This blog has occasionally advised corporate counsel to review their company's arbitration agreements for scope and clarity. This is another such warning. Simply put, buttoned-up contracts containing arbitration provisions (including class action waivers) prevent class action exposure. But as Sixt Rent A Car just found out, less carefully drafted provisions result in class action litigation in court. And as Judge Newsom warned in a concurrence to his own opinion, ... Keep Reading »
Class Action Survey Post-Launch Highlights
The 2021 Carlton Fields Class Action Survey reveals a spike in class action spending, with U.S. companies spending a total of $2.9 billion in 2020 defending class action lawsuits. Spending is expected to rise more this year, amid a wave of pandemic disputes and data breach litigation. Along with a rise in costs, class action suits have become increasingly high-risk for organizations. Companies reported that of the class action suits they faced in 2020, 34.3% were ... Keep Reading »
Supreme Court: “Unharmed” Class Members Are Not Entitled to Damages; $40M TransUnion Judgment Reversed
On June 25, the U.S. Supreme Court issued its highly anticipated decision in TransUnion v. Ramirez, a case addressing Article III standing in the context of a class action. The Ninth Circuit Court of Appeals, in a split decision, had approved a $40 million award to a class of 8,185 individuals alleging violations of the Fair Credit Reporting Act, despite serious questions regarding whether a large percentage of class members had suffered any real injury. The class ... Keep Reading »
Eleventh Circuit Approves Largest, Most Comprehensive Data Breach Recovery in U.S. History
On June 3, 2021, the Eleventh Circuit Court of Appeals affirmed, with one caveat, the Northern District of Georgia’s approval of the settlement of the consolidated class actions against Equifax Inc. and its affiliates arising from the 2017 data privacy breach. The district court described the parties’ settlement as “the largest and most comprehensive recovery in a data breach case in U.S. history by several orders of magnitude.” Notably, the Federal Trade Commission, the ... Keep Reading »
MDL Court Denies Class Certification of Proposed “NAS Babies” Class
The opioid MDL court (the Northern District of Ohio) recently denied class certification to plaintiffs seeking class certification as guardians of individual children diagnosed at birth with neonatal abstinence syndrome (NAS). The court noted that these children are sometimes referred to colloquially as “NAS babies.” The primary basis for the court’s denial of class certification was its determination that the proposed class failed the test of ascertainability as ... Keep Reading »
What’s Good for Trial Is Good for Class Certification: Fifth Circuit Rules That Daubert Applies at Class Certification Stage
Class discovery is inherently more limited than normal fact discovery for trial, and litigators understandably approach it in a more narrow fashion than they would trial discovery. The Fifth Circuit recently reminded class action litigators, however, that such tailoring should not be extended to expert discovery. In Prantil v. Arkema Inc., the court joined the Second, Seventh, and Eleventh Circuits in ruling that the Daubert analysis governing the admission of expert ... Keep Reading »
One Game, One Stadium: Eleventh Circuit Spikes Collateral Challenge to Tampa Bay Buccaneers Proposed Class Action Settlement
The Eleventh Circuit recently imparted an important message to the class action bar, and in particular to attorneys representing different named plaintiffs in competing class actions: there is “only one gatekeeper under Rule 23,” so any challenge to a proposed class action settlement should be presented to the district judge deciding whether to approve that settlement, not to a different judge by way of a collateral attack on the proposed settlement. Several years ... Keep Reading »
Article III and Rule 23: Do We Stand Together or All on Our Own?
On December 16, 2020, the Supreme Court granted certiorari in TransUnion LLC v. Ramirez to review the Ninth Circuit’s decision in Ramirez v. TransUnion LLC. Specifically, the Supreme Court granted certiorari for the following question: Whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered. The Supreme Court’s certiorari ... Keep Reading »
A Class Action Settlement With a Chocolate Company Melts Away: Eleventh Circuit Issues En Banc Decision on Article III Standing Principles
On October 28, 2020, the Eleventh Circuit Court of Appeals issued a split (7-3) en banc decision applying Spokeo principles to a claim that a vendor issued a receipt that included more digits from the plaintiff’s credit card than allowed by federal law. The en banc court ruled that the plaintiff did not establish Article III standing. As I reported two years ago after the panel’s decision, the basic background is as follows. This class action lawsuit alleged ... Keep Reading »
Sixth Circuit Rejects a Novel Concept: Certification of “Negotiation Class” in Opioid Multidistrict Litigation
The Sixth Circuit recently addressed whether a novel negotiation class could be certified to facilitate possible future settlement negotiations in multidistrict litigation (MDL). The Sixth Circuit's decision arises from the opioid MDL in the Northern District of Ohio, on which we previously reported. In June 2019, 51 of the plaintiff cities and counties moved to certify a "negotiation class" under Federal Rule of Civil Procedure 23(b)(3). The plaintiffs sought to ... Keep Reading »
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