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Archives for June 2014

California District Court Denies Certification of Putative Class of Plaintiffs Alleging Violations of the Video Privacy Protection Act

by Carlton Fields

The U.S. District court for the Northern District of California denied plaintiffs’ motion for class certification because the proposed class did not satisfy Rule 23’s ascertainability and predominance requirements.  Plaintiffs’ class action complaint alleged that Hulu violated the Video Privacy Protection Act by disclosing video selections and “personally identifiable information” to third parties such as Facebook.  At the class certification hearing, the plaintiffs ... Keep Reading »

Basic Survives, But Defendants Must Have Opportunity To Show Lack Of Price Impact To Rebut “Fraud-On-The-Market” Presumption Of Reliance Prior To Class Certification

by Jacob R. Hathorn

Earlier this week the Supreme Court reaffirmed the validity of the “fraud-on-the-market” presumption of reliance that significantly eases the burden on investors in obtaining certification of private securities fraud class actions, but held that defendants must be permitted an opportunity at the class certification stage to rebut the presumption through direct or indirect evidence showing that the alleged misrepresentations did not impact the stock price. In the more ... Keep Reading »

California Law on Arbitration Changes … Again

by Meredith M. Moss and Mark A. Neubauer

The California Supreme Court this week confirmed the validity of an employee's waiver of the right to bring a class action contained in an arbitration agreement. That's the good news for employers. However, the court also held that these arbitration agreements may not include a waiver of an employee's right to bring representative claims under the Private Attorney General Act (PAGA), found at Section 2698-99 of the California Labor Code. That is not good news and ... Keep Reading »

Amended Class Definition That Excludes Putative Class Member Does Not Preclude American Pipe Tolling

by Jaret J. Fuente

The Eastern District of Michigan recently held that certain claims of a putative class member were tolled under American Pipe & Constr. Co. v. Utah., 414 U.S. 538 (1974), even though the named plaintiff had unsuccessfully moved for certification of an amended class whose definition excluded the putative class member’s claims. In 2013, Plaintiff Machesney filed a Telephone Consumer Protection Act (“TCPA”) class action against Ramsgate Insurance Company in the Eastern ... Keep Reading »

Florida Court Reverses Class Certification Order Based On Outdated Definition Of Unfair Trade Practice

by D. Matthew Allen and Jaret J. Fuente

Florida’s Third District Court of Appeal reversed an order certifying a class of Porsche vehicle owners who had their high intensity discharge headlights stolen during the class period.  The plaintiffs alleged that the defendant acted unfairly by distributing a product highly susceptible to theft without taking remedial steps such as notifying owners of the potential risk, in violation of Florida’s Deceptive and Unfair Trade Practices Act “(FDUTPA”). The trial court ... Keep Reading »

Preemptive Strike Terminates Nationwide Product Defect Class In Louisiana

by Amy Lane Hurwitz and Gary M. Pappas

A Louisiana District Court struck plaintiff’s class allegations in a putative nationwide class of Mercedes vehicle owners finding plaintiff failed to meet his burden of proving predominance, superiority and manageability. Plaintiff alleged that that Mercedes concealed defects in the GL model suspension system that caused the vehicles to lean and be undriveable.  Plaintiff’s complaint asserted various common law product liability, warranty and fraud theories as well as ... Keep Reading »

Federal Court Addresses American Pipe Tolling, Finding Statute of Limitations on Class Claims Accrued Upon Forum Non Conveniens Dismissal of Prior Putative Class Action

by Oleg Rivkin

A Delaware federal district court granted defendants’ motion to dismiss plaintiffs’ claims on statute of limitations grounds, rejecting plaintiffs’ argument that the claims had been tolled under the principles of cross-jurisdictional tolling. The case involves claims of injuries allegedly caused by the use of dibromochloropropane (DBCP”) on plantations in several Latin American countries.  A first putative DBCP class action was filed in Texas state court in 1993, was ... Keep Reading »

District Court Rejects Nationwide Class, But Certifies California-Only Consumer Class After Conducting Rigorous Analysis of Damages Models Under Comcast

by Carlton Fields

In Werdebaugh v. Blue Diamond Growers, the plaintiff brought suit in the United States District Court for the Northern District of California to certify a nationwide class of consumers who purchased Blue Diamond almond milk products containing allegedly false and deceptive labels.  He alleged violations of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act.  The plaintiff moved for certification of a class seeking injunctive ... Keep Reading »

Courts Reject Attempts to Pick Off Named Plaintiffs Via Offers Of Judgment

by Paul G. Williams

Following the Supreme Court’s 2012 recognition of concurrent federal and state jurisdiction over Telephone Consumer Protection Act (“TCPA”) class actions in Mims v. Arrow Financial Services, federal courts have issued numerous decisions addressing certification of TCPA classes that may be of broader interest to class action lawyers.  (By way of example, see our May 20, 2014 post: Ohio District Court Strikes Impermissible "Fail-Safe" Class Allegations.) Two recent TCPA ... Keep Reading »

The Eleventh Circuit Reverses CAFA-Based Remand Order

by David L. Luck

On June 5, 2014, the Eleventh Circuit decided in favor of Fifth Third Bank on its appeal of a district court order remanding a putative class action to Florida state court.  The basis for the remand order had been the district court’s determination that certain of the claims asserted in the removed complaint were legally insufficient and thus the damages claimed thereunder did not satisfy the $5,000,000 amount-in-controversy requirement imposed under the Class Action ... Keep Reading »

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