On June 6, 2017, in Kamal v. J. Crew Grp, Inc., No. CV 2:15-0190, 2017 WL 2443062 (D.N.J. June 6, 2017), the United States District Court for the District of New Jersey dismissed a plaintiff’s second attempt to assert a claim for violations of the Fair and Accurate Credit Transactions Act (FACTA) for lack of standing in a decision that highlights the evolving boundaries of injury-in-fact in the wake of Spokeo.
The plaintiff alleged that three different J. Crew stores provided him with purchase receipts that violated the FACTA amendment to the Fair Credit Reporting Act (FCRA). Specifically, he alleged that the receipts included the first six and last four digits of his credit card number—more than “the last five digits” of his card number authorized to be printed under FACTA. Plaintiff’s first amended complaint (FAC) initially survived a Fed. R. Civ. P. 12(b)(6) challenge; however, the court subsequently stayed the case pending the outcome of Spokeo, Inc. v. Robins.
On May 16, 2016, the Supreme Court decided Spokeo, holding that, under Article III, an injury-in-fact must be “concrete and particularized” as well as “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). The Court further observed that a “violation of a procedural right granted by statute can [alone] be sufficient in some circumstances to constitute injury in fact.” Id. at 1549. Continue Reading
On May 9, the Fifth Circuit Court of Appeals issued a decision in Slade v. Progressive Sec. Ins. Co, Case No. 15-300010, 2017 WL 1843737 (5th Cir. May 9, 2017), in which the court discussed how the practice of claim splitting can create an adequacy bar to class certification.
The Sixth Circuit just became the third federal court of appeals to hold that an arbitration provision requiring employees covered by the National Labor Relations Act (NLRA) to arbitrate individually all employment-related claims is not enforceable. Nat’l Labor Relations Bd. v. Alternative Entm’t, Inc., No. 16-1385, 2017 WL 2297620, at *9 (6th Cir. May 26, 2017). The court’s decision sides with the Seventh and Ninth Circuits, which have reached similar holdings, to create a slight majority in the circuit split on the enforceability of such provisions. See Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. 2016), cert. granted (U.S. Jan. 13, 2017); Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), cert. granted (U.S. Jan. 13, 2017). The Fifth and Eighth Circuits have reached the opposite conclusion, holding that class and collective action waivers are indeed enforceable. See NLRB v. Murphy Oil USA, Inc., 808 F.3d 1013 (5th Cir. 2015) (upholding its earlier holding in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013)), cert. granted (U.S. Jan. 13, 2017); Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772, 776 (8th Cir. 2016) (upholding its earlier holding in Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013)). 
Retailers offering online, telephone or catalog purchases may want to review the shipping fees charged to their customers in the wake of several class actions recently filed in California. Multiple retailers have been hit with consumer class actions challenging their shipping fees as exceeding the actual shipping costs incurred by retailers in fulfilling customer orders.
Recent years have seen some upheaval in the lower courts on whether classes may be certified when they include members who lack actual injury. So far, however, the Supreme Court has declined to address this issue, thus increasing uncertainty and risks for litigants.
Recently, the United States Supreme Court heard argument in Microsoft Corp. v. Baker,[1] a case that may significantly impact class-action defense and appellate jurisdiction. Plaintiff classes frequently want to immediately appeal orders denying class certification. But because these orders are interlocutory and not “final” under the relevant statute,[2] plaintiff classes cannot appeal until their individual claims are resolved and a final judgment is entered, which could be expensive and time-consuming. Consequently, some plaintiff classes bypass this process by voluntarily dismissing their claims with prejudice after class certification is denied, effectively converting the interlocutory order into a final, appealable order. In Baker, the Supreme Court may decide whether this tactic is permissible.
