In 2016, the Supreme Court issued its decision in Spokeo Inc. v. Robins, holding that even when Congress has granted parties a statutory right, a procedural violation of that right will not by itself satisfy the “concrete harm” requirement for Article III standing. The Court explained that while harm must be “concrete,” it need not be “tangible.” With little guidance on what this distinction actually means, the Court sent the case back to the Ninth Circuit, then denied a petition for writ of certiorari when the petitioners sought clarification on what constitutes a concrete, “intangible” harm.
Three years later, we are no closer to truly understanding what is required for Spokeo standing. Indeed, the recent decision in Frank v. Gaos, 139 S. Ct. 1041 (2019) not only demonstrates the Supreme Court’s present unwillingness to substantively address standing under Spokeo, but also serves as a sobering example of how a lack of clarity on the issue can derail nearly a decade’s worth of litigation and settlement efforts. Continue Reading
On April 24, 2019, the U.S. Supreme Court ruled that an ambiguous arbitration agreement does not provide a sufficient basis to conclude that parties agreed to class arbitration.
The new year began with dramatic growth in vehicle total loss class actions over payment of sales tax and title transfer and registration fees, interpretations of the filed rate doctrine, and further activity in labor depreciation class actions.
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). 
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 
The Eighth Circuit recently vacated a district court’s final approval of a proposed class action settlement agreement because it did not assess the plaintiff’s standing before approval. Schumacher v. SC Data Center, Inc., 912 F.3d 1104 (8th Cir. 2019).
The 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, 
