Takeaway: When a district court certifies a damages class action, it often cites the long line of cases holding that, because damages for each class member can be determined after a class action trial on liability,...more
Takeaway: Adhesion contracts have become ubiquitous in modern internet commerce, and we have written a number of articles about how businesses prepare their on-line contracts to shield themselves from liability generally and...more
In a recent post, we reported on the Second Circuit’s affirmance of a district court order dismissing a false advertising class action based on alleged misrepresentations that amounted to nothing more than puffery. See...more
Takeaway: Last year, we reported on a Seventh Circuit decision endorsing a “no injury” pleading strategy for violations of Illinois’s Biometric Information Privacy Act (BIPA). The strategy, calculated to prevent the removal...more
Takeaway: The individual claims asserted by a class representative – as well as the defenses that apply to those claims – form the foundation of any effort to certify a class under Rule 23. If the claims of the class...more
We have written a number of articles about California’s restrictions on arbitration agreements, including California’s “McGill rule,” which provides that arbitration agreements cannot waive claims for “public injunctive...more
Takeaway: When litigating class certification and motions to compel arbitration, defense attorneys virtually always prefer federal over state courts. In two cases involving home security provider ADT, L.L.C. (ADT), and a...more
Takeaway: Class actions brought under federal RICO present significant risks for defendants. They present the opportunity for certification of nationwide or multi-state classes under a federal statute, and the remedies...more
Takeaway: The quickest, most efficient way to kill a putative class action remains a successful Rule 12 motion to dismiss. But in ruling on such a motion, a district court generally cannot stray beyond the allegations in...more
Takeaway: Antiquated laws can give rise to creative class actions. In the nineteenth century, the Florida Legislature criminalized the use of a food ingredient ultimately declared safe for consumption by the Food and Drug...more
Takeaway: Consumer class actions primarily target a damages remedy. In the antitrust context, state antitrust law provides the path to damages for indirect purchasers, because federal antitrust law bars indirect purchaser...more
Takeaway: Federal Rule 23(c)(4) provides: “When appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Although class plaintiffs often seek “issue certification” as an...more
Takeaway: In theory, class litigation should be fair. Class members should not be permitted to see how a case will play out at trial before deciding whether to opt out of a damages class – a practice known as “one-way...more
Takeaway: Although a district court deciding a Rule 12 motion to dismiss must draw every inference in favor of a plaintiff, courts know puffery when they see it. In George v. Starbucks Corp., --- Fed. Appx. ----, No....more
Takeaway: One would think that “public injunctive relief” – especially under California law – would be a broad remedy. Not so, according to the majority opinion in Hodges v. Comcast Cable Communications, LLC, --- F.4th...more
Takeaway: The importance of preserving issues for appeal when litigating a case before a trial court – from the outset of the case all the way through post-trial motions – cannot be overstated. As a general matter, a...more
Takeaway: Counsel for companies that suffer a data breach often hire an outside cybersecurity firm to remediate the breach and assist counsel in preparing for and defending against litigation. These companies typically take...more
Takeway: Class action litigation implicates jurisdictional issues in a number of ways. Class action defendants generally prefer federal over state courts and – when presented with the opportunity – will seek to remove...more
Takeaway: To survive summary judgment, a false-advertising plaintiff must offer evidence that the challenged representations are likely to mislead a reasonable consumer. In Weaver v. Champion Petfoods USA Inc., --- F.4th...more
Takeaway: As we reported in a recent article – New Class Action Trend: Website Session Replay Tools Alleged to Violate All-Party Consent Recording Requirements (April 5, 2021) – creative class action lawyers have filed a...more
Takeaway: In TransUnion LLC v. Ramirez, --- S. Ct. ----, No. 20-297, 2021 WL 2599472 (June 25, 2021), the Supreme Court granted certiorari to resolve the question of “[w]hether either Article III or Rule 23 permits a damages...more
7/1/2021
/ Article III ,
Class Action ,
Class Members ,
Credit Reporting Agencies ,
Credit Reports ,
Fair Credit Reporting Act (FCRA) ,
Injury-in-Fact ,
SCOTUS ,
Standing ,
TransUnion ,
TransUnion LLC v Ramirez
Takeaway: When the Judicial Panel on Multidistrict Litigation (JPML) consolidates cases and transfers them to a single, multidistrict litigation (MDL) court, the process is in a very important respect coercive. Counsel for...more
Takeaway: Since the U.S. Supreme Court addressed the issue of standing based on allegations of possible future injury in Clapper v. Amnesty International USA, 568 U.S. 398 (2013), the courts of appeals have addressed this...more
Takeaway: Parties seeking to compel arbitration often rely on the rule that where an arbitration agreement contains broad language, any ambiguity about whether a claim must be arbitrated should be resolved in favor of...more
Takeaway: Judge Timothy Corrigan of the Middle District of Florida recently found a way to certify a class action where consumers alleged the theft of payment card data, acknowledging he “may be the first to certify a Rule...more