A recent decision by the Eighth Circuit in a Telephone Consumer Protection Act (TCPA) class action provides an important pointer for defendants and their counsel with respect to strategy in defending a putative class action. The key takeaway is to take into consideration whether the case was originally filed in federal court or removed from … Continue Reading
With Judge Brett Kavanaugh’s nomination to the Supreme Court, one question to ask is whether, if he is confirmed, that will move the Court to any degree in class action cases. Unfortunately, we don’t have much to look at. The D.C. Circuit, with its small geographic footprint, is not a hotbed of class action filings. … Continue Reading
After a decades-long drought, the Supreme Court recently decided a case involving the Contracts Clause of the Constitution. You might not recall that provision because it is so rarely invoked in modern-day litigation (due to how it has been construed). It provides that “[n]o state shall . . . pass . . . any Law … Continue Reading
Yesterday, in China Agritech, Inc. v. Resh, the U.S. Supreme Court ruled that, under its prior decision in American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), the filing of a putative class action suit tolls the statutes of limitations only to allow individual, non-class suits to be filed after class certification is … Continue Reading
In Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), the U.S. Supreme Court held that the California state courts lacked personal jurisdiction over claims made by out-of-state plaintiffs in a mass action, where the plaintiffs did not claim that they were harmed in California and the defendant’s relevant conduct did not occur … Continue Reading
In a long-running employment class action in California, a California Court of Appeal recently addressed once again the use of surveys of class members. The case was the subject of a prior California Supreme Court decision (see my June 2014 blog post), which provided guidance on the use of statistical evidence by plaintiffs to attempt … Continue Reading
When a defendant receives an adverse decision on a motion for class certification, whether the court of appeals grants permission to appeal under Rule 23(f) of the Federal Rules of Civil Procedure (or a state-court equivalent, if available) can be a crucial turning point in the case. If the court of appeals will not hear … Continue Reading
At the recent DRI Class Action Seminar, I asked Alison Frankel of Thomson Reuters how she thinks corporate defendants should best handle media inquiries relating to class action suits. Here’s what I gleaned from her answer: Statements issued by corporate media relations departments are usually worthless. They do not help a reporter understand a court … Continue Reading
This week the Supreme Court issued a new opinion in a case that involved the scope of personal jurisdiction in a nationwide mass action brought in a state court. Although it is not entirely clear the extent to which this decision may apply in a class action or in a case brought in federal court, … Continue Reading
The U.S. Supreme Court recently granted certiorari in class action cases involving: (1) class action waivers in employment contracts; and (2) whether filing of a securities class action tolled a statute of repose. In both cases the questions presented are relatively narrow, but opinions issued by the Supreme Court potentially could have broader implications for … Continue Reading
One of the first significant class action appellate decisions of 2017 was issued this week. In Briseno v. ConAgra Foods, Inc., No. 15-55727 (9th Cir. Jan. 3, 2017), the Ninth Circuit held that Rule 23 does not require that it be “administratively feasible” to identify class members in order for a class to be certified. … Continue Reading
I thought readers might find helpful some broader observations on strategies for defending class actions in 2016: Dig in Deep Early: Some defense counsel are accustomed to the practice of filing a motion to dismiss in virtually every putative class action. Some in-house counsel, eager to save costs, have pushed defense firms to agree to … Continue Reading
Today the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, addressing whether the plaintiff had standing to sue in a putative class action brought under the Fair Credit Reporting Act (“FCRA”). Like some other opinions we have seen from the eight-member Court following Justice Scalia’s death, this decision is relatively narrow in … Continue Reading
As our nation and especially the legal community mourn the death of one of the most charismatic and influential Supreme Court justices in our history, one question that might be asked is how Justice Scalia’s death might impact pending class action cases. There are two pending class action cases of broad significance: Spokeo, Inc. v. … Continue Reading
A recent decision by a Florida appellate court highlights an important point that defendants can effectively raise in other jurisdictions as well – a named plaintiff’s failure to timely seek certification can, by itself, be grounds for denial of certification. In Osborne v. Emmer, No. 4D15-1761, 2016 Fla. App. LEXIS 1445 (Fla. 4th DCA Feb. … Continue Reading
Today the U.S. Supreme Court decided Campbell-Ewald Co. v. Gomez, No. 14-857. The question presented was whether an unaccepted offer of full relief on the named plaintiff’s individual claim will render a putative class action moot. The answer is “no,” according to a 5-3 opinion by Justice Ginsburg (with a separate concurrence by Justice Thomas). … Continue Reading
Yesterday, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, No. 13-1339 (SCOTUSBlog page). The question presented is “Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action … Continue Reading
Campbell-Ewald Co. v. Gomez was argued yesterday in the U.S. Supreme Court. It is one of several major class action cases that will be decided by the Court this Term. It presents the question of whether a putative class action case becomes moot when the defendant offers complete relief to the named plaintiff (for more … Continue Reading
There has been a lot of activity in the federal courts of appeals recently regarding the use of offers of judgment to named plaintiffs in class actions. The Fifth and Seventh Circuits recently held that an unaccepted Rule 68 offer to the named plaintiff for full relief will not render a putative class action moot … Continue Reading
As highlighted in my June 16 blog post, the Supreme Court has granted certiorari, in Campbell-Ewald Co. v. Gomez, No. 14-857 (SCOTUSblog page), to decide whether an offer of complete relief to a named plaintiff renders a putative class action moot. Notwithstanding that the Supreme Court is about to decide this question (with oral argument … Continue Reading
Liability insurers are sometimes faced with a difficult scenario: Their insured has been sued in a class action with potentially large stakes. The insurer believes they have no duty to defend and a denial of coverage is appropriate. But the result of declining to defend the insured is likely to be a “collusive” class action … Continue Reading
I’ve been delayed a bit in reporting on this, but the October 2015 term of the U.S. Supreme Court is shaping up to be a blockbuster one for class action law. Perhaps even bigger than the October 2010 term, which brought us Wal-Mart v. Dukes, Smith v. Bayer Corp. and AT&T v. Concepcion. I previously … Continue Reading
The U.S. Supreme Court recently granted certiorari in Spokeo, Inc. v. Robins, No. 13-1339 (SCOTUSblog page), to decide whether a plaintiff who does not suffer any injury has Article III standing to sue for violation of a federal statute. The case will not be argued until the next Supreme Court Term, likely in October. It … Continue Reading
The Third Circuit recently joined the Seventh, Eighth, and Ninth Circuits in holding that, where a Daubert challenge is made to the use of expert testimony in support of class certification, the Daubert challenge must be resolved at that stage. The Third Circuit explained that “[e]xpert testimony that is insufficiently reliable to satisfy the Daubert … Continue Reading
