The court in In re Flonase Antitrust Litigation, No. 08-3301, 2015 WL 9273274 (E.D. Pa. Dec. 21, 2015) recently held that it could not enjoin the state of Louisiana from pursuing claims that, on their face, fell within the terms of an approved class settlement agreement and release. Even though Louisiana did not object or opt out of the settlement class after receiving both the settlement agreement and settlement notice, the court held that Louisiana was not adequately notified that it could be bound as a class member because the state was not on direct notice; instead, the state received the settlement documents as part of a Class Action Fairness Act (CAFA) Notice. The decision is a stark reminder of the importance of giving adequate settlement notice to class members, including state or federal governments with sovereign immunity. Continue Reading
Please join BakerHostetler’s Class Action Defense and Financial Services Teams on February 10, 2016 from 12:00 to 1:15pm EST for an informative webinar entitled “The New Class Action Risks for 2016 in Consumer Financial Services.”
Webinar speakers will discuss:
• How CFPB rulemaking may affect the class action landscape.
• Are you compromise ready? Tips for data security incident response preparedness.
• Recent class action settlement trends.
Register for this complimentary program here. CLE credit available in California, New York, and Ohio; also via reciprocity in Colorado and New Jersey. CLE credit pending in Illinois.
One obstacle for named plaintiffs in proposed data breach class actions is the extent to which plaintiffs must allege an injury-in-fact to have standing. Disputes often arise about whether proactive efforts to mitigate against the potential misuse of stolen data, such as utilizing credit monitoring services, are sufficient to confer Article III standing. Since the U.S. Supreme Court issued its decision in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), which held that standing could not be established if the speculative danger of possible future acts was not “certainly impending,” federal courts have dismissed many putative class actions arising out of data breaches for a lack of standing. These courts have applied Clapper to conclude that a data breach alone does not constitute an injury, and evidence regarding the potential future misuse of data is often too attenuated to confer standing. Continue Reading
In Adams et al. v. United Services Automobile Ass’n et al., W.D. Ark. No. 2:14-cv-02013, Chief District Judge P.K. Holmes III of the Western District of Arkansas will soon decide whether to sanction attorneys who negotiated a class settlement in federal court and then dismissed and refiled in state court, where the case originated, for approval of the settlement.
Like a number of similar cases filed in recent years, Adams v. USAA was a putative class action filed in Arkansas state court by insureds claiming their insurer improperly deducted labor depreciation from their “actual cash value” payments for structural damage losses covered under their homeowners’ insurance policies. The insurer removed the case to federal court in January 2014, and then moved for partial judgment on the pleadings in April 2014. Shortly thereafter, the parties jointly moved to stay the case pending mediation. Continue Reading
Relying on “basic principles of contract law,” the Supreme Court on Wednesday held that an unaccepted settlement offer and offer of judgment under Rule 68 are “legal nullit[ies]” that have no effect on whether a live controversy remains between the parties. Campbell-Ewald Co. v. Gomez, No. 14-857. The upshot of the Court’s decision is that a defendant cannot moot a putative class action by merely offering full relief to the named plaintiff on his or her individual claims. The Court, however, expressly left open the question of whether payment of full individual relief could moot the case. Continue Reading
In a 6-3 decision yesterday, the Supreme Court in DirecTV, Inc. v. Imburgia, 577 U.S. ___, S. Ct. (2015) reversed a decision of the California Court of Appeals that refused to enforce a class action arbitration waiver on unconscionability grounds. At issue in that case was a class action arbitration waiver that contained a provision stating that the entire arbitration provision was unenforceable if “the law of your state” made class action waivers unenforceable. At the time the contracts were entered into, class action waivers were unenforceable in California under the Discover Bank rule (which, of course, was later overruled by the Supreme Court in Concepcion). The lower California courts in Imburgia sought to escape Federal Arbitration Act preemption by seizing on the “law of your state” clause in the contract, holding that Sections 1751 and 1781 of the California Remedies Act – rather than the Discover Bank case itself – rendered the class action arbitration waiver invalid under California state law. Therefore, to the lower courts, the entire arbitration provision was unenforceable by its own terms notwithstanding any preemptive force of the FAA. Continue Reading
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