For many hundreds of years since old English common law, a public nuisance cause of action allowed the government to stop, quite literally, a public nuisance that threatened the welfare of a community. The most common public nuisance cause of action involved real property—for example, pollution of the air, water, or land. But public nuisance causes of action also have involved other threats to the welfare of a community, such as storing fireworks or explosives,…

It appears that courts have found a way to try to keep class actions alive even where traditional damages claims do not satisfy the stringent standard for class certification. Specifically, recent California federal court decisions in class action litigation reflect a seeming willingness to certify classes for purposes of injunctive relief when damages claims do not qualify for class treatment. While it used to be that a defendant could escape financial exposure by showing that…

Once a darling of the class action plaintiffs’ bar, food labeling class actions are becoming tough nuts to crack for plaintiffs in US District Courts. Recent decisions demonstrate a progressive unwillingness on the part of federal courts to accept arguments that consumers can be misled by food products’ labels where the ingredient list on packaging expressly discloses information to the consumer about what is in the product. The courts are also more and more unwilling…

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…

UNITED STATES – In a groundbreaking decision handed down on January 25, 2019, the Illinois Supreme Court unanimously held that private entities cannot collect biometric data from consumers without their consent, pursuant to the Illinois Biometric Information Privacy Act (740 ILCS 14/1 et seq.) (“BIPA”). Crucially, the Court held that individuals have standing to bring a claim under BIPA even without a showing of actual harm. Plaintiff Stacy Rosenbach filed suit against Six Flags amusement…

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…

Introduction On September 6, 2018, the Ninth Circuit Court of Appeals in California breathed fresh life into a case brought by a putative class of retired professional football players (“players”) against the National Football League (“NFL”). See Dent v. NFL, No. 15-15143, 2018 U.S. App. LEXIS 25302 (9th Cir. Sep. 6, 2018) (“Dent”). The players assert that the NFL directly provided medical care and supplied powerful prescription drugs to players, in violation of federal and…

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…

The US Supreme Court issued a highly anticipated decision on May 21, 2018 in Epic Systems Corp. v. Lewis, holding that class action waivers in arbitration agreements are fully enforceable, notwithstanding the right to engage in concerted activity under the National Labor Relations Act (NLRA). With a 5-4 opinion authored by Justice Neil Gorsuch, an ideologically divided Supreme Court resolved a circuit court split in favor of class and collective action waivers, allowing employers to require workers to arbitrate claims on an individual rather than group basis. Although employers now have a tool to effectively eliminate most employment class actions through the use of arbitration agreements, several other important nuances remain to be considered before rolling out an arbitration program. But the Supreme Court’s decision is nevertheless a clear win for employers seeking to avoid the expense and disruption of class litigation. And the Court’s broad opinion lends support to the enforcement of employment arbitration agreements in other contexts, notwithstanding state laws that might otherwise impede arbitration.