Duane Morris Class Action Review - 2023 - Report - Page 280
In 2022, the Sixth Circuit addressed these issues in Fox, et al. v. Saginaw County,
Michigan, 35 F. 4th 1042 (6th Cir. 2022). The plaintiffs in Fox, a group of property
owners who failed to pay timely real estate property taxes, filed a class action alleging
that the defendants foreclosed on and sold their properties and kept all of the sale
proceeds, beyond the actual taxes due. The Michigan Supreme Court, during the
pendency of the instant litigation, held that the counties’ practice violated the Michigan
Constitution’s takings clause. Asset Recovery Inc. (ARI) contacted potential plaintiffs
about pursuing relief on their behalf. The plaintiffs filed a motion requesting that the
district court order ARI to: (i) stop contacting class members; and (ii) allow class
members to back out of their any agreements made with ARI. The district court granted
the plaintiffs’ motion. On appeal, the Sixth Circuit affirmed in part and reversed and
remanded in part. The Sixth Circuit found that the district court had the authority to
protect the class action process and did not abuse its discretion when it acted to protect
class members from ARI’s post-certification communications. However, the Sixth Circuit
reasoned that the district court abused its discretion by allowing class members who
hired ARI before the class was certified to rescind their agreements. For these reasons,
the Sixth Circuit affirmed in part and reversed in part the district court’s ruling.
P.
Amendments To Complaints In Class Actions
When discovery is undertaken in class actions, the plaintiffs often seek to expand their
class claims by way of amendments to the pleadings. Depending on the particular
circumstances of the litigation, the amendment may present extraordinary costs to the
defendant. The propriety of amendments to a class action complaint can generate
significant court filings.
In 2022, the Sixth Circuit affirmed a district court’s order allowing an amendment to a
class action complaint even after a plaintiff failed to adhere to the court’s scheduling
order. In the case of In Re National Prescription Opiate Litigation, 2022 U.S. App.
LEXIS 31328 (6th Cir. Nov. 10, 2022), the plaintiffs in a multi-district litigation alleged
that manufacturers of prescription opioids grossly misrepresented the risks of long-term
use of the drugs and distributors failed to properly monitor orders, leading the current
opioid epidemic. The defendant Meijer, Inc. requested a writ of mandamus from the
Sixth Circuit regarding the district court’s allowance to plaintiffs to file an amended
complaint after the passage of the scheduling deadline. The district court chose the
instant action for bellwether treatment in 2021, and thereafter plaintiffs amended their
complaint to add Meijer as a defendant. Meijer argued that the plaintiffs violated Rule 16
because they filed the amended complaint after the 2019 deadline without leave from
the district court. The Sixth Circuit denied the request for a writ of mandamus. The Sixth
Circuit noted that the district court’s scheduling order explicitly provided permission for
the plaintiffs to file an amended complaint in the event the case was selected as a
bellwether case. The Sixth Circuit opined that because the scheduling order permitted
such amendments from the outset, the plaintiffs did not need the district court’s leave to
amend. Id. at *2. However, the Sixth Circuit explained that the scheduling order was
somewhat concerning because it essentially could allow the plaintiffs to name new
defendants after the close of discovery up until the eve of trial. Id. The Sixth Circuit
reasoned that this scenario did not occur here and Meijer was added well ahead of trial,
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Duane Morris Class Action Review – 2023
