Archives: Class Action Trends

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Sixth Circuit Adds to Circuit Split About the Enforceability of Class and Collective Action Waivers in Employment Arbitration Agreements

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, … Continue Reading

House Passes Fairness in Class Action Litigation Act of 2017

Yesterday, the U.S. House of Representatives passed the Fairness in Class Action Litigation Act of 2017 (H.R. 985) (the Act). The Act – introduced by Chairman of the House Judiciary Committee Bob Goodlatte – makes several significant changes to class action practice. In passing this Act, the House asserted these changes were intended to “diminish … Continue Reading

The Unwelcome Guest at the Class Settlement Table: Serial Objectors

Finally, the end is in sight. After motions to dismiss, discovery, hearings, a highly contested motion for class certification and mediation, the parties have reached a class settlement. The parties are relieved to end the uncertainty and burdens of a class action, and now turn their attention to obtaining court approval. But suddenly the settlement … Continue Reading

Newsfeeds and Notice – How Social Networks Might Affect Class Action Litigation

The resources from which people obtain, and choose to obtain, information have changed dramatically. A recent and highly publicized discussion of how information is exchanged might be the so-called filter bubble that many social media users experience. This bubble has reportedly caused “autonomous decision-making,” which hypothesizes that people pay attention to only those sources of … Continue Reading

“Yes, I Agree”: With a Click, Uber Drivers Can Waive Right To Bring Class Action Suits

Recently, in a major win for employers and companies that transact business on the internet, the Ninth Circuit upheld the use of arbitration class-action waivers in so-called clickwrap agreements. These types of agreements are commonplace—consumers installing software or signing up for a service are presented with a company’s terms and conditions on their screen, and … Continue Reading

Third Circuit Sets Framework for Numerosity Requirement

Yesterday, in In re Modafinil Antitrust Litig., 3d Cir. No. 15-3475 the Third Circuit provided a framework for analyzing the oft-overlooked numerosity requirement of Rule 23(a)(1)..  The court’s decision both clarified and seemingly bolstered the numerosity threshold. The district court had certified a class of 22 direct purchasers of the drug Provigil that alleged a … Continue Reading

Sixth Circuit Vacates Class Settlement, Finding that Sealed Documents Prevented Objectors from Assessing Settlement’s Fairness

This summer, the Sixth Circuit rejected class action litigants’ filing of the bulk of their class settlement documents under seal. Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299 (6th Cir. 2016). The Sixth Circuit’s decision here is another indication of the increasing scrutiny that federal courts are taking with respect … Continue Reading

Signed, sealed, delivered, but not dismissed: the Sixth Circuit takes on Campbell-Ewald’s offered vs. delivered distinction

Following the Supreme Court’s January decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) that a defendant cannot moot a plaintiff’s individual claim by simply offering to satisfy the plaintiff’s demand before a motion for class certification is filed, but must instead deliver that relief, the lower courts have struggled to identify when … Continue Reading

Post-Tyson Foods, Defendants Should Take the Offensive in Discovery Sampling

Following the Supreme Court’s ruling in Tyson Foods and in light of the greater emphasis on proportionality in the amended Federal Rules of Civil Procedure, defendants can expect to see an increase in the use of sampling in class action discovery as plaintiffs attempt to use statistical evidence to establish both liability and damages. But … Continue Reading

Price Comparison Class Actions Against Retailers Heat up in New York

The common retail practice of comparing an item’s current price with a higher “original,” “regular,” or “MSRP” price has recently come under increasing fire from consumers, who say the higher comparison price is often fictitious and misleads shoppers into believing they are getting a better bargain than they really are. Over the past two and … Continue Reading

Arkansas Federal Court to Consider Sanctioning Attorneys for Using Federal Jurisdiction as “Bargaining Chip” in Negotiating State-Court Class Settlement

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 … Continue Reading

JCPenney Advertising Class Settlement Calls for $50 Million Payment for a California-Only Class

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, … Continue Reading

2015-16 Supreme Court Term – Is it Finally the End for Class Actions as We Know Them?

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 … Continue Reading

Supreme Court Grants Cert in Spokeo Case

The Supreme Court yesterday morning granted Spokeo, Inc.’s petition for a writ of certiorari in the closely watched case of Spokeo, Inc. v. Robins, No. 13-1339. The case presents the question as to whether defendants can be held liable for automatic statutory penalties under the Fair Credit Reporting Act and other federal statutes where the … Continue Reading

Class Action Disgorgement Case Dismissed Against PG&E as Remedy Sought Would Interfere with Filed Rates

Companies in regulated markets, such as insurance and energy, are increasing litigating issues surrounding the “filed rate doctrine,” or in other words, whether they can be sued in a class action where the remedy sought necessarily challenges the rates that are required or approved by the relevant regulators.  Pacific Gas & Electric is a great … Continue Reading

Genzyme First Circuit Decision

First Circuit Sides with Pharmaceutical Manufacturer in Dismissing Shareholder Class Action In a huge victory for Massachusetts-based biologics manufacturer Genzyme Corporation, the First Circuit Court of Appeals on June 5, 2014 affirmed the District Court’s dismissal of a multi-million dollar shareholder class action stemming from allegedly misleading statements regarding the approval prospects for one of … Continue Reading

California Supreme Court Pounds Another Nail into the Coffin of “Trial by Formula” in Class Actions

Editor’s Note: This blog post was originally posted on ClassActionBlawg.com. It is reproduced with permissions. The California Supreme Court issued its long-awaited decision in Duran v. U.S. Bank National Association yesterday, addressing the use of statistical sampling as a way of evaluating aggregate liability and damages in a class action. Although Duran is a wage … Continue Reading

ABA Regional CLE Conference on Class Actions – June 19, 2014 in San Francisco

In case you missed it, the ABA’s Class Actions and Derivatives Suits, Consumer Litigation, and Mass Torts Committees are hosting a Regional CLE conference on June 19th at the University of San Francisco Law School in San Francisco entitled “Who’s in Charge Here?: The Role of Lawyers, Clients, Insurers, and Judges in Class Actions and Mass Tort … Continue Reading

Clapper Again Stymies Data Breach Class Action

Editor’s Note: This blog post is a joint submission with BakerHostetler’s Data Privacy Monitor blog. The U.S. Supreme Court’s decision in Clapper v. Amnesty International USA again has been relied on by a federal district court to hold that the “mere loss of data” in a data breach case does not constitute an injury sufficient to confer … Continue Reading

Wall Street Banks, Stock Exchanges and High Frequency Trading Firms Hit With Securities Fraud Class Action

Last month, the City of Providence, Rhode Island filed a first-of-its-kind class action against Wall Street banks, securities exchanges and brokerage firms over alleged violations of federal securities laws stemming from the defendants’ involvement in so-called “high-frequency trading” (HFT).  HFT has been subject of heightened focus since numerous regulators launched investigations into the practice, which … Continue Reading

Data Breach Class Action Standing Post-Clapper

Our own Judy Selby has a new piece out on Law360 analyzing standing for data breach class cases after the Supreme Court’s decision in Clapper:  “No Data Misuse? No Standing For Data Breach Plaintiffs.”  Judy’s piece highlights the challenges that face data breach plaintiffs post-Clapper, but also points out that: The continued proliferation of data … Continue Reading

No Supreme Court Review of Moldy Washer Cases

Earlier today, the Supreme Court denied certiorari in two highly anticipated appeals of decisions by the Sixth and Seventh Circuit Courts of Appeals to grant class certification over breach of warranty claims involving allegedly defective washing machines.  The denial of cert in Butler v. Sears, Roebuck & Co., Nos. 11-8029, 12-8030 (7th Cir., Aug. 22, … Continue Reading

Those Blasted Exclusions! Court Rules that Notice of TCPA Exclusion in Renewal Policy was Valid

Last week, the Illinois Court of Appeals released an opinion ruling that Cincinnati Insurance Company has no obligation to contribute an additional $4 million to a settlement of a class action claim brought under the Telephone Consumer Protection Act (TCPA).  Windmill Nursing Pavilion Ltd. v. Cincinnati Insurance Co. et al., 2013 IL App (1st) 122431 … Continue Reading
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