Archives: Civil Procedure

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Federal Magistrate Recommends Dismissing TCPA Class Claims Against Coke

Photo of Casie CollignonPhoto of Justin WinquistBy Casie Collignon and Justin Winquist on Posted in Rule 12 Motions to Dismiss, TCPA
Responding to an invitation to text can satisfy TCPA’s Express Consent Requirement In a Telephone Consumer Protection Act (TCPA) putative class action against Coca-Cola and its marketing agent, a Northern District of Alabama magistrate judge recommended dismissal on September 3, 2014, of most of the plaintiff’s claims on grounds that the plaintiff gave Coca-Cola prior … Continue Reading

Supreme Court To Decide CAFA Pleading Standard

Photo of Patrick T. LewisBy Patrick T. Lewis on Posted in Class Action Fairness Act, Standing
On April 7th, the Supreme Court granted certiorari in Dart Cherokee Basin Operating Company, LLC v. Owens, a case originating from the Tenth Circuit. In that case, the Court will resolve a circuit split over the pleading standard applicable to determining CAFA removal jurisdiction. The question presented is: Whether a defendant seeking removal to federal court … Continue Reading

IRS Fighting Hard to Avoid Tea Party Class Action Claims

By Jennifer Benda on Posted in Class Actions Privacy, Rule 12 Motions to Dismiss, Standing
The IRS recently filed a motion to dismiss class action claims brought by Tea Party groups.  In NorCal Tea Party Patriots, et. al. v. IRS, et. al., S.D. Ohio, Case No. 1:13-cv-00341, Tea Party groups asserted that the IRS singled out their organizations when those organizations sought exemption from taxation pursuant to Section 501(c)(4) of … Continue Reading

Once Again, Clapper Defeats Data Breach Class Action

By Judy Selby on Posted in Class Actions Privacy, Class Certification, Consumer Fraud, Data Breach, Rule 12 Motions to Dismiss, Standing
Article III standing has once again proved to be an insurmountable hurdle for data breach class action plaintiffs whose personal information hasn’t been misused.  In Galaria v. Nationwide Mutual Insurance Co., an Ohio federal court relied on the United States Supreme Court’s decision in Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013), and held … Continue Reading

Supreme Court to Review Sixth Circuit’s Reinstatement of ERISA “Stock-Drop” Class Action

Photo of Elliot MorrisonPhoto of Patrick T. LewisBy Elliot Morrison and Patrick T. Lewis on Posted in Class Action Trends, ERISA, Rule 12 Motions to Dismiss, Securities
The Supreme Court recently agreed to resolve a circuit split on the pleading requirements for claims that ERISA fiduciaries imprudently invested employee stock ownership plan (ESOP) assets in the stock of the employer—so-called “stock-drop” cases.  Under the “Moench presumption,” named after Moench v. Robertson, 62 F.3d 553 (3d Cir. 1995), courts presume that investments of … Continue Reading

When is the Proper Time To Challenge Standing in Class Actions? New Jersey Says To Wait Until Class Certification.

Photo of Casie CollignonBy Casie Collignon on Posted in Advertising Class Action, Rule 12 Motions to Dismiss, Standing
On Monday, a New Jersey federal judge denied a motion to dismiss for lack of standing in a deceptive marketing class action in which the named plaintiffs had not purchased a number of the named products. This decision effectively held that, in a class action, the appropriate time to analyze standing is at the class … Continue Reading

Common and Predominating Damages: Comcast Opinion Extends Wal-Mart v. Dukes’ Standards for Class Certification but Leaves the Question of Daubert for Another Day

Photo of Casie CollignonBy Casie Collignon on Posted in Antitrust, Class Certification, Expert Testimony, Predominance, Rule 23 Requirements
Co-authored by: John B. Lewis, Dustin M. Dow, Patrick T. Lewis, Danyll W. Foix, and Rodger L. Eckelberry Editor’s Note: This Executive Alert was published by members of BakerHostetler’s Securities Litigation and Regulatory Enforcement Team, Employment Team, and BakerHostetler’s Class Action Team. On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, Case … Continue Reading

Comcast Oral Argument Raises Interesting Questions Surrounding the Application of Daubert to Class Certification

Photo of John LewisBy John Lewis on Posted in Antitrust, Civil Procedure, Class Certification, Expert Testimony
Editors’ Note:  The following post was originally published on Baker’s Employment Class Action blog. On November 5, 2012 the U.S. Supreme Court heard arguments in Comcast  Corporation v. Behrend, No. 11-864 which arose from an action brought by Philadelphia cable subscribers alleging that Comcast monopolized Philadelphia’s cable market and excluded competition in violation of Sections 1 and 2 of … Continue Reading

Can Subsequent Wal-Mart Class Actions Survive? Texas Federal Court Says “No”

By Jeanine Conley on Posted in Class Action Tolling, Class Action Trends
On October 28, 2011, in the wake of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) denying class certification to plaintiffs seeking to represent a group of over 1.5 million women in a gender discrimination action against Wal-Mart, Stephanie Odle and six other named plaintiffs filed another action … Continue Reading

The Stakes are High as Supreme Court Considers Evidentiary Standards for Expert Testimony on Class Certification

Photo of Paul KarlsgodtBy Paul Karlsgodt on Posted in Class Certification, Expert Testimony
The Supreme Court is set to hear oral argument in the case of Comcast v. Behrend this November.  The Court’s decision in that case should further refine the Court’s guidance in Wal-Mart Stores, Inc. v. Dukes about the proper standards for federal courts in reviewing motions for class certification.   Recently, a team of appellate and … Continue Reading

Seventh Circuit Allows Settling Plaintiff to Appeal Decertification

By Matthew J. Moody on Posted in Standing
The Seventh Circuit ruled recently in Espenscheid v. DirectSat USA, LLC, No. 12-1943, 2012 WL 3156326 (7th Cir. Aug. 6, 2012), that a class representative may appeal a class decertification order notwithstanding his havng settled with the defendant.  Writing for the Seventh Circuit, Judge Richard Posner held that a settling class representative could maintain standing to … Continue Reading

Class Action Settlements — Res Judicata or Not?

Photo of Robert J. TuckerBy Robert J. Tucker on Posted in Civil Procedure, Class Certification
Co-authored by:  Rodger Eckelberry Defendants settle class actions, in large part, to buy peace.  Without res judicata to bar future claims from the class members, a defendant is not getting what it pays for.  However, as two recent circuit court decisions demonstrate, class members can still try to collaterally attack a class settlement judgment on … Continue Reading

Recent Louisiana Jurisprudence

By Brett Wall on Posted in Class Certification, Expert Testimony, Louisiana, Predominance, State Class Action Law
Contributing Author: Amanda Karp The Supreme Court of Louisiana recently struck down the trial and appellate courts’ class certification in Alexander v. Norfolk Southern Corp., 82 So.3d 1234 (La. 2012) for a lack of predominance of common issues. The case highlights the critical importance of procuring expert testimony on predominance issues at the class certification … Continue Reading

Supreme Court Dismisses Statutory Standing Case

Photo of Patrick T. LewisBy Patrick T. Lewis on Posted in Civil Procedure, Class Action Trends, Insurance, Standing
Contributing Author: Christina Marino On the last day of the 2011 Term, the Supreme Court dismissed First American Financial Corp. v. Edwards, No. 10-708, 2012 WL 2427807 (June 28, 2012), a case that raised the issue of whether plaintiffs have standing to sue for violations of federal statutes, even when the plaintiffs have suffered no … Continue Reading

Interview With Professor Mary Kay Kane (Part III)

By Deborah Renner on Posted in Civil Procedure, Class Action Trends, Erie Doctrine
Editor’s note:  This is the final post in a series of posts from the Class Action Lawsuit Defense Blog’s interview with Mary Kay Kane, former Dean and Chancellor and current Emeritus Professor of Law at the University of California’s Hastings College of the Law. Professor Kane is the author of the Nutshell on Civil Procedure, … Continue Reading

Trial By Formula, Statistical Sampling, and the Right to Due Process

Photo of Paul KarlsgodtBy Paul Karlsgodt on Posted in Class Certification, Expert Testimony
A common temptation in class action litigation is to fashion procedures based on “rough justice” to avoid overburdening the courts or attempting to redress alleged mass harm.  Over the past decade, as storage and computing power have increased exponentially, it has become increasingly tempting to use statistical sampling as a proxy for the actual adjudication of … Continue Reading

Data Breach Class Action Against Google Allowed to Proceed Under Stored Communications Act

By Deborah Renner on Posted in Class Action Trends, Data Breach, Standing
In most consumer fraud and other class actions, the decisive point in the litigation is often the class certification battle, where the stakes are high as the costs to a company in terms of money and reputation are on the line.  Before ever getting to the class certification stage, defendants typically try to knock the claims … Continue Reading

Northern District of California Decision Highlights Impact of Prior Settlements on Subsequent Related Class Actions

By Benjamin D. Pergament on Posted in Civil Procedure, Issue and Claim Preclusion, Settlements
The United States District Court for the Northern District of California recently issued an order demonstrating the effects that a release in a settlement in one class action may have on claims in subsequent class actions.  In McNeary-Calloway v. JP Morgan Chase Bank, N.A., Case No. C-11-03058 JCS, United States Magistrate Judge Joseph C. Spero … Continue Reading

Daubert in the Seventh Circuit After Wal-Mart

By Brett Wall on Posted in Expert Testimony
The Seventh Circuit’s recent decision in Messner v. Northshore University HealthSystem, No. 10-2514, 2012 WL 129991 (7th Cir. 2012) built on a 2010 decision from the Circuit and held that, where the admissibility of an expert critical to class certification issues is challenged, the district court must conduct a Daubert review prior to denying class … Continue Reading

Supreme Court Limits Use of Injunctions to Thwart Relitigation of Denial of Certification

By Jennifer Vessells on Posted in Anti-Injunction Act, Injunctions, Rule 23 Requirements
In an opinion written by Justice Kagan, the Supreme Court’s recent decision in Smith v. Bayer, 131 S. Ct. 2368 (2011) leaves class action plaintiffs with a way in which to potentially relitigate adverse certification decisions.  Holding that a federal court could not enjoin a state court from determining a motion for certification similar to … Continue Reading

The Supreme Court’s Shady Grove Decision – Erie Unexplained

By Jennifer Vessells on Posted in Erie Doctrine
The Supreme Court’s decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010) does little to clarify the application of the Erie Doctrine.  While many courts endeavor to apply and follow Erie, the classification of statutes and rules as “substantive” or “procedural” is far from uniform.  In a plurality … Continue Reading
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