Category Archives: Class Actions

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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 … 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 … 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 … Continue reading this entry

Jurisdiction Issues Dog Multistate Class Actions

Multistate
There is a growing movement to rely on last year’s United States Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court of California[1] to preclude multistate class actions on jurisdictional grounds. In January of this year, relying on Bristol-Myers, Judge Leinenweber of the Northern District of Illinois rejected a named plaintiff’s attempt to bring … Continue reading this entry

The Ninth Circuit’s Decision In In Re Hyundai Underscores The Challenges Of Certifying Nationwide Classes

Ascertainability
Last week, a split Ninth Circuit panel in In re Hyundai and Kia Fuel Economy Litigation[1] vacated the certification of a nationwide class for settlement purposes because the district court failed to address choice-of-law issues and the variations in the relevant state laws, and also improperly “presumed” reliance on allegedly “misleading advertising.”  The case demonstrates … Continue reading this entry

Attacking Nationwide Class Actions Based On Personal Jurisdiction

Ascertainability
Earlier this month, Judge Leinenweber of the Northern District of Illinois rejected a named plaintiff’s attempt to bring a nationwide class action, basing his decision on the Supreme Court’s decision last June in Bristol-Myers Squibb Co. v. Superior Court of California (“Bristol-Myers”).[1]  As discussed in a previous post on this blog, the Bristol-Myers decision—and now … Continue reading this entry

Wisconsin Supreme Court Aligns State Class Action Statute with Fed. R. Civ. P. 23

Wisconsin Supreme Court
On December 21st, the Wisconsin Supreme Court entered an order adopting proposed amendments to Wisconsin’s class action procedures in state court actions, which are “intended to align [the state rule] with the federal class action rule, Fed. R. Civ. P. 23.” See In re proposed amendments to Wisconsin Statutes s.s. 803.08 and 426.110, Pet. No. … Continue reading this entry

Companies Outside Retail And Financial Industries May Have Additional Arguments To Challenge Standing In Data Breach Cases

Data
The data breach at the U.S. Office of Personnel Management was one of the most serious and possibly one of the top ten largest data breaches of the 21st century, compromising background investigation records for some 22 million current and former federal employees.  But a class action lawsuit brought on behalf of those employees was … Continue reading this entry

Third Circuit Eyes Up Consumers’ Standing, Splits With Seventh Circuit

Multistate
Last month, the Third Circuit issued a 2-1 decision in Cottrell v. Alcon Labs.,[1] reversing a district court’s dismissal of a class action lawsuit on standing grounds.  The putative class in Cottrell is comprised of consumers of prescription eye droplet medication used to treat glaucoma.  In their complaint, the named plaintiffs allege that the manufacturers … Continue reading this entry

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

Court
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