Consumer-facing corporations had been hopeful over the past two years that a ruling from the United States Supreme Court, in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), would deter and diminish the prevalence of consumer class actions in the U.S. But, when the Supreme Court issued its decision in May 2016, attorneys representing both plaintiffs and defendants claimed victory, foreshadowing the competing interpretations that lower courts would subsequently have for the decision.

The Supreme Court opined in Spokeo that a consumer did not have the right (or “standing”) to bring a class action by alleging only a bare procedural violation of a statute divorced from any concrete harm. The defendants’ class action bar believed the Spokeo decision would curtail all class actions premised on bare claims of technical violations of consumer protection statutes causing no harm. However, instead of curbing such cases, the decision resulted in a split among the federal courts as to the meaning of “concrete harm.” Thus, the decision spawned an increase in litigation by affording both sides the ability to frame the decision in their favor, with the outcome dependent upon a court’s unpredictable interpretation.

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…

UNITED STATES – On July 28, 2015, the Seventh Circuit Court of Appeals issued its decision in Mullins v. Direct Digital, LLC, on the question of whether Rule 23(b)(3) imposes a heightened “ascertainability” requirement for class definition. Recent Third Circuit precedent — followed by some district courts within the Seventh Circuit — have held that plaintiffs must prove at the class certification stage that there exists a “reliable and administratively feasible way” to identify all…

UNITED STATES – The Supreme Court of California’s August 3, 2015 decision in Sanchez v. Valencia Holding Company, LLC clarifies the extent to which the United States Supreme Court’s Concepcion decision pre-empts California’s unconscionability rule in the context of agreements to arbitrate. In doing so, the California Supreme Court clarified that Concepcion permits the unconscionability rule to be applied to challenge the enforceability of an arbitration clause; the various formulations for unconscionability in California are…

UNITED STATES – As our colleague Michael McCutcheon wrote in his blog post of May 29, 2015, the Supreme Court of the United States has agreed, in the case of Campbell-Ewald v. Gomez, to review the issue of whether a defendant’s early settlement offer of complete relief moots a representative individual plaintiff’s claim by destroying standing to sue. This practice has proven to be effective in some courts in obtaining dismissals of putative class actions at an…

UNITED STATES – On April 27, 2015, a Ninth Circuit Panel clarified the meaning of the Class Action Fairness Act’s (“CAFA”) “local single event exception” to federal jurisdiction, creating an arguable split in the Circuit Courts and giving U.S. class action parties more certainty in whether their cases may be removed from state to federal court. Allen v. Boeing Co., No. 15-35162 (9th Cir. April 27, 2015). In doing so, the Ninth Circuit Panel declined to…

UNITED STATES – Ascertainability of the class membership at the certification stage is a growing issue in U.S. class action litigation. A class definition satisfies Rule 23’s implied ascertainability requirement if the class is defined by objective factors and it is administratively feasible to determine whether a particular individual belongs to the class. Although this factor is not explicitly required by the terms of Rule 23 for certification of a class, it is increasingly becoming…