Caution: Precertification Communications with Absent Class Members

Are absent members of an uncertified class or Fair Labor Standards Act (FLSA) collective action “parties” and thus “represented” by plaintiff’s counsel? If so, is defense counsel prohibited from speaking with absent class members? At first glance, the answer would appear to be no, for two reasons. First, “a nonnamed class member is [not] a party to the class-action litigation before the class is certified.” Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 593 (2013). And “[u]nder the FLSA, employees become parties to a collective action only by filing written consent” with the court after receiving court-approved notice. Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). Second, district courts cannot restrict parties or counsel in an alleged class action from communicating with putative class members unless the speech restriction is “justified,” generally because of abuse or other misconduct. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101, 104 (1981). Continue Reading

Trial Courts Wrestle with Expert Testimony and Daubert at Class Certification

Expert testimony plays a critical role in nearly all putative class actions, including at the class certification stage where parties rely on expert evidence to address the requirements of Federal Rule of Civil Procedure 23. The Supreme Court has repeatedly held that trial courts must look beyond the pleadings and conduct a searching inquiry to resolve factual disputes about Rule 23’s requirements. But the Supreme Court has not explicitly held whether that searching inquiry requires expert testimony to satisfy the Daubert requirements before being considered in deciding a motion to certify. In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court noted that “the District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings.” 564 U.S. 338, 354 (2011). The Supreme Court expressed skepticism about that holding but did not reject it outright: “We doubt that is so.” Id. As we wrote here, the Supreme Court again addressed expert testimony at the class certification stage in Comcast v. Behrend, 569 U.S. 27 (2013), but deferred the specific question of whether that evidence must satisfy Daubert in order to be considered. Id. at 35 (Ginsburg, J., dissenting). Continue Reading

Q4 2018 Insurance Class Action Update

Hand pushing house button on screen with mortgage contract, keys and boxesThe final quarter of 2018 witnessed a number of new twists on old theories in class actions involving auto and homeowners claims and coverages, as well as further activity in some long-running class actions. Read BakerHostetler’s Q4 2018 Insurance Class Action Update, written by partner Mark Johnson, here.

Courts Remain Skeptical of Certifying Data Privacy Class Actions

Hacker Stealing Data with Binary Data Technology Abstract

In this era where there appears to be a new data security incident announced each month, there is surprisingly little class certification jurisprudence for data security class actions. Indeed, to date we know of only four decisions that have addressed class certification of data privacy actions, excluding settlement certification: Dolmage v. Combined Ins. Co. of Am., No. 14 C 3809, 2017 WL 1754772, at *7 (N.D. Ill., May 3, 2017); In re Target Corp. Customer Data Sec. Breach Litig., 309 F.R.D. 482, 484 (D. Minn., 2015); In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 293 F.R.D. 21, 33 (D. Me., 2013); and In re TJX Companies Retail Sec. Breach Litig., 246 F.R.D. 389, 397-98 (D. Mass., 2007). With only one exception (Target), courts have refused to certify contested data privacy classes.

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Judge Kavanaugh’s Limited Class-Action Jurisprudence Reveals a Healthy Skepticism for Class Actions

By: Robert J. Tucker and Katherine R. Johnston*

Judge Kavanaugh has had very few occasions to address the procedural mechanism of Rule 23. This is not surprising given that few class-action cases end up in the D.C. Circuit. But where he has, Judge Kavanaugh’s commentary suggests that he may be mindful of the realities and difficulties class-action defendants face.

Some insight into Judge Kavanaugh’s views on class actions can be inferred from his dissenting opinion in Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011). In Cohen, the IRS had illegally collected an excise tax on long-distance phone calls. To remedy the problem, the IRS set up a “simple” refund procedure for taxpayers that would allow them to check a box on their tax returns for a standard refund amount. Id. at 719. Taxpayers who were unhappy with their refund amount under the refund rules could file a tax refund suit. Judge Kavanaugh noted that about 90 million Americans took advantage of the refund program.

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Sixth Circuit Upholds Class Certification of FDCPA Claims Despite Spokeo Challenge

Last month, the Sixth Circuit in Macy et al v. GC Services Ltd Partnership unanimously upheld certification of a class under the Fair Debt Collection Practices Act (FDCPA), despite arguments that the named plaintiffs failed to establish Article III standing. The court held the plaintiffs established a concrete injury in fact, without alleging any additional harm beyond a procedural violation of the FDCPA, because they demonstrated that the allegedly incomplete disclosures in debt collection letters sent by GC posed a sufficient “risk of real harm” to the interests protected by the statute – namely, being misled by debt collectors about their rights under the FDCPA.

Plaintiffs Wilbur Macy and Pamela J. Stowe both received a letter from a debt collector that their credit card accounts had been referred to the debt collector for collection. Macy et al v. GC Services Ltd Partnership, No. 17-5593, 2018 WL 3614580, at *1 (6th Cir. Jul. 30, 2018). The plaintiffs alleged the letters violated the FDCPA because they did not inform the plaintiffs that the defendant debt collector was required to provide certain debt and creditor information, and to stop collection activities, only if the plaintiffs disputed their debts in writing. Id.

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