ninth Circuit also rejected the government’s argument that the privilege log could be compelled under the “foregone conclusion” exception.[11] The government failed to independently establish the existence, authenticity, and control of the documents, meaning that compelling the privilege log would improperly force the client to provide self-incriminating testimony. To ensure courts properly apply Fisher, the Ninth Circuit further held that a district court must conduct an in camera review—a private judicial examination of the withheld documents—before ordering the production of the privilege log.[12]
Practical Implications
By recognizing that privilege logs can be testimonial, the decision strengthens Fifth Amendment protections and ensures that attorneys cannot be compelled to indirectly confirm the existence of incriminating documents.
The government is prevented from using privilege logs as a backdoor method to obtain knowledge of incriminating evidence that it could not otherwise access.
This case reiterates the importance of closely monitoring attorney-client privilege obligations and potential Fifth Amendment privilege issues when responding to a government subpoena.
ENDNOTES
[1] In Re Grand Jury Subpoena, 127 F.4th 139 (9th Cir. 2025).
[2] Id. at 142–43 (citing Fisher v. United States, 425 U.S. 391, 404–05 (1976).
[3] Fisher, 425 U.S. at 409–10.
[4] Id. at 404–05.
[5] Id. at 410–11.
[6] Id. at 411.
[7] 127 F.4th at 143–44.
[8] Id. at 142.
[9] Id. at 144–45.
[10] Id.
[11] Id.
[12] Id. at 145–46.
NewsBank Hit with Class Action over Employee Data Breach
Last week, a class action was filed against NewsBank, Inc., a Florida-based news database company, related to a 2024 breach of employee personal information.
NewsBank provides a database of archived news publications utilized by libraries, higher education institutions, and other organizations. NewsBank suffered a security incident affecting its employees’ personal information between June and July 2024.
The lead plaintiff claims that, as an employee of NewsBank from January 2023 to November 2024, they were required to provide their personal information (i.e., name, date of birth, Social Security number, and financial account information) as part of their employment.
The lead plaintiff alleges they now face a heightened risk of identity theft due to the breach. The complaint states, “Plaintiff and class members must now and for years into the future closely monitor their medical and financial accounts to guard against identity theft. The risk of identity theft is not speculative or hypothetical but is impending and has materialized as there is evidence that the plaintiff’s and class members’ private information was targeted, accessed, has been misused, and disseminated on the dark web.” The lawsuit alleges claims of negligence, breach of implied contract, and breach of fiduciary duty.
Additionally, the lawsuit alleges that NewsBank failed to follow its policies, including those outlined in its website Privacy Policy, stating that NewsBank had implemented security procedures to protect personal information from unauthorized access, use, and disclosure.
The class seeks over $5 million in damages and injunctive relief, requiring NewsBank to implement enhanced security measures and provide affected individuals with lifetime identity theft protection services. The complaint alleges that “[o]nce private information is exposed, there is virtually no way to ensure that the exposed information has been fully recovered or contained against future misuse [. . . ] For this reason, plaintiff and class members will need to maintain these heightened measures for years, and possibly their entire lives, as a result of defendant’s conduct.”
The Supreme Court Gears Up to Resolve Circuit Split on Class Injury Requirements
On January 24, 2025, the Supreme Court granted certiorari in Laboratory Corp. of America v. Davis, No. 24-0304, which may result in the resolution of a long-standing circuit split on a dispute key to class certification. In its petition for writ of certiorari, petitioner Labcorp sought Supreme Court review of an issue that has divided federal circuit courts: what should courts do when a putative class contains numerous members who lack any Article III injury?
The underlying class action was filed against Labcorp, a leading clinical diagnostic laboratory, alleging that Labcorp’s self-service check-in kiosks, which are not independently accessible to blind individuals, violate the Americans with Disabilities Act (ADA) and California’s Unruh Act. The standing issue concerned how many members of the class were actually injured—Labcorp presented evidence that a significant percentage of visually-impaired patients were either unaware of or did not intend to use the self-service kiosks, preferring to check in with the front desk. Despite these standing issues, and applying existing Ninth Circuit law, the district court in the underlying action certified the class and the Ninth Circuit affirmed.
In its petition for certiorari, Labcorp identified three Circuit blocs that answer the question of absent class member injury in different ways: (1) “the Article III Circuits,” which deny class certification where the class includes members who have suffered no Article III injury; (2) “the De Minimis Circuits,” which apply Federal Rule of Civil Procedure 23(b)(3) and not Article III to reject classes where there are more than a de minimis number of uninjured members; and (3) “the Back-End Circuits” (including the Ninth Circuit), which do not deny class certification based on Article III issues with uninjured class members and only deny class certification under Rule 23(b)(3) if the class contains a large number of uninjured members.
The Supreme Court granted certiorari on the question: “Whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.” Notably, both the district court and Ninth Circuit’s decisions were unpublished. This suggests that the Court is likely poised to address the Circuit split and provide a definitive answer to the question whether any or many uninjured class members may be encompassed within a class in at the time of class certification. An answer restricting class certification to those who suffered harm from the alleged legal violation would be a game-changer for defendants facing lawsuits challenging practices that affect few people but present large potential exposure—such as those under the ADA and those concerning labels on consumer products that do not drive consumer purchasing decisions.
Navigating Text Messages in Discovery
In We The Protesters, Inc., et al., v. Sinyangwe et. Al, the Southern District of New York was recently called upon to resolve a discovery dispute that, according to the Magistrate Judge, “underscore[d] the importance of counsel fashioning clear and comprehensive agreements when navigating the perils and pitfalls of electronic discovery.” More specifically, the court was determining whether, without an express agreement between the parties’ counsel in place, plaintiffs could properly redact text messages based on responsiveness.
We The Protesters, Inc. Background
The litigation arose from a business divorce between the founders of nonprofit Campaign Zero. Plaintiffs’ complaint asserted 17 causes of action for inter alia, trademark infringement, unfair competition, misappropriation, and conversion. Defendants counterclaimed, accusing plaintiffs of copyright infringement, trademark infringement, cyberpiracy, and unfair competition.
In March 2024, the Hon. John P. Cronan granted in part and denied in part plaintiffs’ motion to dismiss three of defendants’ counterclaims. Discovery proceeded and the current dispute came to light after the parties exchanged productions of text messages and direct messages from a social media platform.
In drafting the operative discovery protocol, the parties agreed to collect and review all text messages in the same chain on the same day whenever a text within the chain hit on an agreed-upon search term. (Dkt. No. 64 at 1 & Ex. A). Plaintiffs understood this to mean they needed to produce only the portions of the messages from the same-day text chain that were responsive or provided context for a responsive text message.
Defendants had a different understanding, claiming the entire same-day text chain must be produced in unredacted form. Upon reviewing plaintiffs’ production, defendants objected and claimed plaintiffs’ unilateral redaction of these text messages was improper. Following an unsuccessful meet and confer, defendants filed a letter-motion seeking to compel production of unredacted copies of all text messages in the same chain that were sent or received within the same day. Plaintiffs responded, contending their redactions were proper and, in the alternative, seeking a protective order.
Discussion
Text Messages in Discovery
The court’s decision began with the observation that text messages are an increasingly common source of relevant and often critical evidence in 21st century litigation.[1] According to the court, text messages do not fit neatly into the paradigms for document discovery embodied by Rule 34 of the Federal Rules. Although amended in 2006 to acknowledge the existence of electronically stored information (ESI), i.e., email, the rules were crafted with different modes of communication in mind. Unlike emails, with text messages each text or chain cannot necessarily be viewed as a single, identifiable “document.”
And so, the issue is whether, for discovery purposes, each text message should be viewed as its own stand-alone “document”? Or is the relevant “document” the entire chain of text messages between the custodian and the other individual(s) on the chain, which could comprise hundreds or thousands of messages spanning innumerable topics?[2]
As the opinion notes, federal courts have adopted different approaches with respect to text messages. Some courts, including the Southern District of New York, suggest that a party must produce the entirety of a text message conversation that contains at least some responsive messages.[3] By contrast, other jurisdictions, like the Northern District of Ohio, hold “the producing party can unilaterally withhold portions of a text message chain that are not relevant to the case.”[4] “Still other courts have taken a middle ground.”[5]
Against this backdrop, the court noted that litigants are free to—and are well-advised to—mitigate the risk of this uncertain legal regime by agreeing on how to address text messages in discovery. Rule 29(b) specifically affords parties the flexibility to design their own, mutually agreed upon protocols for handling discovery, but “encourage[s]” counsel “to agree on less expensive and time-consuming methods to obtain information.”[6] Such “‘private ordering of civil discovery’” is “‘critical to maintaining an orderly federal system’” and “‘it is no exaggeration to say that the federal trial courts otherwise would be hopefully awash.’”[7]
The court noted a party may think twice about insisting on the most burdensome and costly method of reviewing and producing text messages for its adversary if it knows it will be subject to the same burden and cost. In general, the parties are better positioned than the court to customize a discovery protocol that suits the needs of the case given their greater familiarity with the facts, the likely significance of text message evidence, and the anticipated volume and costs of the discovery.[8]
Resolution Where Agreement is Incomplete
Here, the court noted the parties negotiated an agreement regarding the treatment of text messages. However, the agreement was incomplete. According to the court, email exchanged between the parties, along with the parties’ summary of the verbal discussions that took place show agreement that (1) discovery would include text messages; (2) specific search terms would be used to identify potentially responsive text messages; and (3) when a search term hit on a text message, counsel would review all messages in the same chain sent or received the same day, regardless of whether the text message that hit on the search term was responsive. The parties both produced responsive text messages in the form of same-day text chains, manifesting mutual assent that a same-day chain represented the appropriate unit of production. However, the parties’ agreement did not explicitly address whether, in producing those same-day text chains, texts deemed irrelevant and non-responsive would be redacted or, instead, the chains needed to be produced in their entirety. It was that failure that caused the instant dispute.
In resolving the dispute, the court viewed the issue through the prism of the parties’ prior agreement, discussions, and lack of discussions. The court indicated its task was not to determine the “right answer” to the redaction question in the abstract, but rather how to proceed with an agreement that was unknowingly incomplete. The court identified its task as akin to filling a gap in the parties’ incomplete agreement.[9]
In completing its task, the court noted the familiar principle of contract law that “contracting parties operate against the backdrop” of applicable law which, in this context, was supplied by Al Thani — the leading case in the Southern District on the issue of redactions from text messages and one authored by the presiding district judge in this litigation. Al Thani holds squarely that “parties may not unilaterally redact otherwise discoverable” information from text messages for reasons other than privilege.[10] Yet that is precisely what plaintiffs did.
The court further relied upon Judge Aaron’s decision in In re Actos Antitrust Litigation as instructive. In Actos, the issue involved “email threading,” i.e., the production of a final email chain in lieu of producing each separate constituent email. Specifically, a discovery dispute arose because defendants made productions “using email threading even though the Discovery Protocol, by its terms, did not permit such approach.”[11] Judge Aaron rejected defendants’ unilateral decision to use threading, explaining “if the issue had been raised when the parties were negotiating the Discovery Protocol, Plaintiffs may have been able to [avoid the issue], however, Plaintiffs were not provided the opportunity to negotiate how email threading might be accomplished in an acceptable manner.”[12] The court declined to impose threading on plaintiffs.
Here, the court found the Actos reasoning persuasive. If plaintiffs wanted to redact their text messages, it was incumbent upon them to negotiate an agreement to that effect or, in the absence of agreement, resolve the issue with the court before defendants made their production. Accordingly, as in Actos, the court construed the absence of a provision in the parties’ agreement allowing redaction of text messages to preclude plaintiffs from unilaterally redacting.
Considerations for Text Message Discovery
We The Protesters, Inc., is an important reminder of a few things. First, text messages and other forms of mobile instant messages are a critical form of evidence in today’s litigation. Any discovery protocol should address preservation, production, and potential redactions to that ESI. Additionally, given the cost and burden attendant to ESI, parties should leverage Rule 29(b) and fashion their own, mutually agreeable protocols for handling discovery, with an eye toward proportionality and efficiency. Finally, cooperation and communication are key in litigation. When in doubt, consider picking up the phone to opposing counsel. Here, had plaintiff confirmed its intention to redact content prior to production, much effort and cost may have been avoided.
[1] Mobile phone users in the United States sent an estimated 2 trillion SMS and MMS messages in 2021, or roughly 5.5 billion messages per day, a 25-fold increase from 2005. SMS and MMS messages represent only a subset of the universe of mobile instant messaging, or MIM, which also includes other means of messaging via mobile phones. MIM, in turn, does not account for the vast volume of instant messages, or IM, sent on computer-mediated communication platforms. The use of IM and MIM “has become an integral part of work since COVID-19.” Katrina Paerata, The Use of Workplace Instant Messaging Since COVID-19, Telematics and Informatics Reports (May 2023).
[2] After all, an email chain is typically confined to a single subject, whereas a single text chain can read more like a stream of consciousness covering countless topics.
[3] Lubrizol Corp. v. IBM Corp., (citing cases); see also Al Thani v. Hanke (noting the general rule that parties may not unilaterally redact otherwise discoverable documents for reasons other than privilege,) id. at *2; see also Vinci Brands LLC v. Coach Servs., Inc. (following Al Thani).
[4] Lubrizol at *4 (citing cases from various jurisdictions that follow this approach).
[5] Id. (citing cases from such jurisdictions).
[6] Id. 1993 Adv. Comm. Note.
[7] Brown v. Hearst Corp. (quoting 6 Moore’s Federal Practice § 26.101(1)(a)).
[8] See generally Jessica Erickson, Bespoke Discovery, 71 Vand. L. Rev. 1873, 1906 (2018) (“Parties should have more information than judges about the specific nature of their disputes and thus should be in a better position to predict the types of restrictions that will be appropriate.”).
[9] See In re World Trade Center Disaster Site Litig. (“In limited circumstances, a court may supply a missing term in a contract.”); Adler v. Payward, Inc.(“[C]ourts should supply reasonable terms to fill gaps in incomplete contracts.”) (citation omitted).
[10] Al Thani at *2.
[11] Id. at 551.
[12] Id.
Seventh Circuit Clarifies Plaintiffs’ Evidentiary Burden in FLSA Cases
In Osborn v. JAB Management Services, Inc., No. 24-1573 (January 22, 2025), the U.S. Court of Appeals for the Seventh Circuit affirmed a district court’s entry of summary judgment in favor of an employer on a former employee’s overtime claims under the Fair Labor Standards Act (FLSA), finding her testimony regarding the hours she worked insufficient to raise an issue of material fact.
The Seventh Circuit’s decision clarifies the evidence nonexempt employees must present to create a jury question as to whether they worked uncompensated overtime.
Quick Hits
The FLSA requires employers to pay nonexempt employees—including those paid on a salary basis—overtime for all hours worked beyond forty in any workweek.
The district court, applying a “just and reasonable inference” standard, found that an employee who had not tracked her time worked over forty hours and relied on her testimony of the duties performed to support her overtime claims had not presented evidence sufficient to overcome an order of summary judgment for the employer.
On appeal, the Seventh Circuit affirmed summary judgment for the employer, stating that Federal Rule of Civil Procedure 56 governs summary judgment, and the more lenient “just and reasonable inference” standard for calculating damages applies after a plaintiff meets the initial burden of establishing liability.
Background
Tara Osborn was a longtime employee of JAB Management Services, which contracts with other entities to provide prison healthcare. At the time of her termination of employment, Osborn was a technical support specialist providing on-call support regarding inmate medical records. The technical support specialist is a fully remote, salaried nonexempt position. Osborn was free to design her own schedule, although typical business hours ran from 8:00 a.m. to 5:00 p.m.
Osborn admitted she did not track any time she worked over forty hours. JAB Management did not track her overtime either. Still, Osborn claimed to have worked an average of ten hours per day and fifteen hours of overtime per week. When asked to describe her work, Osborn stated she “had to work outside of normal business hours to take support calls, respond to emails, drive to client sites, and ‘patch servers,’” including irregular weekend work.
The Seventh Circuit noted that toward the end of her employment with JAB Management, Osborn’s supervisors stated she “failed to explain what she was working on throughout the day, yet she complained about having too much to do.” As a result, some of her tasks were reassigned to her coworkers, while Osborn’s supervisors coached her to correct her performance. When Osborn’s performance did not improve, JAB Management terminated her employment.
Osborn then sued JAB Management, alleging the company had failed to pay her overtime compensation as required by the FLSA. JAB Management moved for summary judgment. The district court, applying a “just and reasonable inference” standard, granted JAB Management’s motion, holding that Osborn had failed to “prove by a just and reasonable inference the amount and extent of work she performed.” Osborn appealed to the Seventh Circuit.
The Seventh Circuit’s Analysis
The Seventh Circuit first clarified that the burden of proof at summary judgment (governed by Federal Rule of Civil Procedure 56) differs from the “just and reasonable difference” standard, stating, “The just and reasonable inference standard ‘applies to damages questions only after an employee has met the initial burden to establish liability.’”
To establish liability, an employee who claims that he or she was not compensated for overtime in violation of the FLSA must present evidence of the hours worked, which can be established through the employee’s testimony. To survive summary judgment, the employee’s evidence must place the employee’s version of events beyond the level of mere speculation or conjecture. As the Seventh Circuit noted, “While employees need not describe their schedules ‘with perfect accuracy,’ they should be able to offer ‘testimony coherently describ[ing]’ their typical workweeks.”
When pressed for details on what she did for ten hours per day, Osborn responded vaguely that she worked on “[c]ustomer issues, the database, the reports, it is very labor intensive.” While Osborn claimed to have coworkers who could testify regarding her workload, she failed to offer their sworn testimony. The court found her claim of consistently working fifteen hours of overtime per week to be inconsistent with her reports of call volume declining over time and significant changes to her duties.
Citing Sixth and Eighth Circuit decisions in support, the Seventh Circuit held, “[T]he evidence [Osborn] has produced fails to provide us with even a general sense of her typical workweek.”
“If this claim survived summary judgment,” the court continued, “then any FLSA claim in which the employee vaguely describes her schedule as having exceeded forty hours per week would reach a jury.”
Key Takeaways
JAB Management clarifies the evidentiary burden employees must meet at the summary judgment stage of proceedings when alleging failures to pay overtime compensation under the FLSA. Like other circuits, the Seventh Circuit has held that conclusory estimates about an employee’s average workweek, without more, do not permit a trier of fact to conclude an employee worked overtime. Under the court’s holding, nonexempt employees claiming unpaid overtime have a burden of producing at least some admissible evidence of their specific overtime hours worked and the duties they allegedly performed during those hours.
Thinking Like a Lawyer: Agentic AI and the New Legal Playbook
In the 20th century, mastering “thinking like a lawyer” meant developing a rigorous, precedent-driven mindset. Today, we find ourselves on the cusp of yet another evolution in legal thinking—one driven by agentic AI models that can plan, deliberate, and solve problems in ways that rival and complement human expertise.
In this article, we’ll explore how agentic reasoning powers cutting-edge AI like OpenAI’s o1 and o3, as well as DeepSeek’s R1 model. We’ll also look at a technical approach, the Mixture of Experts (MoE) architecture, that makes these models adept at “thinking” through complex legal questions. Finally, we’ll connect the dots for practicing attorneys, showing how embracing agentic AI can boost profitability, improve efficiency, and elevate legal practice in an ever-competitive marketplace.
The Business of Law Meets Agentic Reasoning
Legal practice is as much about economics as it is about jurisprudence. When Richard Susskind speaks of technology forcing lawyers to reconsider traditional business models, or when Ethan Mollick highlights the way AI can empower us with a co-inteligence, they’re tapping into the same reality: law firms are businesses first and foremost. Profit margins and client satisfaction matter, and integrating agentic AI is quickly becoming a competitive imperative.
Still, many lawyers hesitate, fearing automation will erode billable hours or overshadow human expertise. The key is to realize that agentic AI, tools that can autonomously plan, analyze, and even execute tasks, don’t aim to replace lawyers. Instead, they empower lawyers to practice at a higher level. By offloading rote tasks to AI, legal professionals gain the freedom to focus on nuanced advocacy, strategic thinking, and relationship-building.
A Quick Tour: o1, o3, and DeepSeek R1
OpenAI’s o1: Laying the Agentic Foundation
Introduced in September 2024, o1 marked a significant leap forward in AI’s reasoning capabilities. Its defining feature is its “private chain of thought,” an internal deliberation process that allows it to tackle problems step by step before generating a final output. This approach is akin to an associate who silently sketches out arguments on a legal pad before presenting a polished brief to the partner.
This internal “thinking” has proven especially useful in scientific, mathematical, and legal reasoning tasks, where superficial pattern-matching often falls short. The trade-off? Increased computational demands and slightly slower response times. But for most law firms, especially those dealing with complex litigation or regulatory analysis, accuracy often trumps speed.
OpenAI’s o3: Pushing Boundaries
Building on o1, o3 arrived in December 2024 with even stronger agentic capabilities. Designed to dedicate more deliberation time to each query, o3 consistently outperforms o1 in coding, mathematics, and scientific benchmarks. For lawyers, this improvement translates to more thorough statutory analysis, contract drafting, and fewer oversights in due diligence.
One highlight is o3’s performance on the Abstraction and Reasoning Corpus for Artificial General Intelligence (ARC-AGI). It scores nearly three times higher than o1, underscoring the leap in its ability to handle abstract reasoning, akin to spotting hidden legal issues or anticipating an opponent’s argument.
DeepSeek R1: The Open-Source Challenger
January 2025 saw the release of DeepSeek R1, an open-source model from a Chinese AI startup. With performance on key benchmarks (like the American Invitational Mathematics Examination and Codeforces) exceeding o1 but just shy of o3, DeepSeek R1 has quickly attracted viral attention. Perhaps its biggest draw is cost-effectiveness: it’s reportedly 90-95% cheaper than o1. That kind of pricing is hard to ignore, especially for smaller firms or legal tech startups that need powerful AI without breaking the bank. DeepSeek R1’s open-source license also opens the door to customization: imagine a specialized “legal edition” any firm can adapt.
The market impact has been swift: DeepSeek R1’s launch catapulted its associated app to the top of the Apple App Store and triggered a sell-off in AI tech stocks. This frenzy underscores a critical lesson: the world of AI is volatile, competitive, and global. Law firms shouldn’t pin their entire strategy on a single vendor or model; instead, they should stay agile, ready to explore whichever AI solution best fits their needs.
How Agentic Reasoning Actually Works
All these models—o1, o3, and DeepSeek R1—share a common thread: agentic reasoning. They’re built to do more than just respond; they deliberate. Picture an AI “intern” that doesn’t just copy-and-paste from a template but weighs the merits of different statutes, checks your prior briefs, and even flags contradictory language before you finalize a contract.
But how do they manage this level of autonomy under the hood? Enter the Mixture of Experts (MoE) architecture.
Mixture of Experts (MoE) Architecture
Experts: Think of each expert as a specialized “mini-model” focusing on a single domain—perhaps case law parsing, contract drafting, or statutory interpretation.
Gating Mechanism: This is the brains of the operation. Upon receiving an input (e.g., “Draft a motion to compel in a federal product liability case”), the gating system selects the subset of experts most capable of handling that task.
The process is akin to sending your question to the right department in a law firm: corporate experts for an M&A agreement, litigation experts for a discovery motion. By activating only the relevant experts for a given task, the AI remains computationally efficient, scaling easily without ballooning resource needs. This sparse activation mirrors an attorney’s own approach to problem-solving; you don’t bring in your tax partner for a maritime dispute, and you don’t put your entire legal team on every single project.
For agentic reasoning, MoE models shine because they allow the AI to break down multi-faceted tasks into manageable chunks, using the best “sub-models” for each piece. In other words, the AI can autonomously plan which mini-experts to consult, deliberate internally on their advice, and then execute a cohesive final output, much like a senior partner synthesizing input from various practice groups into one winning brief.
Practical Impacts on Legal Workflows
Research and Drafting
Lawyers spend countless hours researching regulations and precedents. With agentic AI, that time shrinks dramatically. For instance, an MoE-based system could route textual queries to the “case law expert” while simultaneously consulting a “regulatory expert.” The gating mechanism ensures each question goes to the sub-model best suited to answer it. That means more accurate, tailored research in less time.
Document Review and Due Diligence
High-stakes M&A deals or massive litigation cases involve reviewing thousands of pages of documents. Agentic AI can quickly triage which documents to flag for deeper human review, finding hidden clauses or issues that might otherwise take an associate weeks to spot. The result? Faster, cheaper due diligence that can be billed in alternative ways: flat fees, success fees, or other value-based structures, enhancing client satisfaction and firm profitability.
Strategic Advisory
Perhaps the most exciting application is strategic planning. By running different hypothetical arguments or settlement options through an agentic model, attorneys can gain insights into possible outcomes. Imagine a “simulation-expert” sub-model that compares potential trial outcomes based on past jury verdicts, local court rules, and judge profiles. While final decisions rest with the lawyer (and client), AI offers a data-driven edge in deciding whether to settle, proceed, or counter-offer.
Profitability: Beyond the Billable Hour
One of the biggest hurdles to adopting AI is the fear that automated tasks will reduce billable hours. But consider how value-based billing or flat-fee arrangements can transform the equation. If AI cuts a 10-hour research task down to 2, you can offer clients a predictable cost and still maintain or even improve your margin. Clients often prefer certainty, and they value speed if it means resolving matters sooner.
Additionally, adopting agentic AI can allow your firm to take on more cases or offer new services, like real-time compliance monitoring or rapid contract generation. Scaling your practice to handle more volume without expanding headcount can be a powerful revenue driver.
The Human Element: Lawyers as Conductors
Agentic AI models are not a substitute for the judgment, empathy, and moral responsibility that define great lawyering. Rather, think of AI as your personal ensemble of experts, each playing a specialized instrument. You remain the conductor, guiding the orchestra to create a harmonious legal argument or transaction.
If anything, the lawyer’s role becomes more vital in an AI-driven world. Your expertise ensures the AI’s recommendations make sense in the real world of courts, regulations, and human relationships. Your ethical obligations and professional standards guarantee that client confidentiality is safeguarded, conflicts of interest are managed, and justice is served.
Closing Thoughts
The real paradigm shift here comes from recognizing how AI agents, powered by a Mixture of Experts architecture, can function like a fully staffed legal team, all contained within a single system. Picture a virtual army of associates, each specialized in key practice areas, orchestrated to dynamically route tasks to the right “expert.” The result? A law firm that can harness collective knowledge at scale, ensuring top-notch work product and drastically reducing turnaround times.
Rather than replacing human talent, this approach enhances it. Lawyers can channel their energy into strategic thinking, client relationships, and creative advocacy, those tasks that define the very essence of the profession. Meanwhile, agentic AI handles heavy lifting in research, analysis, and repetitive drafting, enabling teams to serve more clients, tackle more complex matters, and ultimately become more impactful and profitable than ever before.
Far from an existential threat, these AI advancements offer us the freedom to practice law at its best, delivering deeper insights with greater efficiency. In embracing these technologies, we build a future where legal professionals can make more meaningful contributions to both their firms and the broader society they serve.
Supreme Court to Decide Key Question of Whether Rule 23(b)(3) Class May Be Certified if Some Proposed Class Members Lack any Article III Injury
On Friday, the U.S. Supreme Court granted certiorari in Laboratory Corporation of America Holdings v. Davis, No. 24-304, to decide “[w]hether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.” This has the potential to be one of the most significant developments in class action law in several years.
The plaintiffs, who are blind, sued Labcorp under the Americans With Disabilities Act and California Unrah Civil Rights Act (Act) because its self-service kiosks were not accessible to the blind without assistance. They seek minimum statutory damages of $4,000 per violation under the Act—potentially $500 million per year. The proposed class was defined to include any legally blind person who walked into a facility that had a kiosk and was unable to use it, regardless of whether they were aware of it or desired to use it. The district court certified the class and the Ninth Circuit affirmed in an unpublished opinion with little analysis because prior Ninth Circuit decisions had held that only the named plaintiff must establish Article III standing. Here, a named plaintiff walked into the facility, inquired about a kiosk and then was assisted by an employee at the front desk. According to the petition for certiorari, many putative class members were not aware of the kiosks and used the front desk, and the plaintiffs did not identify anyone who was unable to receive services due to the kiosks.
Circuits are split on whether or what extent class members must have standing (i.e., a “concrete and particularized” “invasion of a legally protected interest” that is “actual or imminent, not conjectural or hypothetical”) at the class certification stage, or at some other stage in the case. Under Ninth Circuit precedent, it was sufficient for the named plaintiff to have sustained an injury, even if many other putative class members did not. The Second and Eighth Circuits have articulated a relatively strict approach that all class members must have standing. The First and D.C. Circuits appear to have required that a class contain no more than a “de minimus” number of proposed class members who lack standing. The Seventh Circuit has found that a class may be certified unless a “great many” class members lack standing. Finally, the Eleventh Circuit appears to have agreed with the Ninth Circuit that only a named plaintiff must have standing. I say “appears to have” because there is some debate about how to properly interpret some of these circuits’ case law, and in some circuits the cases are not entirely consistent.
This is an issue the Supreme Court was expected to decide in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), but did not reach in that case.
Defendants will be hoping that the Court’s conservative majority will rein in this type of class action and require that all proposed class members have standing for a class to be certified, while the plaintiffs’ bar will be hoping the Court, if it does not affirm the Ninth Circuit, adopts more of a “middle ground” approach. Briefing is scheduled for March and April, to put the case in line for decision by the end of June. Stay tuned.