November 1, 2023

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This update provides an overview of key class action-related developments during the third quarter of 2023 (July to September).

• Part I summarizes an Eighth Circuit decision addressing waiver of arbitration in putative class actions;
• Part II covers a Fourth Circuit opinion analyzing the impact of class action waivers on class certification proceedings;
• Part III discusses a recent opinion from the D.C. Circuit that weighs in on certification of “issue” classes under Rule 23(c)(4);
• And Part IV discusses two decisions reversing attorneys’ fee awards following class settlements.

I. The Eighth Circuit Holds Defendant Does Not Waive Right to Arbitrate by Waiting Until After Class Certification to Move to Compel Arbitration as to Absent Class Members

In H&T Fair Hills, Ltd. v. Alliance Pipeline L.P., 76 F.4th 1093 (8th Cir. 2023), landowners brought a putative class action against a natural gas pipeline construction company, alleging the company breached its easement contracts with the landowners. Although most of these contracts contained an arbitration clause, some did not—including the contracts with the named plaintiffs. Id. at 1097. After the district court certified the class, the company moved to compel arbitration of the claims of class members whose contracts contained arbitration provisions. Plaintiffs objected, arguing the company waived its right to compel arbitration because it “wait[ed] more than two years after the complaint...

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