Category Archives: Class Actions

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Eleventh Circuit Creates Circuit Split as to Who Decides Whether an Arbitration Agreement Permits Class Arbitration

Arbitration
As the U.S. Supreme Court observed memorably in First Options of Chicago, Inc. v. Kaplan,[1] arbitration disputes often raise “three types of disagreement” relevant to resolution of the dispute: (1) a disagreement as to the merits of the dispute; (2) a disagreement as to whether the dispute is subject to arbitration; and (3) a dispute … Continue reading this entry

Examining Class Cert. At 9th Circ. After Sali Ruling

Sali
The Ninth Circuit is at it again, blazing a different path than its sister circuits. In Sali v. Corona Regional Medical Center, 889 F.3d 623 (9th Cir. 2018), the Court reversed a district court’s order that denied class certification on the grounds that the sole evidence offered in support was a self-serving declaration that included … Continue reading this entry

Court Rules Drivers Lack Standing to Pursue Claims Against Uber Because Data Breach Did Not Include Drivers’ Social Security Numbers

Uber
California companies housing their drivers’ personal information may feel less exposed to liability in light of the Northern District of California’s holding in Antman v. Uber Technologies, Inc. in May.[1] The trial court in Antman found that Uber was not liable to its drivers after hackers illicitly accessed their personal information through Uber’s computer system.[2] … Continue reading this entry

China Agritech: The Supreme Court Ends Class Action “Stacking”

China
This week, in the closely watched case of China Agritech v. Resh,[1] the U.S. Supreme Court issued an important class action ruling, holding that the tolling principles announced in its earlier American Pipe decision[2] do not allow absent class members to file follow-on class action lawsuits where the statute of limitations has otherwise expired on … Continue reading this entry

Standing in False Advertisement Cases is Clarified in the Ninth Circuit

Sali
Recent decisions by and within the Ninth Circuit Court of Appeals elucidate the contours of Article III standing when plaintiffs seek injunctive relief in false advertising cases despite already having awareness of the claimed false advertising of the product. Although these decisions present a threat of coaching plaintiffs to navigate through potential standing pitfalls in … Continue reading this entry

Supreme Court Extends Class Action Waivers To Employee/Employer Contracts

Waivers
The Supreme Court yesterday extended its arbitration-friendly precedent holding in Epic Systems Corporation v. Lewis that the National Labor Relations Act (NLRA) does not prohibit employers and employees from agreeing to class action waivers in employment contracts.… Continue reading this entry

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

China
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?

China
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

4 Tips For Applying Arbitration Agreements To TCPA Claims

Uber
The Telephone Consumer Protection Act remains a hotbed of class action litigation. With statutory damages of up to $1,500 for each call, text or fax, the potential exposure creates the threat of annihilating damages for some businesses. This article discusses an additional, often overlooked, tool for defendants in TCPA cases — moving to compel arbitration. … Continue reading this entry

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

China
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

China
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

Should Your Consumer Arbitration Clause Be Broader?

Clause
(Tate v. Progressive Finance Holdings, LLC, C.D. Cal. 2017) After a Central District of California Judge dismissed a consumer’s Telephone Consumer Protection Act (TCPA) case on a Motion to Compel Arbitration, companies should consider broadening their consumer arbitration provisions. Of particular interest are the following unique circumstances: 1) the Judge dismissed rather than stayed the … Continue reading this entry

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

Arbitration
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.

China
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

What Real Estate Settlement Service and Other Consumer Financial Services Providers Need to Know About the CFPB’s Final Arbitration Rule

Borders
On July 10, 2017, in a surprise move, the Consumer Financial Protection Bureau (CFPB or Bureau) issued its long awaited final rule on arbitration (Final Arbitration Rule).  This rule-making has been a lightning rod issue for the Bureau, and its Final Arbitration Rule is likely to face serious political and legal challenges in the weeks … Continue reading this entry

Seventh Circuit Rejects Latest Attempt To Pick Off TCPA Plaintiffs

China
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?

China
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