Florida’s Fifth District Court of Appeal (“Fifth DCA”) upheld a denial of certification in a putative class action seeking refunds of fines paid under a red light camera ordinance, ruling that the application of the voluntary payment defense precluded findings of commonality, typicality, predominance, and superiority. At issue was the City of Orlando’s (“City”) issuance of fines pursuant to an ordinance that allowed for the use of cameras to record vehicles failing to ... Keep Reading »
Must a Plaintiff Representing Unnamed Parties Under California’s Private Attorney General Act Comply with Rule 23’s Requirements?
Must a plaintiff who brings an action under California’s Private Attorney General Act (PAGA) comply with Rule 23’s requirements? Although the Ninth Circuit has not addressed the issue, one California federal district court recently weighed in, reiterating the California Supreme Court’s 2014 decision in Iskanian v. CLS Transp. Los Angeles, LLC that a PAGA action is different than a class action and more akin to a qui tam suit. Plaintiff, a Costco employee, filed suit ... Keep Reading »
District Court Denies Motion for Preliminary Approval of Class Action Settlement Citing Dearth of Information and Failure to Follow Court’s Settlement Guidelines
The District Court for the Northern District of California denied a motion for preliminary approval of a proposed settlement, citing the plaintiffs’ disregard of the court’s guidelines and various concerns as to whether the proposed settlement was “fair, reasonable, and adequate.” The matter involves claims stemming from allegedly defective touch screens and related software in Ford vehicles, and the proposed settlement provided for various forms of monetary relief and ... Keep Reading »
Put This in Your Pipe: Supreme Court Rules 9-0 That American Pipe Tolling Does Not Permit Filing of Serial Class Actions Beyond the Statute of Limitations
As we previously reported, last year the Ninth Circuit in Resh v. China Agritech, Inc., No. 15-55432, 2017 WL 2261024 (9th Cir. May 24, 2017), joined a circuit split when it held that the statute of limitations did not bar a third successive putative class action alleging securities fraud claims against a fertilizer manufacturer. The Ninth Circuit’s decision would have expanded the American Pipe equitable tolling rule to allow absent members of an uncertified class to ... Keep Reading »
Despite Second Shot at Ascertainability Post-Petrobras, Renewed Motion to Certify Falls Flat on Predominance Grounds
Royal Park, an investment company, recently suffered its second defeat in its attempt to certify a class action against Deutsche Bank regarding bond-like instruments collateralized by mortgages held in trusts entitling instrument-holders to the mortgages’ cash flow for various contractual and common law claims. The Southern District of New York denied Royal Park’s first motion to certify on the grounds the proposed class was insufficiently ascertainable, finding it was ... Keep Reading »
Supreme Court Upholds Use of Class Action Waivers in Employment Arbitration Agreements
In a significant decision awaited by U.S. employers since January 2017, the Supreme Court upheld the use of class action waivers in arbitration agreements. Justice Gorsuch wrote the majority opinion, which was joined by Justices Roberts, Kennedy, Thomas, and Alito. Justice Ginsburg filed an extensive dissenting opinion joined by Justices Breyer, Sotomayor, and Kagan. The decision answers a question that has loomed large for employers: Can they include class action ... Keep Reading »
Aw Schnucks! Seventh Circuit Dismisses Data Breach Class Action by Financial Institution Plaintiffs Under Economic Loss Doctrine
The Seventh Circuit recently upheld the dismissal of a novel putative class action filed by financial institutions against grocer Schnuck Markets (“Schnucks”) based on the economic loss doctrine. Schnucks suffered a data breach that exposed nearly 2.5 million credit and debit cards over four months until the intrusion was discovered. Instead of being filed by the usual data breach class action featuring a putative class of customers, this case was filed by financial ... Keep Reading »
Supreme Court to Determine Whether An Arbitration Clause Must Explicitly Authorize Class-wide Arbitration
The Supreme Court recently granted certiorari in Lamps Plus Inc. v. Varela, to determine “[w]hether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.” In other words, at issue is whether an arbitration clause must explicitly allow for class-wide arbitration, rather than solely on an individual basis, in order to find ... Keep Reading »
Will the Supreme Court Take a Charitable View of Cy Pres Settlements?
On April 30, the Supreme Court granted certiorari in Frank v. Gaos, No. 17-961 to review the fairness of the ever-increasing use of cy pres remedies in class action settlements. Cy pres remedies are often used to fund charitable or educational organizations when it would be infeasible to provide monetary relief directly to class members. In Frank v. Gaos, No. 15-15858 (9th Cir. 2017), the Ninth Circuit affirmed the district court’s approval of a cy pres-only ... Keep Reading »
Third Circuit Rejects ‘Shingle Lottery’ Theory of Common Defect in Putative Homeowner Class
The Third Circuit Court of Appeals recently affirmed a district court order denying certification to a group of homeowners in four states who alleged roof shingle manufacturer Owens Corning sold defective roof shingles and misrepresented their expected useful life. Specifically, plaintiffs alleged claims for breach of express warranty, breach of implied warranty of merchantability, and violation of various state consumer protection statutes because the shingles installed ... Keep Reading »
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