CANADA – Privacy and data breach class actions are on the rise in many jurisdictions that allow class action litigation, and Canada is no exception. Ontario’s highest appellate court recently ruled on a case involving 280 patients’ records that were improperly accessed and disclosed at an Ontario hospital. The Court affirmed a lower court decision that the representative plaintiff could seek certification of a class action based on the tort of intrusion upon seclusion. This tort…
UNITED STATES – Big business was dealt a blow this past July when the FCC issued a new Declaratory Ruling that significantly strengthens the Telephone Consumer Protection Act (TCPA). The TCPA is probably best known for spurring the FCC in 2003 to implement a National Do Not Call Registry (Registry) that generally prohibits telemarketers from placing solicitation calls to consumers who have added their names to the Registry. The FCC has since issued in 2012…
UNITED STATES – Consumer class actions are often brought in the federal courts sitting in California, and in other states, based on alleged false advertising in violation of one or more California consumer protection statutes, including the Consumers Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.), the Unfair Competition Law (Cal. Bus. & Prof. Code §17200) and the False Advertising Law (Cal. Bus. & Prof. Code §§ 17500, et seq.). The defendants in…
In the United States, deceptive pricing class actions are currently en vogue. Generally, plaintiffs in these cases claim that they were deceived into purchasing a product by a misleading comparison price that signals a misleading value. These prices are often labelled “compare at,” “manufacturer’s suggested retail price,” or something similar. The most common targets of these lawsuits have been outlet stores, but the trend could expand to any retailer (or manufacturer) who communicates a price…
CANADA – A recent Ontario court decision has underlined the high threshold to be met for parties seeking leave to pursue secondary market securities class actions. In Coffin v. Atlantic Power Corp. (“Coffin”), Justice Belobaba of the Ontario Superior Court of Justice denied certification of a proposed secondary market securities class action, holding that the claim lacked a reasonable possibility of success and reinforcing the high bar in place to dispense with unmeritorious claims. An action…
In Ewing Indus. Corp. v. Bob Wines Nursery, Inc., a decision issued on August 3, 2015, an Eleventh Circuit panel held that a purported class action does not toll the statute of limitations for a later class action seeking to represent the same class when the original purported class action was dismissed due to the inadequacy of a class representative, regardless of whether the determination of inadequacy occurs before or as part of a decision…
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 July 10, 2015, the Eleventh Circuit Court of Appeals issued a ruling that could cause state legislatures to think twice before seeking to limit the class action rights of consumer plaintiffs. In Lisk v. Lumber One Wood Preserving LLC, No. 14-11714, 2015 U.S. App. LEXIS 11891 (11th Cir. July 10, 2015), the Eleventh Circuit held that Federal Rule of Civil Procedure 23 (“Rule 23”) can permit product liability plaintiffs to bring…