Category Archives: Class Actions

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Taking the Pulse of Ascertainability in the Ninth Circuit after Briseno v. ConAgra Foods, Inc.

Ascertainability
Most federal courts have found that Rule 23 of the Federal Rules of Civil Procedure implicitly requires a showing that members of a proposed class are readily identifiable or “ascertainable” for a class to be certified. For some time now, however, there has been a split among the United States Courts of Appeals over what … Continue reading this entry

Second Circuit Court of Appeals Reaffirms Strong Federal Preference for Enforcing Arbitration Agreements in the Evolving Era of Web-based Contracting

Uber
In a big win for the tech industry and app developers, and for other companies seeking to enforce arbitration agreements through web-based interactions, last week the Second Circuit Court of Appeals held that the plaintiff in a putative class action entered into an enforceable arbitration agreement when he registered for Uber Technology, Inc.’s (Uber) app. … Continue reading this entry

Seventh Circuit Underscores Important Role for Pre-Certification Challenges to Expert Witnesses

Seventh
In order to certify a class action, it is the plaintiff’s burden to prove that all of the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied. In some class actions, plaintiffs cannot proceed without expert testimony that can prove, at a minimum, that issues can be addressed based on common … Continue reading this entry

Seventh Circuit Rejects Latest Attempt To Pick Off TCPA Plaintiffs

Ascertainability
Defense counsel facing potential multimillion-dollar judgments from the threat of class action proceedings—particularly class actions brought under statutes providing for treble damages and attorney’s fees, such as the Racketeer Influenced Corrupt Organizations (RICO) Act, the Real Estate Settlement Procedures Act (RESPA), and the Telephone Consumer Protection Act (TCPA) —have gotten creative in their attempts to … Continue reading this entry

Utilizing California Civil Code Section 1542 Waivers in Class Action Settlement Agreements: Helpful or Harmful?

Ascertainability
A significant concern for any lawyer negotiating the settlement of a class action in California state court is crafting a settlement agreement that the court will ultimately approve. Under California law, a judge must approve of any proposed settlement agreement disposing of a class action.[i]  A judge will only approve a class action settlement that … Continue reading this entry

U.S. Supreme Court Says: We Mean It--You Can’t Single Out Arbitration Agreements for Disfavored Treatment

Trump
On Monday, May 15, 2017, the Supreme Court issued its latest reminder to state and lower federal courts that they must treat arbitration agreements as equally valid as all other contracts.  In Kindred Nursing Centers Limited Partnership v. Clark et al., 581 U.S. ___ (2017), the Court confronted a rule imposed by the Kentucky Supreme … Continue reading this entry

Foley Announces New Class Action Blog and Consumer Class Action Group

Foley is restructuring its practice groups to bring our considerable consumer law and class action expertise together in a single forum.  We are proud to announce the formation of our new Consumer Law, Finance & Class Action Practice Group. Consistent with our new focus, we are also expanding the scope of this blog to reach a broader array … Continue reading this entry

Challenging Limited Issue Class Actions

A class action that aggregates the claims of individual plaintiffs against a common defendant can promote judicial economy and maximize efficiency.  However, even the pursuit of class certification can promote abuse.  In the words of Judge Henry Friendly, class actions can at times result in “blackmail settlements,” where even defendants with meritorious defenses feel compelled … Continue reading this entry

Increasing Legal Scrutiny of Website Accessibility in the Real Estate Industry

From fair housing laws to licensing requirements, the real estate industry is accustomed to navigating various legal constraints and requirements. However, as a result of current ambiguity in the law, class action lawsuits based upon website accessibility pose an emerging threat to real estate brokers, lenders, homebuilders, and ultimately, any company that has a web … Continue reading this entry

Supreme Court Vacancy Leaves Spokeo Outcome Even More Uncertain

The consumer financial services industry is wondering how the sudden passing of United States Supreme Court Justice Antonin Scalia will affect the pending Spokeo, Inc. v. Thomas Robins case. Spokeo is a key case dealing with whether a class action lawsuit may be brought by a consumer who suffered no actual injury, based solely on a claimed … Continue reading this entry

Reply Brief filed in Spokeo v. Robins – Oral Argument next on Nov. 2

In its reply brief in Spokeo v. Robins, petitioner Spokeo comes out of the gate with the consequential argument that for Robins to prevail, the Supreme Court must accept his position that every violation of a statutory right qualifies as an injury-in-fact. Indeed, the case is much larger than Fair Credit Reporting Act (FCRA) inaccuracies … Continue reading this entry

D&O Policies: A Possibility for TCPA Coverage?

Business is booming for plaintiffs’ attorneys wielding the Telephone Consumer Protection Act (TCPA). The TCPA restricts unsolicited telemarketing by fax, voice calls and text messages. Violations can trigger liability of at least $500 for each fax, text or call. The prospect of lucrative recoveries has proven to be attractive, with the volume of TCPA class … Continue reading this entry

Response from Robins in the Spokeo Case at the U.S. Supreme Court

This week, the respondent in Spokeo v. Robins filed his merits brief. The main thrust of the brief challenges Spokeo’s assertion that Robins lacks standing without “real-world” injury. Instead Robins argues that he meets the Constitution’s “Case and Controversy” requirement on one of several bases to vindicate his statutory rights under the Fair Credit Reporting Act … Continue reading this entry

Supreme Court to Decide Whether Offer of Judgment Can Moot TCPA Class

Deciding to step in to resolve a splint in the Circuits, the United States Supreme Court announced today that it granted a petition for a writ of certiorari in Campbell-Ewald Co. v. Gomez, No. 14-857. That means that the Court will finally address an issue left open in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. … Continue reading this entry

U.S. Supreme Court Accepts Review of Robins v. Spokeo, Inc.

The Supreme Court recently accepted review of one of the most talked about privacy class action and consumer cases of the past year, Robins v. Spokeo, Inc., No. 13-1339 (U.S.). The issue before the Court is whether Congress can confer Article III standing on a plaintiff who suffers no concrete harm, but who can recover … Continue reading this entry

Ninth Circuit Remands FCRA Case – Actual Injury Not Required for Article III Standing

On Tuesday, the Ninth Circuit remanded Robins v. Spokeo, Inc., Case No. 2:10-cv-05306-ODW-AGR on the basis that the district court erred in finding that the Plaintiff, Thomas Robins (“Robins”), did not have Article III “injury-in fact” standing to file his suit alleging violations of Fair Credit Reporting Act (“FCRA”) §§1681b(b)(1), 1681e(b), and 1681j(a).… Continue reading this entry

Ninth Circuit Rejects Constitutional Challenge to Bank Credit Card Overlimit and Late Fees

In the case of In re: Late Fee and Over-Limit Fee Litigation (Pinon v. Bank of America, N.A.), No. 08-15218, ___ F.3d ___ (9th Cir., Jan. 21, 2014), a plaintiff class of cardholders contended that overlimit and late payment fees charged by banks to credit card-holders grossly exceed the actual harm caused to the issuing banks. The … Continue reading this entry

Sixth Circuit in Carter Refuses to Defer to HUD's RESPA Guidelines

In a decision two years in the making, on Wednesday, November 27, 2013, the Sixth Circuit Court of Appeals brought some clarity to the use of affiliated business arrangements (“ABAs”) under Real Estate Settlement Procedures Act (RESPA).  In doing so, the Court dealt a serious blow to what has become a veritable cottage industry for … Continue reading this entry

SCOTUS Upholds Enforceability of Class Action Waiver in Arbitration Agreements

Once again demonstrating its strong support for enforcement of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA), and class action waivers, the Supreme Court today struck a blow to what had become a potentially promising argument for plaintiffs’ counsel. In American Express Co. v. Italian Colors Restaurant, No. 12-133, the Court in a 5-3 decision … Continue reading this entry

New SCOTUS Class Arbitration Ruling May Have Limited Impact

On June 10th, the Supreme Court issued a unanimous opinion in Oxford Health Plans v. Sutter, No. 12-135, that will be viewed by some as increasing the risk of class proceedings in arbitration. The sweep of the case, however, will likely be much more limited for several reasons. In Oxford, the Supreme Court rejected a … Continue reading this entry

As the CFPB Turns ... And Other Consumer Financial Services News

In this week’s episode of As the CFPB Turns questions remain regarding Director(?) Richard Cordray’s constitutional authority to act as the Director of the CFPB.  House Financial Services Committee Chairman, Jeb Hensarling, R-Texas, advised Cordray that the D.C. Circuit’s recent decision, which found that President Obama’s recess appointments to the National Labor Relations Board were … Continue reading this entry

Court Limits Use of Zip Codes in Massachusetts Credit Card Transactions

In a recent decision, Tyler v. Michaels Stores, Inc., the Massachusetts Supreme Judicial Court held that zip codes are “personal identification information” and that a merchant asking for that information during a credit card transaction violates a Massachusetts statute [G.L.c. 93, Section 105(a)] designed to protect consumer privacy, becoming the second state high court, after California, to declare … Continue reading this entry

Bank Sued Over "Unfair" and "Deceptive" Overdraft Fees

A large bank was sued in federal court in New York last week by a putative nationwide class alleging that the bank engaged in “unfair, deceptive, and unconscionable assessment and collection of excessive overdraft fees.” The complaint accuses HSBC Bank and other companies of manipulating the order of customers’ debit card transactions to maximize overdraft … Continue reading this entry

Developments in Law, Factual Discovery Lead Federal Judge to Decertify Class Action

In Campbell v. First American, a federal judge in Maine has issued a ruling decertifying a class action involving claims that First American Title Insurance Co. overcharged refinance customers for their title insurance. As members of the financial services industry may be all too aware, class certification is a critical point in litigation. A decision to … Continue reading this entry