The Ninth Circuit has issued its much-anticipated decision in a class action against Facebook involving alleged biometric privacy violations, affirming certification of a class. In Patel v. Facebook, the Northern District of California certified a class of Facebook users residing in Illinois who alleged that the social media giant violated the Illinois Biometric Information Privacy Act (BIPA) by using facial-recognition technology "without obtaining a written release and ... Keep Reading »
Hearsay What? EDNY Finds That Class Certification Evidence Must Be Admissible
Lin v. Everyday Beauty is an Eastern District of New York decision addressing an issue that has divided district courts in the Second Circuit and elsewhere: Whether a federal court may consider inadmissible evidence when deciding a class certification motion. This district court found that it could not do so. The plaintiffs, former retail sales employees of the defendants, moved to certify a class of essentially everyone employed by the defendants, beauty supply ... Keep Reading »
Fifth Circuit Bars Notice of FLSA Collective Actions to Arbitration-Bound Employees
The Fifth Circuit recently became the first federal court of appeals to hold that employees who signed arbitration agreements should not receive notice of collective actions. This case of first impression among the courts of appeal could serve as a powerful tool for employers combatting collective actions under the Fair Labor Standards Act (FLSA). Accordingly, we think the decision is deserving of more detailed analysis than a mere summary. A Splintered Approach In ... Keep Reading »
Equal Pay and Class Action Implications
After winning the World Cup on Sunday with a thrilling 2-0 victory over the Netherlands, the U.S. women’s national soccer team laid claim to being the best women’s soccer team in history. They celebrated their victory at the trophy presentation to the deafening sounds of stadium chants. Not “USA, USA,” but “Equal pay, Equal pay.” The U.S. players had already sued their national federation, the U.S. Soccer Federation, for a pay increase, asserting that the men’s team ... Keep Reading »
Objectors to Class Settlement Concerning Alleged Misrepresentations of Fuel Efficiency Run out of Gas in Ninth Circuit by Waiving Arguments
The Ninth Circuit recently addressed the propriety of applying California law to a nationwide settlement class. The Central District of California had hosted a consolidated multidistrict litigation of individuals who bought Hyundai and Kia automobiles and claimed to have been misled by the companies' allegedly inaccurate fuel efficiency estimates. The trial court originally denied certification of a litigation class, citing "material differences" in state law. ... Keep Reading »
Supreme Court Declines to Remove Loophole in CAFA
On May 28, 2019, Justice Clarence Thomas — joined by unlikely allies Justices Ginsburg, Breyer, Sotomayor, and Kagan — wrote the 5-4 majority opinion holding that third-party counterclaim defendants in class actions do not have the authority to remove claims to federal court under either the general removal statute, 28 U.S.C. § 1441(a), or § 1453(b) of the Class Action Fairness Act (CAFA). In this pro-consumer ruling, Justice Thomas declined to close an emerging ... Keep Reading »
Florida Supreme Court Refuses to Approve Amendment to Class Action Rule to Encourage Cy Pres Distribution of Residual Settlement Funds
Cy pres distribution of residual settlement funds has come under increased scrutiny in recent years. Perhaps for this reason, the Florida Supreme Court on May 16, 2019, refused to approve an amendment to Florida Rule of Civil Procedure 1.220, the state class action rule, that would have encouraged settling parties to distribute residual funds to The Florida Bar Foundation or another nonprofit legal services organization. The court, however, declined to provide any ... Keep Reading »
Third Circuit Finds Class Members’ Cash Advance Agreements May Fall Short of a True Assignment
On April 26, 2019, the Third Circuit Court of Appeals reversed in part and affirmed in part a district court order purporting to void cash advance agreements entered into by and between class members and litigation funding companies in In re National Football League Players' Concussion Injury Litigation. Following settlement of the underlying litigation, hundreds of class members entered into cash advance agreements with various litigation funding companies, including ... Keep Reading »
A Unicorn Sighting? Fourth Circuit Affirms Certification of Defendant Class
Bell v. Brockett is an unusual case in several respects. Most notably, the Fourth Circuit affirmed certification of a defendant class, despite acknowledging that defendant class actions are "so rare they have been compared to unicorns." The court not only acknowledged the rarity of defendant class actions but also commented on their "inherent risks." Indeed, in a delightful footnote the court explained that although both unicorns and defendant class actions are rare, the ... Keep Reading »
Opt-Out Arbitration Program Binds Employees in Wage and Hour Class Action
A recent decision by a Wisconsin district court illustrates the impact of an arbitration agreement on class actions. The plaintiffs alleged violations of the Fair Labor Standards Act (FLSA) and state wage and overtime laws, claiming that employees were not compensated for 15 minutes of activity at the start of every workday and that actual pay was understated for purposes of calculating overtime. The defendants moved to compel arbitration on an individual basis. The ... Keep Reading »
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