9th Circuit: "evidentiary proof" in support of class action certification need not be "admissible evidence."

The Ninth Circuit recently ruled that evidence offered in support of class certification need not meet standards for admissibility at trial.  In a published opinionSali v. Corona Regional Medical Center, No 15-56460 (9th Cir. May 3, 2018), the panel reversed and remanded the district court’s determination that plaintiffs failed to satisfy typicality, adequacy, and predominance. 

Impact Fund and allies file amicus brief in support of rehearing in Ahearn v. Hyundai.

As explained in the amicus brief, that decision was an unwarranted departure from well-established precedent that differences between state consumer protection laws do not defeat predominance of common questions as to the defendant’s uniform misconduct. This precedent has facilitated nationwide class action settlements both within the Ninth Circuit and sister circuits for years. As the Impact Fund and their fellow amici explained, “Litigation is costly and time-consuming for plaintiffs, defendants, and the court system alike,” which has led to a “strong judicial policy” in favor of settlements. Contravening this policy, the divided majority panel “added requirements and shifted burdens” that would unfortunately operate to prevent settlement of nationwide claims.

Google Class Action a Potential Game-Changer in the UK

Google Class Action a Potential Game-Changer in the UK

On November 29, 2017, a representative action was filed in the U.K. alleging that Google was tracking activity of Apple Safari users without their knowledge or consent. They were then aggregating this data and selling the information to advertisers for a substantial profit. This conduct is alleged to violate the Data Protection Act of 1998. The claimants are looking for damages for the infringement of their data protection rights, and for the commission of the wrong and loss of control over personal data.

SCOTUS Amicus Brief: Class Actions Vital To Equal Opportunity In Employment

SCOTUS Amicus Brief: Class Actions Vital To Equal Opportunity In Employment

A fair workplace, free from discrimination, is an American ideal. Many of our nations F500 companies reflect this value in their forward-facing materials and practices, but sadly, at the contractual level with workers, the promise of an even playing field gets tilted…

That’s why, on August 17, 2017, together with NAACP Legal Defense & Educational Fund and Cohen Milstein Sellers & Toll PLLC, we filed an amicus brief in the U.S. Supreme Court in National Labor Relations Board v. Murphy Oil USA.

Transgender Vets Left Out In The Cold - Impact Fund & Allies File Amicus Brief

Transgender Vets Left Out In The Cold - Impact Fund & Allies File Amicus Brief

Last month, Lambda Legal and Transgender Law Center appealed the Secretary’s denial of the petition to the Federal Circuit, arguing in part that the denial of coverage for sex reassignment surgeries is sex discrimination that violates the Equal Protection Clause of the Fifth Amendment. We agree. Standing in solidarity, we have authored an amicus brief.

Impact Fund Training Institute: A Catalyst For Thoughtful Class Action Justice

For a decade now, the Impact Fund Training Institute has served as a catalyst for thoughtful and thorough class action litigation. Over the past ten years we have trained over 250 attorneys giving them the knowledge and foundation they need to advance justice in the United States. The conference has assisted in bridging the gap between private firms and nonprofit organizations by highlighting opportunities for collaboration.

Institute alumnus, Jacob Bell, sat down with us recently to share his experience and reflect on the value of the training institute to him.  

Third Circuit Crystallizes Post-Spokeo Standard

The Third Circuit handed down an opinion last Monday holding that a violation of the Telephone Consumer Protection Act (TCPA) confers Article III standing even in the case of intangible injuries.

The opinion may prove to be less interesting for its impact on TCPA jurisprudence than for guiding courts in their efforts to understand and apply the Supreme Court’s Spokeo decision.  After all, within the TCPA context, there already appears to be a consensus that statutory violations satisfy Article III’s requirements.


While the Microsoft case is a clear victory for corporate defendants, there is some language in the opinion that may be useful in another important fight in a different venue. H.R. 985, the anti-class action bill passed earlier this year by the House, would permit an interlocutory appeal from every class certification order. The high court’s opinion strongly endorsed a contrary perspective – it highlighted the wisdom of Rule 23(f)’s “careful calibration” of the question as well as the preference for determining such issues through rulemaking rather than legislation. Senate Judiciary Committee, are you listening? 

H.R. 1215: Obliterating Access to Justice for Severe Medical Negligence

On March 6, 2017, in a federal courtroom filled with veterans and family members of veterans, Judge Michelle Burns took the bench to read her findings in the medical malpractice action that Steve Cooper, an eighteen-year veteran of the US Army, brought against the VA hospital in Phoenix for failing to diagnose his cancer. 

Structured Negotiation: A Winning Alternative to Lawsuits

Lainey explains the approach in clear and well-organized chapters, with illustrations from dozens of successful negotiations against major banks, retailers, and even Major League Baseball.  One of the rewarding “sub-plots” of the book is the fascinating evolution of accessible technology over the past two decades for those who are “print-disabled.”  She explains how “talking ATMs,” accessible websites and audio description for movies have become state-of-the-art methods for corporations to better serve all of their customers. 

Impact Fund Files Amicus Brief In U.S. Supreme Court Transgender Case

Impact Fund Files Amicus Brief In U.S. Supreme Court Transgender Case

On March 2, 2017, Impact Fund filed an amicus brief in the U.S. Supreme Court in Gloucester County School Board v. G.G., which at the time was poised to be the first of the transgender access cases to be heard in the Supreme Court. Our brief supports Gavin Grimm, a 17-year old high school student in Gloucester County, Virginia. Gavin is challenging a local school board policy that prohibits transgender students from using the sex-segregated facilities (such as restrooms) that are consistent with their gender identity. The policy is similar to North Carolina’s notorious H.B. 2 legislation and equally discriminatory.

Good Class Action Notice Boosts Participation and Results in Good Public Policy

Good Class Action Notice Boosts Participation and Results in Good Public Policy

While the value of class actions is a hot topic for some, what shouldn’t be a matter of debate is that once a class action is settled, there is only one objective – informing class members of their legal rights and, if class members can get money, clearly telling them how to get it. This is especially true in common fund settlements. It’s not only good for the settlement, its good public policy in general.

H.R. 985: Holding Down Civil Rights Class Actions

H.R. 985: Holding Down Civil Rights Class Actions

121 Civil Rights Non-Profits and 87 Ally Firms Oppose H.R. 985. On February 14, the Impact Fund submitted a letter on behalf of 121 civil rights non-profit organizations and advocates, joined by 87 ally law firms, to oppose H.R. 985 (“Fairness in Class Action Litigation Act of 2017”). H.R. 985, currently pending in the U.S. House of Representatives, would upend decades of settled class action law and undermine the enforcement of U.S. civil rights law.

Class Certification Does Not Require That Class Member Identification Be “Administratively Feasible."

Most people do not retain receipts for the myriad of food items and inexpensive consumer goods that they purchase each year.  But, should this entirely understandable fact of modern life provide a license to corporations to defraud consumers who buy these products?

McCrory's Somber Legacy - Discrimination in Cinemascope

McCrory's Somber Legacy - Discrimination in Cinemascope


Earlier this summer, voting rights advocates won a stunning string of victories in federal courts across the country.   In one decision after another, courts struck down voting restrictions enacted by state legislatures emboldened by the Supreme Court’s myopic Shelby County decision. 

Of particular note was the Fourth Circuit’s decision in North Carolina State Conference of the NAACP v. McCrory, a must-read for all civil rights litigators...

Speaking Out Against Unlawful Sex Stereotyping of Transgender People in North Carolina’s H.B. 2

Earlier this year, the North Carolina legislature passed a sweeping anti-LGBT bill, H.B. 2, which requires public schools and agencies to discriminate against transgender people by prohibiting them from using sex-segregated restrooms according to their gender identity. Plaintiffs Joaquín Carcaño, the ACLU of North Carolina, and others filed a lawsuitchallenging H.B. 2 as unlawful discrimination against transgender individuals under the Equal Protection and Due Process Clauses and Title IX of the Education Amendments of 1972.

Ninth Circuit: "Fortuitous Non-Injury" Does Not Defeat Class Certification

The recent appellate decision affirming class certification, Ruiz Torres v. Mercer Canyons Inc.No. 15-35615 (9th Cir. Aug. 31, 2016), written by Judge Milan Smith, skillfully addresses the issues of informational injury, non-injured class members, class definition, and aggregate damages while scrupulously declining defendant's invitation to engage the underlying merits. 

A Big Year for Class Actions in SCOTUS (2016 Term Review)

The Supreme Court docket this past term had class action practitioners holding their breath. Over the last five years, the Court has limited access to class actions in cases including Wal-Mart Stores, Inc. v. DukesAT&T Mobility LLC v. Concepcion, and American Express Co. v. Italian Colors Restaurant. This term, the Court took on an unprecedented four class action cases. The outcome is fascinating and has many ramifications for the ability of class actions to serve as a vehicle for groups of people—including workers, minorities, and consumers—to hold corporations and the government accountable.

Supreme Court of California Approves Common Fund Fees

In a unanimous decision this morning, the California Supreme Court affirmed that attorneys’ fees in a class action may be calculated as a percentage of the common fund created by a settlement or judgment. Laffitte v. Robert Half Int’l, S222996 (August 11, 2016).  

In determining the appropriate percentage, the trial court may -- but is not required to – conduct a lodestar cross-check.  The trial court also has the discretion, in the first instance, to determine which fee calculation methodology to use (i.e. common fund or lodestar-multiplier) in any particular case.  The decision has a useful discussion of the history and criticisms of each method. 


Earlier this year, statistics made headlines as the subject of a new Supreme Court decision, Tyson Foods, Inc. v. Bouaphakeo. As Jocelyn Larkin described in her earlier blog post, employees working in the kill, cut, and retrim departments of a Tyson Foods pork processing plant in Iowa alleged that they had not been paid overtime for the time they spent putting on and taking off the protective gear required to do their dangerous jobs. At trial, the employees relied on “representative evidence” to prove liability – an observational study that resulted in an estimated average “donning and doffing” time for each department. A jury awarded the class of employees about $2.9 million in unpaid wages.

The Supreme Court accepted Tyson’s appeal and agreed to consider two questions: