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 »
Archives for May 2019
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 »