Takeaway: A consumer fraud class action must be grounded on allegations of false or deceptive statements of fact. Opinions, includes estimates clearly labeled as estimates, do not constitute statements of fact that can...more
Takeaway: In the wake of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), defendants in data breach class actions regularly move to dismiss on standing grounds, arguing the complaint’s allegations do not plausibly allege an...more
Takeaway: In two recent cases, the Second Circuit explored the plausibility of theories of deception in false labeling/consumer fraud cases. In one case, the appellate court ruled that a plausibly false labeling statement...more
Takeaway: On April 30, the U.S. Supreme Court granted certiorari in a Ninth Circuit case approving a cy pres-only class action settlement. As we reported in a May 2018 post [U.S. Supreme Court puts class action doubleheader...more
Takeaway: As we explored in a prior post (“Class arbitration – can it even work?”), conducting a class arbitration like most class actions – that is, giving absent class members notice and an opportunity to opt-out – may not...more
Takeaway: The issue of how to treat uninjured class members continues to vex the federal courts. This issue presents both substantive and procedural complexities. Substantively, a class must be defined in objective terms, so...more
Takeaway: When a plaintiff files a class action in state court, the first thing defense counsel will do is evaluate whether it can be removed to federal court. Most courts have long agreed that compensatory damages must be...more
Takeaway: Where a class settlement is reached, objectors may be lurking, oftentimes to extort personal payments. Earlier this year, the Seventh Circuit termed this practice “objector blackmail.” Judge Rakoff of the Southern...more
Takeaway: Creative legal theories are easier to allege than prove. And a putative class representative does not always make the best deponent, especially when it comes to substantiating the key allegations in an unfair and...more
Takeaway: There has been a proliferation of “slack-fill” class action litigation. These cases are premised on the notion that a large product container deceives a reasonable consumer, under the theory a reasonable consumer...more
Takeaway: RICO actions tend to be complex. RICO class actions add to the complexity, because class counsel must figure out a way to persuade a court that common issues predominate over individual ones. This is a challenge,...more
Takeaway: Data breaches are now a fact of life, whether for card-carrying consumers or commercial entities victimized by hacking or otherwise required to deal with the consequences. Class action litigation often ensues, where...more
Takeaway: The Ninth Circuit recently ruled that inadmissible evidence may be considered in ruling on a motion for class certification. But does inadmissible evidence really qualify as evidence? Notwithstanding the evidentiary...more
On April 30, the U.S. Supreme Court granted certiorari in two class action cases, on issues involving cy pres awards and class arbitration. Both cases arise out of the Ninth Circuit.
The Supreme Court’s decision in the cy...more
Takeaway: Data breaches are now a fact of life, whether for card-carrying consumers or commercial entities that are either victims of hacking or otherwise required to deal with the consequences. Class action litigation often...more
Takeaway: Alleging a “price premium” or “benefit of the bargain” damages theory is one thing. Proving it is another. A recent decision by Judge Lucy Koh of the Northern District of California shows the difficulty of...more
Takeaway: “Most courts to have considered the issue agree . . . that consumer plaintiffs cannot pursue injunctive relief if they are already aware of the alleged deceptive practice.” Ulrich v. Probalance, Inc., No. 16 C...more
Takeaway: While courts continue to grapple with efforts by class action defendants to “pick off” a named plaintiff by mooting his or her individual damages claim, class representatives pressing claims for injunctive and...more
Takeaway: The decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), where the U.S. Supreme Court evaluated Article III standing in the context of a federal statutory violation, continues to generate controversy. Since...more
Takeaway: Civil RICO claims usually present complex issues. As civil causes of action predicated on violations of criminal law, a RICO plaintiff must prove (1) conduct (2) of an enterprise (3) through a pattern (4) of...more
Takeaway: The Class Action Fairness Act (“CAFA”) was enacted to broaden federal diversity jurisdiction over class actions. While CAFA’s local controversy provision requires district courts to “decline to exercise [diversity]...more
Takeaway: To prevail on the predominance issue, an evidentiary showing is required. Defense counsel should prove – either through declaration or deposition testimony – that a particular defense (such as consent under the...more
On May 16, 2016, the United States Supreme Court issued its opinion in Spokeo v. Robins, No. 13-1339, which presented the question of whether a plaintiff has standing in federal court to assert a claim where the only...more
Contracts containing uniform terms and conditions are a common feature of modern commercial life. Consumers are oftentimes required to agree to such contracts in order to buy a good or service, and the contracts typically...more
“Picking-off” a named class representative is a class action defendant’s dream. Faced with a class action in which the named plaintiff seeks a small recovery on an individual basis but an enormous recovery on a class basis,...more