Heightened Ascertainability Remains a Formidable Requirement to Achieving Class Certification in the Third Circuit: Administrative Feasibility Following City Select v. BMW Bank of North America

Ascertainability

When the Third Circuit Court of Appeals issued its decision in City Select Auto Sales Inc. v. BMW Bank of North America, Inc., in the middle of last year, many interpreted the decision as significantly lowering the bar to certification of class actions.  By recognizing, for the first time, the use of affidavits as a legitimate method of identifying class members, some wondered whether City Select was a shift away from the “administrative feasibility” requirement for ascertainability consistently upheld by the Third, Fourth, and Eleventh Circuits.  Two recent district court decisions in In re Tropicana Orange Juice Mktg. & Sales Practices Litig.[1] and Hargrove v. Sleepy’s, LLC,[2] demonstrate that the “administrative feasibility” requirement—a requirement that to certify a class its members must be capable of being readily identified through an administratively feasible process—remains alive and well in the Third Circuit.

Continue reading this entry

Justices Scrutinize the Pros and Cons of Extending American Pipe Tolling

Tolling

As we previewed last week, the Supreme Court is considering whether the filing of a class action tolls the statute of limitations for absent class members so that they can pursue a separate class action if the initial action fails to be certified.

In Monday’s oral argument of China Agritech, Inc. v. Resh,[i] a few key issues emerged which we highlight below.

Continue reading this entry

CFPB Loses Motion For Reconsideration In Borders Case: Its Next Steps May Provide Insight Into The Mulvaney Enforcement Strategy

Borders

Following Borders & Borders PLC’s (Borders) successful summary judgment motion last summer, the Consumer Financial Protection Bureau (CFPB or Bureau) filed a motion for reconsideration with the federal district court in Kentucky, arguing that the court had misconstrued the affiliated business arrangements (ABAs) exemption under RESPA section 8(c)(4). Late last week, the court not only rejected the Bureau’s motion,[i] but also surprisingly departed from its previous analysis with respect to the ABAs in question. The decision touches on several important RESPA issues and may help reveal the contours of the Bureau’s new RESPA enforcement strategy going forward.

Continue reading this entry

Will The Supreme Court Allow Class Action Stacking?

Ascertainability

Parties have long argued over whether the filing of a class action tolls the statute of limitations for absent class members so that they can pursue a separate class action if the initial action fails to be certified for any reason. Most courts have been understandably wary of the notion that statutory limitations periods can be extended indefinitely by a series of absent class members filing successive (i.e., “stacked”) class actions until certification is achieved. Now, the U.S. Supreme Court will examine that issue in China Agritech, Inc. v. Resh,[1] which is slated for oral argument on March 26, 2018.

Continue reading this entry

The D.C. Circuit Significantly Limits the Reach of the TCPA Statute, but Issues Still Remain

Circuit

On March 16, 2018, almost seventeen months after oral argument, the U.S. Court of Appeals for the District of Columbia finally issued its ruling on several consolidated administrative challenges to the Federal Communications Commission’s (FCC) July 2015 Omnibus Declaratory Ruling and Order (Order) interpreting various provisions of the Telephone Consumer Protection Act. ACA Int’l v. FCC, No. 15-1211 et al., 2018 WL 1352922 (D.C. Cir. Mar. 16, 2018).  The decision focused on four aspects of the 2015 Order: (a) the definition of the term “automatic telephone dialing system” (ATDS), which turned on present or potential capacity with modifications such as software changes; (b) liability for calls to reassigned numbers and the FCC’s “one-call” post-reassignment safe harbor for such calls; (c) the FCC’s clarification that consumers may revoke consent via any reasonable method; and (d) the FCC’s exemption from consent requirements for calls to wireless numbers for which there is exigency and that have a healthcare treatment purpose.

Continue reading this entry