Ascertainability: The Implicit Prerequisite That May Help You Defeat Class Certification

July 24, 2014

There are many avenues defendants may pursue in their attempts to prevent class certification in federal courts, particularly post-Dukes.  One of those avenues is challenging “ascertainability,” the certification factor that has proven to be the Achilles’ heel of some consumer class actions. Ascertainability refers to the ability, through use of objective criteria, to identify the members of […]

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New York Court Of Appeals Reminds Litigants That The Subtleties Of Jury Instructions Matter

July 18, 2014

Earlier this month, the New York State Court of Appeals – New York State’s highest court – reversed a decision in a product liability action based on a jury instruction that listed an improper standard.  The case – Reis v. Volvo - involved a claim for defective design of an automobile, and much of the evidence […]

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California Court Denies Putative GMO Labeling Class, But Leaves The Door Open

July 16, 2014

Several years ago, most people had never heard of genetically modified organisms — commonly referred to as GMOs.  Chances are, if you were not a farmer or a scientist and did not work for a food manufacturer, you had never heard of GMOs.  Now, however, you can add lawyers and self-proclaimed healthy-eating advocates to the […]

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New York Court of Appeals Issues Fracking Decision on Preemption of Local Bans

July 11, 2014

Last month, I posted on the oral argument that took place at the New York Court of Appeals addressing two local towns’ bans on fracking within its borders.  On June 30, 2014, the Court of Appeals issued its decision, rejecting the companies’ preemption argument and upholding the fracking ordinances. On appeal, the companies argued that […]

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Another Victory For The Learned Intermediary Doctrine

July 9, 2014

Tim Howard’s performance in the Americans’ World Cup game against Belgium was one for the ages.  He saved more shots than any goalie had in the World Cup in almost fifty years.  But, he did let two goals in.  Neither were his fault but that did happen.  A reminder that even an incredible defense can […]

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