Two years ago, in Johnson v. NPAS Solutions, LLC, the Eleventh Circuit upended decades’ worth of precedent by categorically forbidding incentive payments to class representatives in class action settlements...more
As this blog has previously discussed, the availability of class arbitration has been significantly restricted after a series of U.S. Supreme Court decisions. However, we have also noted that express preclusion of class...more
8/8/2019
/ AL Supreme Court ,
American Arbitration Association ,
Appeals ,
Arbitration ,
Arbitration Agreements ,
Arbitration Awards ,
Arbitrators ,
Class Action ,
Class Action Arbitration Waivers ,
Class Arbitration ,
Federal Arbitration Act ,
Jurisdiction ,
Motion to Compel ,
Rules of Appellate Procedure
To the surprise of many observers (including us), the Supreme Court held last week in Home Depot USA Inc. v. George Jackson that a third-party defendant could not remove class action claims – under either the general removal...more
6/4/2019
/ CAFA ,
Class Action ,
Co-Defendants ,
Counterclaims ,
Federal Rules of Civil Procedure ,
General Removal Provisions ,
Home Depot USA Inc v Jackson ,
Jurisdiction ,
Remand ,
Removal ,
SCOTUS ,
Third-Party
Class actions typically involve a proposed class of plaintiffs seeking recovery from the same defendant on similar grounds. But that is not the only animal in the class action corral. Rule 23 makes this clear in its very...more
5/9/2019
/ Calculation of Damages ,
Class Action ,
Class Members ,
Class Representatives ,
Decertification ,
Due Process ,
Enforcement Actions ,
FRCP 23 ,
FRCP 23(b)(1) ,
Ponzi Scheme ,
Securities and Exchange Commission (SEC)
Bucking a recent trend and departing from both the Second Circuit’s Katz decision and the Third Circuit’s Kamal decision, the Eleventh Circuit found that a plaintiff had standing to settle a FACTA claim on behalf of a class....more
Just when you thought litigating Telephone Consumer Protection Act (TCPA) class actions was as unsafe as it could get for defendants, the Ninth Circuit said, “Not so fast.”
In McKesson v. True Health, two chiropractic...more
4/1/2019
/ Affirmative Defenses ,
Amicus Briefs ,
Burden of Proof ,
Class Action ,
Class Certification ,
Class Members ,
Consent ,
FRCP 23(b)(3) ,
Petition for Writ of Certiorari ,
Predominance Requirement ,
Reversal ,
TCPA ,
Unsolicited Faxes
We wrote recently about how the certiorari petition in Zappos.com, Inc. v. Stevens was a possible vehicle to put the question of standing in data breach cases back before the Supreme Court. Alas, the Court denied the...more
Yesterday, the Supreme Court sent Frank v. Gaos back to the Ninth Circuit to address the issue of standing under Spokeo.
Frank involved allegations of privacy violations. Plaintiffs brought class action claims against...more
The U.S. Supreme Court suddenly seems to have a little time on its hands. Or at least on its mind. In two different class action cases on its docket this week, the question at hand was timeliness....more
3/1/2019
/ Appeals ,
Cause of Action Accrual ,
Certiorari ,
Class Action ,
Class Certification ,
Collective Actions ,
Consumer Protection Laws ,
Debt Collection ,
Decertification ,
Default ,
Discovery Rule ,
Equitable Tolling ,
FDCPA ,
Federal Rules of Appellate Procedure ,
Filing Deadlines ,
FRCP 23(f) ,
Interlocutory Appeals ,
Leave to Appeal ,
Motion for Reconsideration ,
Nutraceutical Corp v Lambert ,
Rotkiske v. Klemm ,
SCOTUS ,
Split of Authority ,
Statute of Limitations
In recent years, courts have reached divergent conclusions about the circumstances in which a damages class containing uninjured persons can be certified. Although there is some room to debate what constitutes injury, it is...more
11/12/2018
/ Article III ,
Class Action ,
Class Certification ,
De Minimis Claims ,
FRCP 23(b)(3) ,
Generic Drugs ,
Injury-in-Fact ,
Pharmaceutical Industry ,
Prescription Drugs ,
Putative Class Actions ,
Reversal ,
Seventh Amendment ,
Standing ,
Substantial Evidence
These are interesting times at the Supreme Court for class certification defendants—and we aren’t talking about the Kavanaugh confirmation process. No, late last week, in Home Depot USA Inc. v. George Jackson, the Supreme...more
10/3/2018
/ CAFA ,
Certiorari ,
Class Action ,
Co-Defendants ,
Counterclaims ,
Federal Rules of Civil Procedure ,
General Removal Provisions ,
Home Depot USA Inc v Jackson ,
Remand ,
Removal ,
SCOTUS ,
Third-Party
The Eleventh Circuit has held that, absent express language to the contrary in the arbitration agreement itself, whether class arbitration is permitted under an arbitration agreement selecting American Arbitration Association...more
Consumer data breach class actions, for all of their popularity on dockets and especially in headlines, can make difficult cases for plaintiffs. Issues like standing and damages often keep these cases from getting off the...more
8/23/2018
/ Article III ,
Causation ,
Class Action ,
Class Certification ,
Cybersecurity ,
Data Breach ,
Data Privacy ,
Data Protection ,
Data Security ,
Hackers ,
Identity Theft ,
Personally Identifiable Information ,
Popular ,
Predominance Requirement ,
Standing
The Ninth Circuit has agreed to review a panel decision from the court which rejected a settlement in multidistrict litigation over the fuel efficiency of Hyundai Motor America Inc. and Kia Motors Corp. vehicles. The case and...more
8/8/2018
/ Appeals ,
CAFA ,
Choice-of-Law ,
Class Action ,
Class Certification ,
En Banc Review ,
False Advertising ,
Fraudulent Marketing ,
FRCP 23(b)(3) ,
Fuel Standards ,
Hyundai ,
Kia ,
Motor Vehicles ,
Multidistrict Litigation ,
Oral Argument ,
Predominance Requirement ,
Settlement Agreements ,
Vacated
Last week the Sixth Circuit took a big step to extend its reputation as one of the most class-friendly circuits in the country. In Martin v. Behr Dayton Thermal Prods. LLC, Judge Jane Stranch, writing for a unanimous panel,...more
The Supreme Court’s decision in China Agritech Inc. v. Resh means that class action plaintiffs can no longer rely on serial class actions to toll their statute of limitations indefinitely. Instead, the Supreme Court held that...more
6/13/2018
/ Appeals ,
China Agritech Inc v Resh ,
Class Action ,
Class Certification ,
Class Members ,
Equitable Tolling ,
FRCP 23 ,
Putative Class Actions ,
Reversal ,
SCOTUS ,
Securities Fraud ,
Statute of Limitations ,
Subsequent Litigation
The U.S. Supreme Court has decided to hear two important cases next year involving important issues for class action lawyers and the clients they serve.
In Lamps Plus Inc. v. Varela, the Supreme Court will decide “whether...more
5/21/2018
/ Arbitration Agreements ,
Certiorari ,
Charitable Donations ,
Class Action ,
Class Arbitration ,
Cy Pres Funds ,
Due Process ,
Federal Arbitration Act ,
Federal v State Law Application ,
Frank v Gaos ,
Lamps Plus Inc v Varela ,
SCOTUS
Data breaches have become commonplace. Despite the best efforts of many, identity thieves and hackers always seem to find a new vulnerability somewhere in the system of virtually every company that conducts business online....more
4/24/2018
/ Article III ,
Class Action ,
Corporate Counsel ,
Customer Information ,
Cybersecurity ,
Data Breach ,
Hackers ,
Identity Theft ,
Personally Identifiable Information ,
Popular ,
Standing
We’ve already written about Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), in which the Supreme Court reaffirmed that all federal plaintiffs, even those alleging a statutory violation, must have suffered a real, concrete...more
3/28/2018
/ Article III ,
Class Action ,
Class Certification ,
Data Breach ,
Debit and Credit Card Transactions ,
Dismissals ,
FACTA ,
FDCPA ,
Injury-in-Fact ,
Motion to Vacate ,
Personally Identifiable Information ,
Remand ,
Removal ,
Spokeo v Robins ,
Standing ,
Statutory Damages ,
Statutory Violations ,
Subject Matter Jurisdiction
In 2015, the Rule 23 Subcommittee to the Advisory Committee on Civil Rules floated the idea of amending Rule 23 to eliminate the predominance requirement for class certification in the settlement context. The suggestions...more
From the standpoint of class action practice, 2017 was as important for what did not happen as for what did. Here are some of the highlights and lowlights of the 2017 class action scorecard, with a look forward to how the...more
1/26/2018
/ American Pipe & Construction Co. v. Utah ,
Appellate Review ,
Ascertainable Class ,
Bristol-Myers Squibb Co v Superior Court of California - San Francisco County ,
Class Action ,
Class Action Arbitration Waivers ,
Class Certification ,
Congressional Review Act ,
Consumer Financial Protection Bureau (CFPB) ,
Corporate Counsel ,
FACTA ,
FCC ,
Financial Institutions ,
FRCP 23 ,
Microsoft v Baker ,
New Amendments ,
Personal Jurisdiction ,
Retirement ,
Richard Posner ,
SCOTUS ,
Securities Act of 1933 ,
SLUSA ,
Split of Authority ,
Spokeo v Robins ,
Statutory Damages ,
Subject Matter Jurisdiction ,
TCPA ,
The Fairness in Class Action Litigation Act of 2015 ,
Tolling ,
Trump Administration ,
Voluntary Dismissals
Federal courts generally agree that when certification of a class action is denied or the case is dismissed, the statute of limitations on the claim asserted on behalf of the would-be class is deemed to have been tolled...more
In a case that reveals the darker aspects of what can sometimes be an ugly competition for the class counsel role, the Eleventh Circuit rendered an opinion last week finding that a group of plaintiffs were entitled to...more
In Roppo v. Travelers Commercial Insurance Company, the Seventh Circuit held that even after a motion to remand CAFA removal jurisdiction can be sufficiently established by a defendant’s “good faith estimates” of the amount...more
All class-action practitioners understand the importance of a court’s decision to certify a class—the pivotal point at which a putative class action can transform into a reality, promising vast settlement pressure on the...more