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Will Ascertainability Split Finally Be Resolved?
In the context of civil class action litigation, “ascertainability” includes the identification of individuals who qualify for class membership. Although not an explicit Rule 23 requirement, since the U.S. Court of Appeals for the Third Circuit's decision in Carrera v. Bayer Corporation, 727 F.3d 300 (3d Cir. 2013), federal appeals courts have been divided over the significance and scope of the ascertainability requirement, particularly in litigation involving low-cost consumer goods as consumers may not retain receipts for such items to document proof of purchase.
Despite requests for change, the Judicial Conference Advisory Committee on Civil Rules declined to include ascertainability in its proposed changes to Rule 23. See “Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure” (Aug. 12, 2016). In addition, the U.S. Supreme Court recently rejected two petitions for certiorari earlier this year that would have addressed ascertainability. See Mullins v. Direct Digital, LLC, 136 S. Ct. 1161 (Feb. 29, 2016) and Rikos v. Procter & Gamble Co., 136 S. Ct. 1493 (Mar. 28, 2016). Food labeling cases pending before the U.S. Court of Appeals for the Ninth Circuit, however, could potentially provide the Supreme Court with another opportunity to settle the circuit split.
Third Circuit's Stringent Interpretation of Ascertainability
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?