Certification Unhealthy: Ninth Circuit Vacates Order Certifying Class of Dietary Supplement Purchasers

The Ninth Circuit vacated a class certification order issued by the Central District of California, finding that common issues did not predominate because plaintiff had failed to demonstrate that the alleged misrepresentation that formed the basis of her suit had been made to all putative class members. Plaintiff alleged that defendant, Supple LLC, violated California’s Unfair Competition Law, California’s False Advertising Law, and California’s Consumer Legal Remedies ... Keep Reading »

A Message From the Eighth Circuit Regarding the TCPA

The purpose of a telephone solicitation, rather than its content, determines whether it is prohibited telemarketing under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq. That is what the Eighth Circuit determined in a case arising from unsolicited telephone calls with prerecorded messages initiated for the purpose of promoting the motion picture, Last Ounce of Courage. The Golan family, who were registered on federal and state "do not call" ... Keep Reading »

All About That Base: Claim Against Fat Loss Supplement Maker Fails For Lack of Ascertainability

Adam Karhu bought a dietary supplement called VPX Meltdown Fat Incinerator (“Meltdown”) in reliance on advertising by Vital Pharmaceuticals, Inc. (“VPX”) that Meltdown would result in fat loss. Concerned that Meltdown did not in fact result in loss of girth “in all the right places,”1 if at all, Karhu filed a class action suit in the Southern District of Florida alleging that Meltdown’s advertising was false. Karhu’s motion for class certification was denied because he ... Keep Reading »

Nevada Federal District Court Follows National Trend, Dismisses Data Breach Class Action for Lack of Standing

In granting a motion to dismiss a data breach putative class action lawsuit, the District of Nevada joined the majority of federal district courts in holding that plaintiffs whose personal information was stolen lack Article III standing to sue in federal court. The case derived from a 2012 breach of Zappos.com, Inc.’s servers in which hackers stole 24 million customers' personal information. Zappos moved to dismiss the case for lack of standing because, it alleged, ... Keep Reading »

Laid-Off Chicago Teachers Clear Class Certification Hurdles

In 2011, the Board of Education of the City of Chicago laid off over 1,400 teachers and paraprofessionals, all of whom belonged to the same union.  The Board chose which schools would be subject to layoffs and it was then up to the principals of those schools to recommend the positions to be cut, subject to the central office review.  In 2012, the union, as well as three laid-off African-American tenured teachers, commenced a lawsuit in the U.S. District Court for the ... Keep Reading »

Supreme Court to Consider “Trial by Formula” and Standing of Non-Injured Class Members in Tyson Foods

The Supreme Court recently granted Tyson Foods' petition for certiorari which presents to the Court two important class action issues: (1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to ... Keep Reading »

CAFA Local Controversy Exception Established Through Sampling and Statistics

An Illinois federal district court recently credited sampling data as evidence sufficient to establish the citizenship of putative class members for purposes of invoking the local controversy exception to CAFA jurisdiction. Plaintiffs filed a putative class action lawsuit in Illinois state court alleging that their property is being contaminated by silt particles released from defendants’ steel mill facility in Granite City, Illinois. They asserted common law claims ... Keep Reading »

No Certification Where Class Representatives Have Conflicting Interests

Seventy-eight of the over 4,000 Michigan childcare providers who received state subsidies for offering services  to low-income families voted to oppose having their union dues deducted from their subsidy payments. Six of the dissenting providers then filed a putative class action seeking equitable relief and monetary damages alleging that the dues deduction requirement in their collective bargaining agreement violated their First Amendment rights. The proposed class ... Keep Reading »

“Game Over”: Aliens vs. Consumer Class Action

Two video game enthusiasts brought a consumer class action suit against Sega of America, Inc. ("Sega") and Gearbox Software, LLC ("Gearbox") for their alleged disappointment in the quality of the video game "Aliens: Colonial Marines"("ACM").  ACM was marketed as "the canon sequel" to the film Aliens, the 1986 classic blockbuster in which Bill Paxton's character famously exclaimed "Game over, man, now what are we supposed to do?" after the dropship meant to rescue the ... Keep Reading »

Single Plant Employment Discrimination Class Survives Dukes Challenge

A divided panel of the Fourth Circuit ruled that a South Carolina district court judge improperly applied Wal-Mart Stores, Inc. v. Dukes in decertifying disparate treatment and disparate impact claims challenging promotion decisions under federal discrimination statutes on behalf of black employees at a single plant. In 2009, prior to Dukes, the Fourth Circuit had previously ordered the district court to certify both disparate treatment and impact promotion classes ... Keep Reading »