In the United States federal courts, class actions are governed by Federal Rule of Civil Procedure 23 (“Rule 23”). In April of this year, the Judicial Conference’s Advisory Committee on Civil Rules (“Advisory Committee”) unanimously voted to forward proposed amendments to Rule 23 to the Standing Committee on Rule of Practice and Procedure (“Standing Committee”) with a recommendation that the proposed amendments be published for public comment. After making some modifications, the Standing Committee approved…
Twenty six countries now authorize private civil damage actions for antitrust/competition law allegations. In several of these countries, claims may proceed as class or collective claims. Litigation strategy requires accounting for all claims, and coordinating them with regulatory investigations by government antitrust authorities. Consistency in approach, while dealing with the requirements of local laws, can be key to resolving antitrust matters for global companies. Our Global Guide to Competition Litigation (2016) helps to orient you…
California continued its ongoing debate on arbitrations and class actions this week when its Supreme Court held that in some cases an arbitrator, not the court, must decide whether an arbitration agreement permits class-wide arbitration. This case is important because it rejects a universal rule on who should be the decision-maker in favor of a case-by-case analysis. In Sandquist v. Lebo Automotive, Inc., No. S220812 (Cal. July 28, 2016), the California Supreme Court did not…
The trial court certifies a class. Discovery proceeds and the case goes to trial The jury returns a verdict for the plaintiff class. Can the defendant use post-trial motions to seek class decertification, effectively annulling the verdict? Yes, according to the Second Circuit. Indeed Fed. R.Civ. P. 23(c)(1)(C) specifically permits the court to alter or amend an order that grants or denies class certification at any time “before final judgment.” But as Mazzei v. The…
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 – 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 – The Consumer Financial Protection Bureau (CFPB) recently proposed a new rule for public comment that would prohibit providers of certain consumer financial products and services from using arbitration agreements with consumers as a means of blocking the consumer’s filing or participation in a class action. The proposed rule further requires such companies to report arbitration claims, awards, and related materials to the CFPB for possible publication. Some commentators have suggested that such a…
UNITED STATES – Given the increasing connectivity to the internet at home and at work, from smartphones and smart televisions to cloud solutions, resulting in vast amounts of personal information being collected, the risk of a data security incident (e.g., “data breach”) is real. In 2015, almost half of all companies reported experiencing a data security incident within the past 12 months. This current environment and a recent decision by the Seventh Circuit Court of Appeals,…
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 – Ever since the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) increased the cap on civil penalties from $1,825,000 to $15 million for related violations of the consumer product safety laws, the U.S. Consumer Product Safety Commission (“CPSC”) has steadily—and substantially—increased the amount of civil penalties it has sought from companies violating federal product safety regulations. CPSC Chairman Elliot Kaye has repeatedly called for much higher penalties against violating companies. But up…