permits a defendant to serve on a plaintiff an offer of judgment on specified terms and, if the judgment is not more favorable than the unaccepted offer, the plaintiff must pay the fees and costs incurred after the offer was made. Fed. R. Civ. P. 68. In Interfaith Community Organization v. Honeywell International, -- F.3d --, Nos. 11-3813 and 11-3814, 2013 WL 2397338 (3d Cir. June 4, 2013), a unanimous Third Circuit panel reversed the U.S. District Court for the District of New Jersey's decision declaring the defendant's offers of judgment in the context of an attorneys' fee dispute under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq. (RCRA), null and void. Although the district court believed that the application of Rule 68 in the context of a fee-shifting citizen-suit provision would discourage the very kind of suit that Congress wanted to promote and violated the Rules Enabling Act's prohibition against using rules of procedure to affect substantive rights, 28 U.S.C. § 2072, the Third Circuit disagreed based on the plain language of the relevant rules of procedure and its determination that Rule 68 did not abridge, enlarge, or modify any substantive right. The court also recognized "Rule 68's laudatory purpose of facilitating settlement,"1 and held that there was no conflict between that goal and the statutory fee shifting provision encouraging plaintiffs to bring meritorious suits to enforce environmental laws, allowing defendants to use Rule 68 to attempt to settle attorneys' fee disputes in citizen suit cases. BackgroundThis case involves the cleanup of a contaminated area along the Hackensack River in New Jersey, where dumping occurred from 1895 to 1954. Honeywell International (Honeywell), the successor to the entity that had purchased the subject property, was first ordered to clean up the site in a decision resolving a 1995 suit brought under RCRA's citizen suit provision.2 Companion citizen cases were then filed in 2005, and Honeywell entered int

The decision is yet another major decision from the Court this term relating to class actions. (See, e.g., AT&T Mobility LLC v. Concepcion, No. 09-893 (U.S. Apr. 27, 2011)). The Supreme Court’s decision in Wal-Mart clarifies the "rigorous analysis" that courts must conduct under Rule 23, and reaffirms that the Rules Enabling Act, 28 U.S.C. section 2072(b), cannot be applied in a way that changes substantive rights. Wal-Mart gives antitrust defendants additional potential ammunition to defeat class certification, but it remains to be seen how courts will apply Wal-Mart to a Rule 23(b)(3) antitrust class action instead of a Rule 23(b)(2) Title VII discrimination class action. TheThe named plaintiffs in Wal-Mart alleged that Wal-Mart’s local store managers exercised their discretion over pay and promotion matters in a way that disproportionately favored men over women.

ions.In the August 2023 opinion, the panel again concluded, as it did in the January 2023 opinion, that the plaintiffs had met the requirements for constitutional standing to assert their claims. The panel also again held that the district court erred in finding that the ERISA plans require coverage for all mental health treatment consistent with GASC.However, the recent decision on rehearing includes the changes described below regarding class certification of reprocessing claims, exhaustion and plan interpretation.Class Certification—Reprocessing:In the January 2023 opinion, the Ninth Circuit reversed the district court’s order certifying a class as to the plaintiffs’ ERISA denial-of-benefits claims. The court there held that the “reprocessing” remedy the plaintiffs sought was not available under ERISA, so that using class certification rules to permit class “reprocessing” would expand the class members’ legal rights under ERISA, an impermissible result under the Rules Enabling Act, 28 U.S.C. §2072. The Rules Enabling Act prohibits federal court rules—like those enabling class actions—that would “abridge, enlarge or modify any substantive right.”The August 2023 opinion reaches the same conclusion, but based on a modified analysis. The January 2023 opinion focused on the fact that the reprocessing sought by the plaintiffs was a means to an ERISA remedy, but not itself an ERISA-authorized remedy. In contrast, the August 2023 opinion addressed and rejected the plaintiffs’ argument that the reprocessing would provide the “full and fair review” of their claims that ERISA requires. The August 2023 opinion states that the court had never remanded an ERISA case for reprocessing unless the claimant had shown both that the plan had applied an incorrect standard and that the claimant could be entitled to benefits under the correct standard. However, the Wit plaintiffs’ claim was purely about the “process” and not about the result. The court held that although remand to a plan to reprocess

its” in violation of its fiduciary duties under ERISA. The court held that the Wit plaintiffs adequately showed that these alleged injuries affected the class plaintiffs “in a personal and individual way” and were therefore sufficient to confer standing.Class Certification: The Ninth Circuit reversed the trial court’s order certifying Wit as a class action, but only as to the plaintiffs’ ERISA denial-of-benefits claim. The Ninth Circuit did not comprehensively address the propriety of class certification under the plaintiffs’ separate fiduciary breach claim because it held UBH had forfeited the argument.The Ninth Circuit held that class certification was improper under the denial-of-benefits claim because the “reprocessing” remedy the plaintiffs sought was not available under ERISA. The court reasoned that using class action certification rules to permit class “reprocessing” would expand the class members’ legal rights under ERISA, an impermissible result under the Rules Enabling Act, 28 U.S.C. § 2072. The Rules Enabling Act prohibits federal court rules—like those enabling class actions—that would “abridge, enlarge or modify any substantive right.”The Ninth Circuit held that ERISA articulates the remedies available under each of its provisions, and that “reprocessing” is not available under either of the provisions the Wit plaintiffs invoked: 29 U.S.C. §§ 1132(a)(1)(B) and 1132(a)(3). The court held that “reprocessing” is not available under Section 1132(a)(1)(B) because the statute authorizes only recovery of benefits or enforcement or clarification of rights under the terms of an ERISA plan. But in Wit, the plaintiffs sought “a procedural remedy only” and expressly disclaimed any effort to show that any particular plaintiff would actually be entitled to benefits if UBH were to reprocess their claim. The court further held that “reprocessing” is unavailable under Section 1132(a)(3), because the Supreme Court has interpreted that statute to provide only remedies that were typicall

So why do we need an amendment?Because the changes did not take. As the advisory committee note explains, many courts have incorrectly applied the Rule and have “held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.”Under the Rules Enabling Act, 28 U.S.C. § 2072(b), the federal rules trump any inconsistent case law. But the courts have not reappraised their prior precedent; instead, notwithstanding inconsistencies with Rule 702, they have continued to mechanically recite and apply their obsolete standards.

In addition, proceeding as a class action does not diminish the defendant’s substantive right to prove its defenses in any way. See 28 U.S.C. § 2072(b) (Rules Enabling Act). Similarly, evidence of the condition of the stores involved in the plaintiffs’ individual claims may not be representative evidence admissible to prove liability on behalf of each member of the putative class at other stores — some of which may be thousands of miles away.

See Fed. R. Civ. P. 82 (“These rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts.”); 28 U.S.C. § 2072(b) (“Such rules shall not abridge, enlarge or modify any substantive right.”).Of course, a denial of certiorari is not the same as a decision on the merits.

Lacy, 2020 WL 1469621, at *2 (citation omitted). 28 U.S.C. § 2072(b).Murphy, 2020 WL 2079188, at *16 (emphasis added).Molock, 952 F.3d at 309 (Silberman, J., dissenting).

El’s fourth argument is that Georgia’s scheme for the issuance of warrants conflicts with federal law. Mr. El cites the Rules Enabling Act, 28 U.S.C. § 2072, which provides that a federal court sitting in diversity must apply federal procedural rules as long as the federal rule does not abridge, enlarge, or modify any substantive right. See Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331, 1335 (11th Cir. 2015) (citing Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965)).

The plaintiffs also declared that the defendant’s argument contravenes the Rules Enabling Act. The Act provides that “use of the class device cannot ‘abridge . . . any substantive right.’” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1046 (2010) (quoting 28 U.S.C. § 2072(b)). They also argued that the defendant’s fears of rampant “stacking” of class actions are without basis, noting that the Court had rejected that argument in Smith v. Bayer Corp., 564 U.S. 299 (2011), because existing tools of judicial administration were sufficient to prevent abuse.