Adam Karhu bought a dietary supplement called VPX Meltdown Fat Incinerator (“Meltdown”) in reliance on advertising by Vital Pharmaceuticals, Inc. (VPX) that Meltdown would result in fat loss. Concerned that Meltdown did not in fact result in loss of girth “in all the right places,”1 if at all, Karhu filed a class action suit in the Southern District of Florida alleging that Meltdown’s advertising was false. Karhu’s motion for class certification was denied because he ... Keep Reading »
“Game Over”: Aliens vs. Consumer Class Action
Two video game enthusiasts brought a consumer class action suit against Sega of America, Inc. ("Sega") and Gearbox Software, LLC ("Gearbox") for their alleged disappointment in the quality of the video game "Aliens: Colonial Marines"("ACM"). ACM was marketed as "the canon sequel" to the film Aliens, the 1986 classic blockbuster in which Bill Paxton's character famously exclaimed "Game over, man, now what are we supposed to do?" after the dropship meant to rescue the ... Keep Reading »
Two Out of Three Ain’t Bad: Kansas District Court Certifies Settlement Class and Grants Preliminary Approval but Rejects Notice by Publication
A boy fell through the vinyl guardrail his father installed on the second story deck of their home. After settling his son's personal injury claims, the father sued Home Depot and the guardrail manufacturer on behalf of himself and other Kansas purchasers for breach of warranty and violations of the Kansas Consumer Protection Act alleging that the guardrail brackets were defective. The district court certified a class, and the Tenth Circuit granted the parties' Rule ... Keep Reading »
Running on Empty: Defective Gas Class Sputters in Louisiana District Court
The Middle District of Louisiana denied certification of a putative class bringing claims for redhibition and unjust enrichment against Exxon Mobil Corporation ("Exxon"). Plaintiffs allegedly purchased gasoline refined at Exxon’s Baton Rouge terminal that Exxon conceded contained a resin accidentally introduced during the refining process. The parties disputed whether the resin fully combusted during normal engine operations or remained in the engine causing damage and ... Keep Reading »
Illinois District Court Denies Certification of Class in TCPA Claim for Lack of Typicality, Adequacy, Numerosity and Ascertainability
The Northern District of Illinois denied certification of a class in a claim brought pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Sec. 227. Plaintiff alleged that defendant violated the TCPA by sending it unsolicited faxes promoting defendant's catering services. In discovery, plaintiff obtained a fax log demonstrating that Defendant sent 3,000 faxes to 106 unique fax numbers. Plaintiff also obtained a template fax that defendant allegedly used ... Keep Reading »
Northern District of California Adopts Flexible Approach To Analyzing Pre-Certification Standing Issues
The United States District Court for the Northern District of California partially granted and partially denied a motion to dismiss based on the standing of 18 named plaintiffs from 13 different states seeking class certification under the consumer protection and privacy laws of 48 states arising from plaintiffs’ purchases of numerous cell phone models. Plaintiffs sued the software developer of a cell phone network diagnostic tool and numerous mobile device ... Keep Reading »
Seventh Circuit Rejects Another Settlement With Disproportionate Attorney Fees Compared to Class Member Benefits
The Seventh Circuit Court of Appeals rejected a class action settlement because class counsel would have received generous attorney fees for conferring only meager benefits to the class. Writing for the Court, just as he did a few months earlier in Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014), Judge Posner described this settlement as “a selfish deal between class counsel and defendant” that “disserves the class.” Plaintiffs sued NBTY and Rexall Sundown for ... Keep Reading »
Exaggeration of Counsel’s Class Action Experience Draws Rule 11 Sanction
New York District Court Judge Shira A. Scheindlin found class counsel’s allegation that they were experienced and competent was false because they could not provide any case in which they were certified as class counsel or recovered monetary relief for class member. As a result, the court found that class counsel violated Rule 11. The court declined to award attorney fees as a sanction, however, finding that the public reprimand was a sufficient deterrent. The Rule 11 ... Keep Reading »
Ohio District Court Strikes Impermissible “Fail-Safe” Class Allegations
In a Telephone Consumer Protection Act (TCPA) case, the United States District Court for the Southern District of Ohio struck plaintiff’s class action allegations because Plaintiff proposed a “fail-safe” class in which membership was dependent on the validity of the putative class member’s claim. A fail-safe class is impermissible because it includes only those who are entitled to relief. Either the class members win on the merits, or by virtue of losing, they are not in ... Keep Reading »
California District Court Invalidates Opt-Outs And Orders Employer To Issue A Curative Notice To Employees Regarding A Putative Wage And Hour Class Action
The U.S. District Court for the Northern District of California, in a wage and hour class action, found that the employer’s written communication to putative class member employees about the action, which included an opt-out declaration form, was “problematic” and “one-sided.” The court invalidated signed opt-outs, and ordered the employer to send a “curative notice” to the employees. The employer, a dental practice, described itself as a close-knit group of ... Keep Reading »