Defendant Communications with Members of a Class Action Suit: Toeing the Line


As the saying goes: “Everything in moderation— especially communications from defendant employers to putative members of a class action suit.”

While this might not be exactly how the saying goes, a trial court in Massachusetts recently found that such a principle does limit how and when defendants can contact members of a putative class action.  In Frost v. Malden/Dockside, Inc.,[1] the plaintiff sought to limit the defendant employer from communicating with putative class members until the court had ruled on the issue of class certification, filing a preliminary injunction to cut off settlement communications.  The court granted the injunction, ruling in favor of protecting the settlement process from any untoward influence.

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Eleventh Circuit Creates Circuit Split as to Who Decides Whether an Arbitration Agreement Permits Class 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 as to who gets to decide, in the first instance, whether the dispute is subject to arbitration.  The Court of Appeals for the Eleventh Circuit recently waded into this latter question, creating a circuit split with decisions by four other sister circuit courts of appeals.  While a majority of circuit courts have held that an arbitration agreement’s incorporation of an arbitration forum’s rules can reflect the parties’ “clear and unmistakable” intent to delegate questions of arbitrability to the arbitrator, these four other circuits have held that incorporation of forum rules does not include delegation of authority to decide whether the parties’ agreement permits class arbitration.  The Eleventh Circuit disagrees.

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


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 unauthenticated documents and improper opinion testimony and was therefore inadmissible.  In ruling that evidence offered in support of class certification need not be admissible at trial, the Ninth Circuit has arguably shown again why its reputation as one of the most plaintiff-friendly jurisdictions is well-deserved.

This article addresses (1) the Sali Court’s analysis and holding, (2) how Sali directly conflicts with most other circuits, and (3) the impact this ruling is likely to have on class action defendants in the Ninth Circuit.

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


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]

Plaintiffs Sasha Antman and Gustave Link alleged that the company failed to protect their personal information, as well as that of a putative class of individuals similarly situated.  Plaintiffs stated claims for violation of California’s Unfair Competition Law (UCL), negligence, and breach of implied contract.[3][4]

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2018 Consumer Protection Priorities of State Attorneys General


Attorneys general (AGs) are not only lawyers for their states; they are enforcers, regulators, and even public policy advocates. With a broad consumer protection mandate, a state AG is able to reach a wide range of industries that have a consumer touch. When joining in multi-state actions, and even more so those with public policy implications, AGs have a significant voice nationally to affect interests of business. We attended a series of multi-state AG meetings in June that highlighted three areas emblematic of these issues and powers.

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