IN BRIEF On 14 December 2021, the UK Government launched a consultation on proposals to reform the Human Rights Act 1998 (“HRA”) entitled “Human Rights Act Reform: A Modern Bill of Rights” (“Consultation”). The Consultation recently closed for most recipients, and its outcome could reshape existing constitutional norms and protections, as well as opening a path to the light-touch regulatory economy reportedly envisaged as part of the UK’s post-Brexit future. IN DEPTH (a) Background to…
In 2021, a new law concerning civil proceedings became effective in Poland. The new law introduced, among other things, three major changes that will impact the proceedings. The online service of court documents during proceedings and online hearings as default are new and have been forced by the Covid-19 pandemic and will last for its duration. They are aimed at facilitating safe communication between the court and the parties to the proceedings. The third change…
On 29 July 2019, the Court of Justice of the European Union (“CJEU”) confirmed in Tibor-Trans/DAF Trucks (C-451/18) [1] that indirect customers can claim damages for damage suffered from cartel-related excessive pricing. However, claimants can sue infringers only in EU Member States within the geographic market affected by the anti-competitive conduct. For establishing jurisdiction, it is no longer relevant where the claimant suffered the damage. Is this the end of the “home-field advantage” for damaged…
UNITED STATES – In a 5-4 decision, the U.S. Supreme Court recently held that classwide arbitration must be explicitly called for in an arbitration agreement to be enforceable. Specifically, the Court held that ambiguity as to whether the parties agreed to arbitration on a classwide basis cannot provide a “contractual basis” sufficient to compel class arbitration. Plaintiff Frank Varela filed the underlying lawsuit against his employer, Lamps Plus Inc., after a hacker gained access to…
To paraphrase Pharaoh Ramses II, so it is written, so it shall be done. In Schein, Inc. v. Archer and White Sales, Inc., 586 U.S. __ (January 8, 2019), the first opinion by Justice Kavanaugh, a unanimous Supreme Court reiterated this principle of the Federal Arbitration Act. Specifically, the Court confirmed that when an arbitration agreement delegates to an arbitrator the question of whether the agreement applies to a particular dispute, courts have no power to decide…
Background Data privacy law is rapidly developing; significant updates to data privacy and protection laws (now enacted in over 100 jurisdictions worldwide) are of increasing importance to class action litigation. Especially after the enactment of the EU General Data Protection Regulation (GDPR) and the Chinese Cybersecurity Law (and its supporting guidelines and regulations), there is a strong push for the enactment of stricter data protection laws in the United States. Practitioners must consider the implications of…
Procedural history
In August 2016, the US Judicial Conference’s Committee on Rules of Practice and Procedure (“Committee”) published proposed amendments to Federal Rule of Civil Procedure 23 governing class actions. The proposed amendments were available for public comment from August 12, 2016 through February 15, 2017. The Committee held several public hearings to discuss the proposed amendment in late 2016 and early 2017. The proposed changes were submitted to the Supreme Court on October 4, 2017. If the Supreme Court accepts the Committee’s proposal, the changes will become effective on December 1, 2018.
Proposed changes and practical implications
The proposed amendments are intended to modernize the notice process, to allow for notice to class members via electronic communications; impose affirmative obligations on a court to consider specific factors relevant to the fairness, reasonableness, and adequacy of a proposed settlement; to curb abuses from “bad faith” objectors; and clarify that certain orders granting “preliminary approval” of class certification may not be appealed.. Each is summarized briefly below.
UNITED STATES – On October 24, 2017, the Senate voted 51-50 to nullify a Consumer Financial Protection Bureau (CFPB) regulation that restricted banks and credit card companies from requiring customers to submit to mandatory arbitration in the event of a dispute. Vice President Mike Pence provided the tiebreaking vote. The Senate’s resolution now goes to President Trump, who is expected to sign the resolution into law.
The rule, which was introduced by the CFPB in July but had not yet taken effect, would have restricted financial institutions from including mandatory arbitration clauses in the fine print of its consumer contracts. This restriction on arbitration agreements would have enabled aggrieved consumers to bring class-action lawsuits against financial institutions with increased ease. Mandatory arbitration clauses are commonly utilized in many types of consumer contracts across the financial industry, including credit card agreements and private student loans. As a result of the Senate’s vote, financial institutions will face fewer class-action suits from its consumers.
UNITED STATES – A growing area of class action litigation is the Americans with Disabilities Act (“ADA”) website compliance, particularly for e-commerce sites. The ADA, 42 U.S.C. § 12101 et seq., provides that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or…
UNITED STATES – Online merchants often use click-wrap agreements to set the terms and conditions for the use of their sites, providing an “I Agree” button that a would-be user must first click before using the site or doing business with the merchant. When presented in an abbreviated or referenced fashion, using a link to the agreement or a scrolling window, these agreements allow companies to set fairly specific terms, including class action waivers and…