Courts continue to devote a lot of attention on the area of class arbitration. The U.S. Supreme Court has a case on its docket, the Eleventh Circuit just decided an issue of first impression, and another important case is...more
Takeaway: Where a class settlement is reached, objectors may be lurking, oftentimes to extort personal payments. Earlier this year, the Seventh Circuit termed this practice “objector blackmail.” Judge Rakoff of the Southern...more
Takeaway: Creative legal theories are easier to allege than prove. And a putative class representative does not always make the best deponent, especially when it comes to substantiating the key allegations in an unfair and...more
Takeaway: There has been a proliferation of “slack-fill” class action litigation. These cases are premised on the notion that a large product container deceives a reasonable consumer, under the theory a reasonable consumer...more
Takeaway: RICO actions tend to be complex. RICO class actions add to the complexity, because class counsel must figure out a way to persuade a court that common issues predominate over individual ones. This is a challenge,...more
Takeaway: Data breaches are now a fact of life, whether for card-carrying consumers or commercial entities victimized by hacking or otherwise required to deal with the consequences. Class action litigation often ensues, where...more
Takeaway: The Ninth Circuit recently ruled that inadmissible evidence may be considered in ruling on a motion for class certification. But does inadmissible evidence really qualify as evidence? Notwithstanding the evidentiary...more
On April 30, the U.S. Supreme Court granted certiorari in two class action cases, on issues involving cy pres awards and class arbitration. Both cases arise out of the Ninth Circuit.
The Supreme Court’s decision in the cy...more
Takeaway: Data breaches are now a fact of life, whether for card-carrying consumers or commercial entities that are either victims of hacking or otherwise required to deal with the consequences. Class action litigation often...more
Takeaway: Alleging a “price premium” or “benefit of the bargain” damages theory is one thing. Proving it is another. A recent decision by Judge Lucy Koh of the Northern District of California shows the difficulty of...more
Takeaway: If you want to avoid exposure to class action litigation, you might think about putting an arbitration clause and class action waiver in your consumer-facing terms and conditions. But if you want those terms and...more
Takeaway: “Most courts to have considered the issue agree . . . that consumer plaintiffs cannot pursue injunctive relief if they are already aware of the alleged deceptive practice.” Ulrich v. Probalance, Inc., No. 16 C...more
Takeaway: In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (“Spokeo II”), the Supreme Court ruled that not every statutory violation gives rise to a concrete injury for standing purposes. An inaccurate report of a person’s...more
Takeaway: While courts continue to grapple with efforts by class action defendants to “pick off” a named plaintiff by mooting his or her individual damages claim, class representatives pressing claims for injunctive and...more
Takeaway: The decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), where the U.S. Supreme Court evaluated Article III standing in the context of a federal statutory violation, continues to generate controversy. Since...more
Takeaway: Civil RICO claims usually present complex issues. As civil causes of action predicated on violations of criminal law, a RICO plaintiff must prove (1) conduct (2) of an enterprise (3) through a pattern (4) of...more
Takeaway: The Class Action Fairness Act (“CAFA”) was enacted to broaden federal diversity jurisdiction over class actions. While CAFA’s local controversy provision requires district courts to “decline to exercise [diversity]...more
Takeaway: Technology advances. Business processes evolve. Contract formation, however, remains an old-fashioned concept. A party must have notice of and actually assent to a contractual provision to be bound by it. Where an...more
Takeaway: To prevail on the predominance issue, an evidentiary showing is required. Defense counsel should prove – either through declaration or deposition testimony – that a particular defense (such as consent under the...more
Technology constantly changes. Firms are periodically put to the choice about whether to upgrade their technology or build a new platform. An expert software vendor/installer can greatly assist firms in making and...more
On May 16, 2016, the United States Supreme Court issued its opinion in Spokeo v. Robins, No. 13-1339, which presented the question of whether a plaintiff has standing in federal court to assert a claim where the only...more
Contracts containing uniform terms and conditions are a common feature of modern commercial life. Consumers are oftentimes required to agree to such contracts in order to buy a good or service, and the contracts typically...more
The issue of consent is a critical issue in cases alleging violations of the Telephone Consumer Protection Act (“TCPA”).
The TCPA prohibits making any call using any “automatic telephone dialing system” to “any...more
“Picking-off” a named class representative is a class action defendant’s dream. Faced with a class action in which the named plaintiff seeks a small recovery on an individual basis but an enormous recovery on a class basis,...more