A Midyear Review Of State Attorney General Enforcement

general

Senators, governors and state attorneys general are racing their campaigns toward election. While appealing to voters, attorney general candidates will inevitably target industries with positions and promises of using their state enforcement powers. How AGs will fare is partly a question of public policy, as seen, for example, with issues of data privacy, opioids and consumer finance. And businesses should consider the proactive engagement of state AGs on both legal and political levels.

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

Communications

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 their claims.

As we have previously noted, the question of whether American Pipe tolling applies to subsequent class action filings, not just subsequent individual actions, is important because the answer dictates whether American Pipe tolling principles enable the filing of successive (stacked) class actions in a seemingly endless effort to finally achieve certification under Federal Rule of Civil Procedure 23.

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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 federal courts within the Ninth Circuit, they also offer insights for companies defending against false advertisement or labeling class action claims.

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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.

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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

Communications

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.

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