Within 10 days after the district court decertified a Rule 23(b)(3) aphrodisiac dietary supplement class for failure to show a class wide method for calculating damages, plaintiff orally advised the court of his intention to seek reconsideration. The district court then set a 10-day deadline for filing a motion for reconsideration — in other words, 20 days after the decertification order. Plaintiff complied with the court’s schedule. The district court denied the motion ... Keep Reading »
Circuit Court Finds Putative Class Affidavits, Combined With Other Records, May Satisfy Ascertainability Requirement
Defendants BMW and Creditsmarts were parties to a marketing agreement through which BMW offered its direct automotive “up2drive” loans to borrowers at participating independent car dealers through Creditsmarts’ internet-based business-to-business lending platform. Creditsmarts used a third party, Westfax, to fax over 20,000 advertisements to independent car dealers during a 30-day period. Plaintiff City Select Auto Sales received one of these faxes and brought a putative ... Keep Reading »
Still Standing: Ninth Circuit Again Finds Standing in Spokeo Remand
The Ninth Circuit recently issued its latest opinion in Spokeo, Inc. v. Robins, the closely-watched putative class action dating back to 2010. The plaintiff initiated the lawsuit against Spokeo, which aggregates publicly available data about individuals on its website, alleging the company published inaccurate information about him, including his age, wealth, marital status, educational history, and profession. He claimed that this conduct violated the Fair Credit ... Keep Reading »
Kansas Judge Rejects Discovery From Putative Class Members
A magistrate judge in Kansas denied the defendant’s request to conduct discovery of putative class members via a voluntary questionnaire. Plaintiff Hapka filed a class action against home health care provider CareCentrix stemming from a 2016 data breach of employees’ personal information, including wage and tax statements. Plaintiff alleged a fraudulent tax return was filed in her name following the cyberattack and that she continued to be at a heightened risk for tax ... Keep Reading »
Individualized Inquiries and Difficulties Identifying Class Members Doom Title Insurance Reissue Rate Class Action
The District Court of Idaho recently decertified a title insurance reissue rate class action, finding the initial justifications for class certification have “not withstood the test of time.” Under the Idaho Rate Manual, customers are entitled to a 50 percent discount when a title policy is issued within two years of a previous policy on the same property by the same owner. Seven years ago, the court granted class certification for a class of Idaho residential customers ... Keep Reading »
Objectively Non-Flushable? The Northern District of California Certifies Consumer Class Regarding Charmin Freshmates
Using the familiar “reasonable consumer standard” that applies in many jurisdictions regarding allegedly deceptive sales practices, a judge of the Northern District of California recently certified a class action of California consumers who purchased Charmin/Proctor & Gamble’s “Freshmates” brand of “flushable” bathroom wet-wipes between April 6, 2011, and August 3, 2017. The class claims centered on the allegation that Freshmates were not “flushable” as advertised ... Keep Reading »
Eighth Circuit Reverses Sanctions on Lawyers that Settled Federal Court Class Action in State Court
Last year at this time, we posted about two recent orders from a federal judge in Arkansas that found Rule 11 violations and abuses of the judicial process by attorneys for both the plaintiffs and the defense. Specifically, the district court found that counsel for both plaintiffs and defendants violated Rule 11 when they stipulated to dismissal of a yet-uncertified class action “for the improper purpose of seeking a more favorable forum and avoiding an adverse ... Keep Reading »
Third Circuit Follows ANZ Securities Decision and Reverses for Dismissal of Exchange Act Claims as Untimely
On June 28, 2017, Bruce Berman and Steve Blickensderfer posted in this space about the Supreme Court’s recent decision in California Public Employees Retirement System v. ANZ Securities, Inc., 137 S. Ct. 2042 (2017). In that case, the Supreme Court held that American Pipe tolling does not apply to the federal securities laws' statutes of repose. On Aug. 2, 2017, the Third Circuit decided an appeal in which the same issue was implicated. Naturally, it followed the ANZ ... Keep Reading »
Eleventh Circuit Doesn’t Waffle on Enforceability of Arbitration Agreement
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 »
Fifth Circuit Vacates Settlement Approval in ERISA Class Action, Remanding With Instructions to Reexamine the Legitimacy of Promised Future Payments
The Fifth Circuit recently vacated a class action settlement that included unsecured and uncollateralized future payments to the plaintiffs, while providing a swift and complete payout of fees to class counsel. The case concerned a defined benefits pension fund created and owned by the Singing River Health System (SRHS), a community hospital owned by Jackson County, Mississippi. Following the 2008 financial crisis, SRHS encountered financial difficulties, failed to make ... Keep Reading »
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