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…
UNITED STATES – The United States Supreme Court has agreed to review a decision of the Eighth Circuit that upheld a $5.8 million judgment in favor of a class consisting of Tyson Foods employees who alleged Tyson underpaid them for time spent putting on and taking off protective equipment necessary for their jobs. Among other issues raised, Tyson challenged plaintiffs’ use of statistical evidence to establish liability and damages. Relying on the Supreme Court’s rejection…
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…
UNITED STATES – The United States Supreme Court recently granted certiorari in Campbell-Ewald v. Gomez, and one of the questions certified on appeal, if decided, will resolve a circuit split on the question of whether a defendant’s early settlement offer of complete relief moots a representative plaintiff’s individual claim by destroying standing to sue. The Court is also set to address the related issue of whether a settlement offer of complete relief before class certification…
UNITED STATES – The Multistate Antitrust Task Force of the National Association of Attorney Generals (“NAAG”), the non-political organization of US state attorneys general that coordinates joint multistate and federal-state investigations and litigation, has created a new committee to examine class action settlements reported to the states under the Class Action Fairness Act, and specifically to examine whether companies may be using class action settlements to avoid antitrust enforcement actions that might otherwise be brought…
UNITED STATES – 2015 marks the 30th anniversary of the U.S. Supreme Court case that impacted the way courts determine class certification claims by indirect purchasers under state antitrust laws. Under Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), the U.S. Constitution’s Due Process Clause and Full Faith and Credit Clause require that state law cannot be automatically applied to each claim brought by a class comprised of multistate members. In most cases, this…
UNITED STATES – Cybersecurity is now headline news across the globe, with data breaches hitting nearly every industry—from retail, to healthcare, to banking. Amid growing concerns about U.S. interests, President Obama has waded into the cybersecurity waters with a recent Executive Order. This Order moves the needle in the right direction, but does it do anything to ease the rising tide of class action litigation? The short answer is “no.” The President’s Order and accompanying…