PLAINTIFFS’ CLASS CERTIFICATION MOTIONFederal Rule of Civil Procedure 23 governs class certification. A party seeking class certification must first meet the requirements of Rule 23(a), namely that: “(1) the class is sonumerous that joinder of all members is impracticable [(numerosity)]; (2) there are questions of law or fact common to the class [(commonality)]; (3) the claims or defenses of the representative parties are typical of the class [(typicality)]; and (4) the representative parties will fairly and adequately protect the interests of the class [(adequacy of representation)].” Fed. R. Civ. P. 23(a); Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 565 (S.D.N.Y. 2014). With respect to the Court’s Rule 23 analysis, “[t]he Second Circuit has also recognized the ‘implied requirement of ascertainability.’

This landmark tort reform legislation “federalizes” most interstate class actions now in the state courts through its new “minimal diversity” jurisdiction provisions, and its new standards liberalizing removal of class actions. In addition, CAFA enacts a “Consumers’ Class Action Bill of Rights” that significantly alters class action settlement practices. Adding to the great uncertainties in class action practice occasioned by adoption of CAFA, several far-reaching amendments to Federal Rule of Civil Procedure 23 took effect on December 1, 2003. The 2003 amendments were the most significant changes to Rule 23 since 1966.

Defendant urged reversal of the district court’s class certification because the district court did not require Plaintiff-Appellee Robert Briseno and the other named class representatives to proffer an administratively feasible way to identify members of the certified classes.The panel held that the language of Federal Rule of Civil Procedure 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite to class certification. The panel therefore joined the Sixth, Seventh, and Eighth Circuits in declining to adopt an administrative feasibility requirement.

The motion is now ripe for the court’s review.II. STANDARDClass certification is governed by Federal Rule of Civil Procedure 23. Rule 23(a) provides that one or more members of a class may sue or be sued as representative parties on behalf of all only if: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims ordefenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” In addition to the requirements of Rule 23(a), a class must also satisfy the requirements set forth in one of the three sub-parts of Rule 23(b), as follows: (1) individual actions would risk inconsistent adjudications, or adjudications dispositive of non-parties; (2) class-wide injunctive or declaratory relief is sought and appropriate; or (3) legal or factual questions, common to the proposed class members, predominate over questions affecting individual members.

The motion is now ripe for the court’s review.II. STANDARDClass certification is governed by Federal Rule of Civil Procedure 23. Rule 23(a) provides that one or more members of a class may sue or be sued as representative parties on behalf of all only if: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims ordefenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” In addition to the requirements of Rule 23(a), a class must also satisfy the requirements set forth in one of the three sub-parts of Rule 23(b), as follows: (1) individual actions would risk inconsistent adjudications, or adjudications dispositive of non-parties; (2) class-wide injunctive or declaratory relief is sought and appropriate; or (3) legal or factual questions, common to the proposed class members, predominate over questions affecting individual members.

Marcus v. BMW of N.A., LLC,687 F.3d 583, 590 (2012). In order to satisfy Rule 23(a), a plaintiff must show:(1) the class must be “so numerous that joinder of all members is impracticable” (numerosity); (2) there must be “questions of law or fact common to the class” (commonality); (3) “the claims or defenses of the representative parties” must be “typical of the claims or defenses of the class” (typicality); and (4) the named plaintiffs must “fairly and adequately protect the interests of the class” (adequacy of representation, or simply adequacy).In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010) (quoting Fed. R. Civ. P. 23). Rule 23(b)(3), which is the basis for certification here, “requires that (i) common questions of law or fact predominate (predominance), and (ii) the class action is the superior method for adjudication (superiority).” Marcus, 687 F.3d at 591 (quoting In re Cmty. Bank of N. Va., 622 F.3d at 291).

Substantive Requirements of Rule 23A district court has broad discretion in making a class certification determination under Rule 23. Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001); see also Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979) (district courts “have broad power and discretion vested in them by Fed. Rule Civ. Proc. 23”). Nonetheless, a court must exercise its discretion “within the framework of Rule 23.”

s compensation appeal board. The court rejected both arguments noting that "employee" carries a different meaning under the state worker's compensation statute and that ERISA-covered pension plans are governed by their own terms. The case is also an excellent reminder that plans can overcome estoppel claims and are not under an unconditional obligation to continue to pay erroneous benefits to individuals who are not eligible for benefits in the first instance. Of course, proper correction for pension overpayments may also involve qualification issues for which the IRS EPCRS correction program may be appropriate. Additionally, there are fiduciary issues to consider as to whether it is necessary or appropriate for the plan to seek recoupment. Plan administrators seeking to correct overpayments should carefully consider their options.*Originally published by Bloomberg, BNA. Reprinted with permission.[1]See, e.g., Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001).[2]Fed. R. Civ. P. 23(b)(2).[3]Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2559-60 (2011) (stating that injunctive or declaratory relief cannot be ordered for former employees as required by Rule23(b)(2) since there is no prospective conduct to enjoin). See also Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113, 120-22 (S.D.N.Y. 2012) (applying Wal-Mart to hold same).[4]E.g., Rodolico v. Unisys Corp., 199 F.R.D. 468, 478 (E.D.N.Y. 2001) (finding that even under the rejected "predominating" standard, there is no Rule23(b)(2) certification when the plant where employees worked had been sold because there is no chance of injunctive relief and the case is realistically one for monetary damages).[5]See, e.g., Wal-Mart, 131 S. Ct. at 2557, 2560 (stating that injunctive or declaratory relief must be "final relief" and control prospective conduct, which former employees have no standing to pursue).[6]See, e.g., Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 892-93 (7th Cir. 2011), cert. denied, 132

Although Comcast is an antitrust lawsuit, the Supreme Court's decision could affect certification decisions in ERISA class actions, since the evaluation of class certification motions in ERISA cases often involves an assessment of the parties' respective expert analyses. Experts have always played a significant role in complex class action litigation, including ERISA lawsuits, but the courts' views as to the role of experts at the class certification stage were inconsistent at best. The Supreme Court's decision in Dukes arguably affected the analysis, insofar as the Court set forth a "significant proof" standard for satisfying Fed. R. Civ. P. 23. As part of the "significant proof" discussion, the Supreme Court stated in dicta that the admissibility standard for expert evidence set forth in Daubert v. Merrell Dow Pharmaceuticals Inc.,[1] should apply at the class certification stage.

In exchange for these benefits, Settlement Class Members will provide a general release to Neiman Marcus for all claims relating to the Cybersecurity Incident. (Id. ¶¶ 7, 68-71.)For the reasons set forth above and explained in more detail below, Settlement Class Representatives respectfully request that the Court enter an Order, substantially in the form attached as Exhibit D to the Settlement Agreement: (1) preliminarily approving the terms of the Settlement as within the range of fair, adequate, and reasonable; (2) provisionally certifying the Settlement Class pursuant to Federal Rule of Civil Procedure 23(b)(3) and (e) for settlement purposes only; (3) approving the notice program set forth in the Settlement Agreement and approving the form and content of the notice; (4) approving the procedures set forth in the Settlement Agreement for Settlement Class Members to exclude themselves from the settlement class or to object to the Settlement; (5) staying all proceedings in this matter unrelated to the Settlement pending final approval of the Settlement; (6) staying and/or enjoining, pending final approval of the Settlement, any actions brought by Settlement Class Members concerning a released claim; and (7) scheduling a fairness hearing for a time and date convenient for the Court.II. SUMMARY OF LITIGATION, INVESTIGATION, AND SETTLEMENTA. Procedural HistoryIn January 2014, Neiman Marcus announced that it experienced the Cybersecurity Incident which potentially compromised the credit or debit card information of some of its customers who used a credit card or debit card at certain store location