In the latest edition of the Akron Law Review, The Class Action After a Decade of Roberts Court Decisions, Volume 48, Issue 4 (2015), partner Paul Karlsgodt and Dustin contributed to “The Practical Approach: How the Roberts Court Has Enhanced Class Action Procedure by Strategically Carving at the Edges.” Continue Reading
Retailers have been under siege, particularly in California, by putative class actions involving allegations of “false or misleading” advertising practices. Generally, the crux of the allegations is that retailers are inducing customers to make purchases by overstating or fabricating the amount that a customer will save by purchasing an item. In the past two years, at least 32 class actions have been filed regarding such allegations.
On November 10, 2015, the plaintiff in Spann v. JC Penney Corp., Inc., No. 8:12-cv-00215 (C.D. Cal) filed an unopposed motion for preliminary approval of class settlement. The proposed settlement terms call for JCPenney to pay $50 million for the benefit of the class members, including attorneys’ fees and costs of administration. The settlement also requires JCPenney to change its pricing practices and implement training and auditing programs to ensure JCPenney “complies with California’s price comparison advertising laws.” Continue Reading
Editor’s Note: The following blog post was originally published by ClassActionBlawg.com. It is republished with permission.
The October 2015 United States Supreme Court Term is already well underway, and there are several cases on the docket that could have a significant impact on class action practice. Here is a summary of the three cases this term that I think could have the biggest impact on class action practice going forward:
Campbell-Ewald Co. v. Gomez, No. 14-857
The Campbell-Ewald case addresses the tactic known as “picking-off” named plaintiffs in class actions, and deals with the question whether an offer of judgment that would provide a named plaintiff complete relief is sufficient to moot the plaintiffs’ claim, even if it is not accepted. The case follows the Court’s 2013 decision in Genesis Healthcare v. Symczyk, where the majority opinion assumed, without deciding, that an offer of judgment had mooted the named plaintiffs’ claim in an FLSA collective action, based on a finding that the issue had been waived below.
A high-profile class action against Barclays over so-called high-frequency trading is heading into a key phase this month, with the court set to decide plaintiffs’ motion for class certification—a pivotal moment in the case’s trajectory.
Strougo v. Barclays Plc, 14-cv-05797 (S.D.N.Y.) began in July 2014, when a Barclays purchaser of Barclays American Depositary Shares (“ADSs”) filed a putative class action against the bank for violating the federal securities laws, alleging the bank made false or misleading statements about its operation of so-called dark pools that artificially inflated the ADSs’ price. Dark pools are alternative trading venues where institutions trade massive quantities of securities anonymously, without revealing the quantity or price to the general public until the trade is complete. Dark pools tend to be fresh feeding grounds for high-frequency traders (“HFTs”), who utilize complex computer algorithms to move in and out of securities positions within fractions of a second. By employing their computer technology to gain access to information about trades occurring in dark pools before other investors do, HFTs have a key informational advantage which they can use to their benefit. Continue Reading
On October 23, 2015, the Third Circuit vacated a summary judgment decision in Yahoo, Inc.’s favor based on a recent Federal Communications Commission (“FCC”) order that expanded the definition of an “autodialer” under the Telephone Consumer Protection Act (“TCPA”). Dominguez v. Yahoo, Inc., No. 14-1751, slip op. at 9 (3d Cir. Oct. 23, 2015).
The plaintiff in Dominguez received a host of text messages from Yahoo on his cell phone, which came with a reassigned telephone number. After successive efforts by the plaintiff to stop the texts, which ultimately totaled 27,809, the plaintiff filed a putative TCPA class action against Yahoo
Partner Paul Karlsgodt will speak as a panelist during a discussion on privacy breaches at the University of Denver Sturm College of Law on November 6 from 10 a.m.-1 p.m. The program is presented by The Privacy Foundation at the Sturm College of Law and the International Association of Privacy Professionals. Other panelists include Alexis Goltra, Chief Privacy Officer, Oracle; Erica Gann Kitaev, Sr. Legal Editor, Privacy & Data Security, Thomson Reuters; Todd Seelman, Denver Managing Partner, Lewis Brisbois Bisgaard & Smith LLP. The panel will be moderated by John Soma, Professor, University of Denver Sturm College of Law and Executive Director, Privacy Foundation.
A federal court recently granted class certification to a group of financial institutions (the “Banks”) in the data breach case against Target Corporation (“Target”) arising from the December 2013 hacking of its computer system, which exposed the financial information of millions of customers. In re: Target Corp. Customer Data Security Breach Litigation, MDL Case No. 14-2522, 2015 U.S. Dist. LEXIS 123779 (D.Minn. Sept. 15, 2015). Specifically, the district court in Minnesota certified a Rule 23(b)(3) class defined as “all entities in the United States and its Territories that issued payment cards compromised in the payment card data breach that was publically disclosed by Target on December 19, 2013.” Id. at *4. The Banks alleged three claims against Target: (1) negligence in failing to provide sufficient security to prevent the hackers from accessing customer data; (2) violation of the Minnesota Plastic Security Card Act (“PSCA”); and (3) violation of the PSCA as a per se violation.
In an attempt to defeat certification, Target argued that the Banks’ injuries were only the “risk of future harm” and not cognizable or susceptible to class-wide proof. Id. at *10. The court rejected this argument, holding that “this is not a case in which [the Banks have] yet to suffer harm.” Id. at *11. Citing a survey from the American Bankers’ Association, the court found that the Banks had to reissue “nearly every card” that was subject to an alert after the Target breach. This cost was borne by the Banks at the time of the breach and as a result of the breach. Id. at *11. Continue Reading
Weeks after having their motion for class certification denied and a proposed global settlement rejected, the plaintiffs in three actions against entities and individuals involved in the Full Tilt Poker Internet gambling operation have dismissed their claims without prejudice. This case illustrates the importance of due process considerations in representative actions.
Full Tilt, PokerStars, and Absolute Poker/Ultimate Bet (collectively, the “Poker Companies”) were the largest online gambling sites operating in the United States following Congress’s enactment of the Unlawful Internet Gambling Enforcement Act of 2006, which made it a crime for gambling businesses to “knowingly accept” most forms of payment “in connection with the participation of another person in unlawful Internet gambling.” 31 U.S.C. § 5363. On April 15, 2011, the U.S. Attorney’s Office for the Southern District of New York shut down the Poker Companies’ websites, seized their assets, and issued arrest warrants for their founders. The DOJ brought civil and criminal actions against the Poker Companies and others involved in the operation, which were settled in July 2012. Continue Reading
As we covered here, the U.S. Supreme Court accepted certiorari in Campbell-Eward Co. v. Gomez, 768 F.3d 871 (9th Cir. 2014), to decide the question of whether a full-relief offer of judgment under Federal Rule of Civil Procedure 68, made prior to the plaintiff’s moving for class certification, would moot a TCPA class action. The Seventh Circuit earlier this month, however, answered a slightly different question in Chapman v. First Index, Inc., Case Nos. 14-2773 & 14-2775 – namely, can a full-relief offer of judgment moot an individual’s TCPA claim if it is made after class certification is denied? Continue Reading
Applying the Supreme Court’s landmark decision in Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (2014) (“Halliburton II”), which allowed companies facing securities fraud class actions to defeat certification by presenting evidence that their alleged false statements did not impact the company’s stock price, the district court on remand held that Halliburton defeated class certification as to all but one of its alleged misstatements. The district court considered expert testimony from both parties before determining that only one of the statements at issue ultimately impacted the price of Halliburton’s stock.
The July 25, 2015 decision by Judge Barbara M. G. Lynn for the Northern District of Texas is the latest chapter in a “long and winding” case that has visited the Supreme Court twice. The Erica P. John Fund, Inc. v. Halliburton Co., No. 2:02-CV-1152-M (N.D. Tex. July 25, 2015). The Erica P. John Fund, Inc. (the “Fund”), is the lead plaintiff in a putative class action against Halliburton alleging violations of the federal securities laws— specifically, that Halliburton made various representations as to the company’s financial status that later turned out to be false, precipitating a massive stock drop.
In 2008, the district court denied class certification after finding that, per binding Fifth Circuit precedent, the plaintiff had not proven that Halliburton’s alleged misstatements had caused the plaintiff’s loss. The Supreme Court later reversed and remanded, holding that so-called loss causation need not be proven at the class certification stage, but rather should be dealt with on the merits. Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2185-86 (2011) (“Halliburton I”). Read more >>