Archives: Defense Strategy

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Does Bristol-Myers Squibb Apply to Class Actions? D.C. and Seventh Circuit Issue New Decisions

This week the D.C. Circuit and Seventh Circuit issued decisions addressing a question that has been hotly debated by class action lawyers on the plaintiffs’ and defense sides: whether the Supreme Court’s decision on personal jurisdiction in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017) (blog post) applies to class … Continue Reading

Superiority and Mootness of Injunctive Relief Claim Addressed in Recent Denial of Class Certification

A recent decision by a Washington federal district court caught my eye because it involved a circumstance I often see—a new development in the law results in a class action lawsuit being filed before the defendant has an opportunity to change its practices in response to the change (or clarification) in the law. This decision … Continue Reading

Sixth Circuit Reminds District Courts and Defendants That Notice Must Be Given Before Binding Class Members

A recent decision by the U.S. Court of Appeals for the Sixth Circuit provides an important reminder that if defendants want absent class members to be bound by a summary judgment ruling in their favor, generally they must insist that notice be given to the class before that ruling is made. In Faber v. Ciox … Continue Reading

Lack of Standing in TCPA Class Action Results in Remand to State Court, Says The Eighth Circuit

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

Judge Kavanaugh on Class Actions

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

China Agritech, Inc. v. Resh: Class Actions Toll Statutes of Limitations Only for Individual Suits

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

Nationwide and Multi-State Class Actions Likely Limited by Bristol-Myers Squibb Decision

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

Impact of Surveys and Affirmative Defenses on Class Certification Motion Addressed By California Court of Appeal

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

How Should Corporate Defendants Handle Media Inquiries Regarding Class Actions?

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

Scope of Personal Jurisdiction In Nationwide and Multistate Class Actions Potentially Impacted By Supreme Court Decision In Bristol-Myers Squibb Case

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

Supreme Court to Hear Class Action Cases Involving Class Action Waivers and Tolling of Statutes of Limitations

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

Ascertainability Not Required In Ninth Circuit, But Manageability Remains

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

Defending Class Actions in 2016

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

Spokeo v. Robins Supreme Court Opinion: What Is Concrete Harm?

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

How Will Justice Scalia’s Death Impact Pending Class Action Cases?

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

Delay In Seeking Class Certification May Be Grounds For Denial Of Certification

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

Supreme Court Opinion In Campbell-Ewald Co. v. Gomez: Kicking The Can Down The Road

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

Thoughts on Supreme Court Oral Argument in Spokeo, Inc. v. Robins

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

Offers of Judgment in Class Actions: Fifth and Seventh Circuits Weigh In

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
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