The federal Consumer Financial Protection Bureau (CFPB) issued what is being labeled a “brazen” rule[1] on Monday, July 10, 2017, prohibiting financial firms from using class action waivers to manage consumer complaints and disputes.[2]  As we have reported in previous client alerts and blog posts[3], the Supreme Court of the United States has previously upheld consumer arbitration clauses and class action waivers, resulting in a significant increase in the adoption of such clauses by consumer-facing…

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 – The Supreme Court of the United States issued a 6-2 opinion on Monday, May 16th, in Spokeo, Inc. v. Robins vacating the Ninth Circuit’s prior ruling and remanding the case for further analysis. This was a highly anticipated decision that many practitioners believed could change the landscape for class actions on the question of whether a statutory violation alone, without a resulting injury to the plaintiff, is sufficient to confer standing on a…

UNITED STATES – Any company that makes sales through the Internet to New Jersey consumers should be aware of a recent trend in consumer class actions based on New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (the “TCCWNA”), N.J.S.A. 56:12-14, et seq. The plaintiff’s bar is attracted to the TCCWNA as a basis for consumer class actions because, like many other statutes underlying consumer class actions [1], it provides for statutory damages and attorneys’ fees…

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 – 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…