The Eleventh Circuit Court of Appeal found that an arbitration agreement entered into by a putative class representative and his eventual employer was enforceable even though the agreement was signed after the plaintiff filed his class action suit. The court found that the arbitration agreement included a valid delegation provision that evidenced the parties' intent to arbitrate all gateway issues of arbitrability. Accordingly, the court vacated the district court's ... Keep Reading »
No Pick-Off, No Problem: How a Pre-Certification Rule 68 Offer Survived (Twice)
A magistrate judge in the United States District Court for the Western District of Pennsylvania denied plaintiff’s motion to strike a Rule 68 offer of judgment served prior to class certification. The Rule 68 offer in this case – unlike those at issue in numerous conflicting opinions culminating in the United States Supreme Court’s 2016 Campbell-Ewald decision – was not an attempt to “pick off” the named plaintiff because it also included the putative class members. ... Keep Reading »
Adequacy is Adequate: DC District Court Certifies Pacer Fee Class
The United States District Court for the District of Columbia certified a class of all individuals and entities who paid fees to obtain court records though the Public Access to Court Electronic Records (PACER) system. The proposed class representatives, three nonprofit legal advocacy organizations, overcame the government’s primary challenge to class certification, which was that they were not adequate class representatives. The National Veterans Legal Services ... Keep Reading »
District Courts Find Impermissible “Fail-Safe” Class Definitions But Deny Motions to Strike Class Allegations
Two recent decisions from the Eastern District of Illinois involving the Telephone Consumer Protection Act (TCPA), decided a day apart, provided valuable insight as how this court will respond to motions to strike class allegations that include impermissible “fail-safe” class definitions. Although both courts found that plaintiffs proposed fail-safe classes, the courts denied defendants’ respective motions to strike class allegations and provided plaintiffs leave to ... Keep Reading »
Seventh Circuit Strikes Again – Rejects Settlement In Shareholder Deal Litigation
In yet another strongly-worded opinion, the Seventh Circuit rejected the proposed settlement of a Walgreens’ shareholder strike suit in which the class obtained “worthless” supplemental disclosures but class counsel received generous fees. Judge Posner authored the opinion, as he did in Person v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014) and Eubank v. Pella Corp, 753 F.3d 718 (7th Cir. 2014). He described the practice of settling “deal litigation” like this that yields ... Keep Reading »
“Placeholder” Motions to Certify are Unnecessary after Campbell-Ewald According to South Carolina District Court
Relying on the Supreme Court’s 2016 opinion in Campbell-Ewald, the United States District Court for the District of South Carolina ruled that a class action plaintiff need not file a “placeholder” motion to certify to avoid a defendant’s attempt to “pick-off” the plaintiff and moot the class with a Rule 68 Offer of Judgment (OJ). Plaintiff filed its putative class action complaint alleging violations of the Telephone Consumer Practices Act and immediately sought ... Keep Reading »
Smooth Operators: Seventh Circuit Untangles Objections and Affirms Settlement of Hair Product Class
The Seventh Circuit Court of Appeals affirmed a class settlement over objection in a case involving a hair-smoothing product (“the Smoothing Kit”) that allegedly destroyed users’ hair and burned their scalps. Plaintiffs sued Unilever United States, Inc. (“Unilever”) in the Northern District of Illinois. Related actions in Kentucky and California were transferred to the Northern District of Illinois. The settlement class consisted of “all persons who purchased or used ... Keep Reading »
California Court Gives Ford SUV Tailgate Class the Boot
Plaintiffs from California, New Jersey, and Florida claimed their 2002-2005 Ford Explorers, Mercury Mountaineers, and Lincoln Aviators suffered from a common design defect: the plastic appliqué just below the flip-glass on the rear tailgate had a tendency to crack and allow water to corrode the metal parts that hold the flip-gate in place. As a result, plaintiffs asserted the flip-glass would spontaneously shatter or fall-off, resulting in a safety hazard and diminution ... Keep Reading »
Third Circuit Reverses Denial of Class Certification in Complete Sham Telemarketing RICO Case
The United States Court of Appeals for the Third Circuit reversed the denial of class certification in a case brought against a bank and its payment processors that allegedly engaged in a fraudulent scheme to cause unauthorized debits from consumer bank accounts. Reynaldo Reyes, as class representative, filed suit in the Eastern District of Pennsylvania under the Racketeer Influenced and Corrupt Organizations Act (RICO) against Zions First National Bank (“Zions Bank”) ... Keep Reading »
Rice Capades: Court Certifies a Class of Lead Lawyers Against Defendant Law Firms Who Allegedly Used the Class’s Work Product in Rice Litigation
The Eastern District of Missouri certified an unusual class of lawyers and their clients who undertook a collective effort to litigate claims against Bayer related to the purported “contamination” of the U.S. rice supply by Bayer’s genetically modified rice. The defendants are law firms that allegedly benefitted from the work performed by the class in state and federal cases against Bayer. Bayer’s introduction of genetically modified rice into the U.S. domestic rice ... Keep Reading »