UNITED STATES – In Tyson Foods v. Bouaphakeo, regarding alleged uncompensated time spent by a class of employees donning and doffing hard hats, work boots, gloves, and earplugs, the plaintiff workers supported their claim by submitting averages and other statistical analysis to show similarities between disparate class members. The statistics were achieved through 744 observations of employees conducting such off-the-clock activities to average the length of time spent. The average time was then added to…
UNITED STATES – In Campbell-Ewald Co. v. Gomez, the Supreme Court refused to allow class-action defendants to escape liability through an unaccepted offer of full payment of the named plaintiff’s claims. This resolved a deep circuit split on the issue. The Court concluded that “basic principles of contract law” established that once the offer was rejected, the offer could not moot the claim. Interestingly, the Court expressly refused to decide whether a defendant could escape…
CANADA – In an earlier post we discussed the implications of the Ontario Superior Court decision of Coffin v. Atlantic Power Corp. (“Coffin”) on secondary market securities class actions. We observed that the decision reiterated a higher threshold for secondary market misrepresentation class actions under the Ontario Securities Act (“OSA”), stating that the test for leave under the OSA was intended to be a “robust deterrent screening mechanism” to help “weed out hopeless claims”. Coffin was…
UNITED STATES – The Supreme Court has once again spoken decisively in favor of class action waivers in arbitration agreements. In DirecTV, Inc. v. Imburgia, the Court explained in no uncertain terms that “[t]he Federal Arbitration Act is a law of the United States, and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it.” The Court thus reversed a decision of the California Court of Appeal that…
UNITED STATES – On November 2, 2015, the Supreme Court heard oral argument on an issue that is likely to have a significant impact on the future of consumer class action litigation. The issue before the Court was 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 based on…
UNITED STATES – The Consumer Financial Protection Bureau (“CFPB”) recently announced that it intends to limit the scope of mandatory arbitration clauses contained in consumers’ agreements with credit card companies and other consumer financial institutions. To this point, credit card companies have been able to obstruct efforts by aggrieved consumers to bring class actions by invoking mandatory arbitration provisions in their contracts, known as “free pass” clauses. Under those provisions, aggrieved consumers must redress their…
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…