Assuming its other requirements are satisfied, the local controversy exception to CAFA jurisdiction requires a district court to remand a class action if, during the three-year period preceding the filing of that action, another class action was filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons. But what happens when the class action, prior to its removal, was actually consolidated with the ... Keep Reading »
Archives for August 2015
Fifth Circuit Holds Unaccepted Rule 68 Offer of Judgment Cannot Moot a Named Plaintiff’s Claim in a Putative Class Action
The defendant in a putative class action brought pursuant to the Electronic Funds Transfer Act (EFTA), 15 U.S.C. § 1693, et seq., tendered a Rule 68 offer of judgment to the named plaintiff before class certification briefing occurred. The defendant proposed to settle with the named plaintiff for the maximum allowable statutory damages for his individual claim, and to pay costs accrued and reasonable and necessary attorney fees, through the date of acceptance of the ... Keep Reading »
Seventh Circuit Affirms Approval of Class Action Coupon Settlement Despite “Clear Sailing” and “Kicker” Clauses and Potential Conflict of Interest
The Seventh Circuit affirmed a class action coupon settlement involving “clear sailing” and “kicker” clauses and a fee award based on the lodestar analysis rather than the value of the redeemed coupons, and notwithstanding a potential conflict of interest concerning the class, class counsel (Joseph Siprut), and one of the two representative plaintiffs (Adam Levitt, an attorney who served as co-counsel with Siprut in another class action). The plaintiffs asserted breach ... Keep Reading »
California District Court Finds CAFA’s Amount-in-Controversy Requirement Satisfied and No Local Controversy Alleged; Denies Motion to Remand
The Southern District of California denied a plaintiff’s motion to remand a putative class action removed pursuant to the Class Action Fairness Act (CAFA), where the plaintiff had alleged that the primary defendant’s product, Chobani yogurt, had become “the best-selling brand of Greek yogurt in the United States”; had annual revenues estimated at $1 billion in 2012; and had “collected tens of millions of dollars” in California alone (as the result of allegedly deceptive ... Keep Reading »
Internet Savvy Senior Lacks Standing to Bring Website Privacy Putative Class Claims Against AARP
The United States District Court for the District of Columbia recently dismissed a putative class action alleging that AARP violated its website privacy policy by allowing Facebook and Adobe to collect personal information about its users. The plaintiff alleged that AARP and its subsidiary AARP Services, Inc. (collectively, “AARP”), which advocate for individuals over the age of 50, breached their privacy policy by representing to users that certain third parties might ... Keep Reading »
Seventh Circuit Cleans Up the Law; Holds Rule 68 Offer of Complete Relief Does Not Render Litigation Moot
In a case that began as a putative class action, the Seventh Circuit held that a Rule 68 offer of complete relief does not render litigation moot. Plaintiff in Chapman v. First Index filed a "junk-fax" suit pursuant to the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., after allegedly receiving two unsolicited and unauthorized faxes from First Index. He demanded $3,000 plus an injunction under § 227(b)(3)(A). Plaintiff proposed to represent a class ... Keep Reading »
Seventh Circuit Petitioned for Rehearing En Banc to Determine Whether Data Breach Class Claims Survive Clapper, Satisfy Article III Standing Requirements
In January 2014, luxury retailer Neiman Marcus disclosed that it had suffered a cyberattack in which hackers may have gained access to 350,000 credit and debit cards used at its stores in late 2013. Plaintiffs, all of whom made credit or debit card purchases from the retailer during the relevant time period, filed a putative class action lawsuit on behalf of themselves and all other customers whose card information may have been compromised. Neiman Marcus moved to ... Keep Reading »
Eleventh Circuit Doubles Down on “No Class Tolling” Rule
The Eleventh Circuit has doubled down on its prior holding that a pending class action will not toll the statute of limitations for a later class action seeking to represent the same class. Plaintiff brought a class action alleging violations of the Telephone Consumer Protection Act, which carries a four-year statute of limitations. The state court granted summary judgment against plaintiff for lack of standing. A new plaintiff then sought to represent the class in ... Keep Reading »
Seventh Circuit Applies “Weak” Ascertainability Requirement, Splits From Third and Eleventh Circuits
A panel from the Seventh Circuit split from the Third and Eleventh Circuits and rejected what it described to be a “heightened” ascertainability requirement under Rule 23(b)(3). In Mullins v. Direct Digital, LLC, plaintiff filed a class action complaint alleging that defendant had misrepresented, in marketing materials and on product labels, the purported health benefits of a glucosamine supplement in violation of the Illinois Consumer Fraud and Deceptive Business ... Keep Reading »
Western District of Missouri Declines to Deliver Certification in Class Action Based on Alleged Newspaper Subscription Overcharges
The Western District of Missouri denied class certification in an action alleging three regional newspapers—the Kansas City Star, the Fort Worth Star Telegram, and the Belleville News-Democrat—unlawfully double billed some of their subscribers by shortening the length of their subscriptions. The named plaintiffs, subscribers to the Kansas City Star only, alleged that without providing proper notice, the newspapers deducted additional charges for special or premium ... Keep Reading »