Takeaway: We have posted a number of articles about whether Rule 23’s predominance requirement can be satisfied when a proposed class includes uninjured class members. See, e.g., D.C. Circuit denies class certification...more
Takeaway: Parties seeking to compel arbitration often rely on the rule announced by the U.S. Supreme Court in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983), providing that where an...more
Takeaway: Context matters in false advertising class actions. Factors such as how an allegedly false representation is displayed, where it is displayed, and what else is disclosed on the label or advertisement all can...more
Takeaway: One of the most effective tools for a business to reduce its exposure to class action litigation is to include compulsory arbitration provisions and class action waivers in customer-facing contracts. But there are...more
Takeaway: Class actions brought under federal RICO present significant risks for defendants. They present the opportunity for certification of a nationwide class under a federal statute, and the remedies provided under...more
Takeaway: As Judge Diane Wood of the Seventh Circuit recently observed in a putative class action alleging violations of Illinois’s Biometric Information Privacy Act (BIPA), “allegations matter” and “a plaintiff is the...more
Takeaway: In a prior article – Class action standing: Ninth Circuit holds members of a damages class must demonstrate Article III standing (March 31, 2020) – we discussed the Ninth Circuit’s decision in Ramirez v....more
Takeaway: In a prior article – Ninth Circuit: two pro-defendant decisions clarify burdens regarding CAFA’s $5 million jurisdictional threshold (September 14, 2020) – we examined two recent Ninth Circuit cases where the...more
Takeaway: Article III standing requires an injury-in-fact. To allege an injury-in-fact, a claimant must show “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not...more
Loose language in a criminal statute conferring a private cause of action – such as the Computer Fraud and Abuse Act (CFAA) – presents an interpretative dilemma for courts. The CFAA furthers the legitimate public interest in...more
Takeaway: In a prior post, we reported on a Central District of California decision granting an early motion to strike class allegations. Don’t miss the chance to strike out class actions (Feb. 27, 2019). But on appeal,...more
Takeaway: The concept of class arbitration has endured stiff headwinds. In Lamps Plus, Inc. v. Varella, 139 S. Ct. 1407 (2019), the Supreme Court ruled that a party cannot be required to participate in a class arbitration...more
Takeaway: The Circuits have split on the issue of whether a class representative must show the class is “ascertainable.” The Third Circuit has required a Rule 23(b)(3) class to be “currently and readily ascertainable.” ...more
Takeaway: We have recently written about the challenges involved in enforcing “browsewrap” contracts. See Internet terms of use: Ninth Circuit enforces arbitration agreement accessible through browsewrap hyperlink (August...more
Takeaway: Class defendants prefer federal court. In any putative class action filed in state court, the first issue to analyze is whether the case can be removed to federal court, and any such analysis typically involves...more
Takeaway: Technology advances. Business processes evolve. Internet transactions become increasingly ubiquitous. Contract formation, however, remains an old-fashioned concept. An Internet consumer must, at a minimum, be...more
Takeaway: Federal courts sitting in diversity are supposed to apply state law. There is a critical distinction, however, between substantive rights created by state law, on the one hand, and remedies (especially equitable...more
Takeaway: Class actions present significant risk, because a certified class exposes a class defendant to class-wide liability. Most defendants agree to settle rather than face the risk of a class verdict. But sometimes a...more
Takeaway: Class actions brought under federal RICO present significant risk, because they present the opportunity for certification of a nationwide class under a federal statute and the remedies provided under federal RICO –...more
Takeaway: We have written a number of articles about class arbitration. See, e.g., Fifth Circuit: arbitrator’s decision to conduct class arbitration cannot be vacated (May 11, 2020). A key issue is whether the parties’...more
Takeaway: When a company discovers it has been imposing improper charges, it might proactively seek to remedy the situation by refunding the charges. To avoid litigation, however, the company must consider including...more
Takeaway: Federal appellate courts review a district court’s rulings on motions for class certification and to exclude expert testimony for an abuse of discretion. The Ninth Circuit’s recent decision in Grodzitsky v....more
Takeaway: Class action litigation tends to be complicated, especially for trial courts resolving motions for class certification. These motions usually require courts to pour through dense briefing and evidentiary...more
Takeaway: A lot of ink has been spilled on the issue of class arbitration, but this much is clear: If a federal court decides the class arbitration issue, then the proponent of class arbitration should lose, unless the...more
Takeaway: In a data breach class action, the typical panoply of claims asserted include tort claims (such as negligence and negligence per se), contractual claims (such as claims for breach of express and implied contracts),...more