The United States Court of Appeals for the Third Circuit reversed the denial of class certification in a case brought against a bank and its payment processors that allegedly engaged in a fraudulent scheme to cause unauthorized debits from consumer bank accounts. Reynaldo Reyes, as class representative, filed suit in the Eastern District of Pennsylvania under the Racketeer Influenced and Corrupt Organizations Act (RICO) against Zions First National Bank (“Zions Bank”) ... Keep Reading »
Eighth Circuit Affirms Denial of “Predominance” Class: The Long Arm of the Missouri Merchandising Practices Act Does Not Reach Wholly Out-of-State Conduct
In 2012, California resident Ronald Perras brought suit in federal district court against H&R Block and its affiliates (H&R), which are headquartered in Kansas City, Missouri. Perras alleged that H&R violated the Missouri Merchandising Practices Act (MMPA) by charging its customers compliance fees in excess of H&R’s actual cost of complying with new federal regulations. Perras sought to define a class of all persons in all states except Missouri who had ... Keep Reading »
All About That Base: Claim Against Fat Loss Supplement Maker Fails For Lack of Ascertainability
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 »
No Certification Where Class Representatives Have Conflicting Interests
Seventy-eight of the over 4,000 Michigan childcare providers who received state subsidies for offering services to low-income families voted to oppose having their union dues deducted from their subsidy payments. Six of the dissenting providers then filed a putative class action seeking equitable relief and monetary damages alleging that the dues deduction requirement in their collective bargaining agreement violated their First Amendment rights. The proposed class ... 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 »
Avon Calling: Employees Allege Overtime Exemption Misclassification
Avon categorizes all of its district service managers (DSMs) under the "administrative" exception of California law that requires employers to pay overtime wages. DSMs are the Avon employees who recruit and train the independent retail contractors Avon uses to sell its products to the consuming public. Plaintiffs – 19 former or current Avon DSMs – claimed Avon improperly treated them as exempt and sought to represent a Rule 23(b)(3) class. Relying on the California ... Keep Reading »
SCOTUS Accepts Certiorari to Address Article III Standing in “No-Injury” FCRA Class Action
On April 27, the Supreme Court accepted certiorari review in Spokeo, Inc. v. Robins, 13-1339, to address whether consumers can establish Article III standing without actual harm or injury, by alleging a violation of a federal statute. "Spokeo is a people search engine that organizes White Page listings, Public Records and Social Network information to help you safely find and learn about people." Robins filed a putative class action against Spokeo, alleging it is a ... 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 »
Predominance Lacking in Telephone Recording Case Involving Caller Consent
In a class action brought under a California penal statute that prohibits the intentional recording of telephone calls without the consent of all parties on the call, a California district court denied class certification on the grounds that common questions of fact do not predominate among the putative class members. Defendant, a construction materials supplier, received orders from its customers through a dedicated phone line. Prior to 2009, defendant utilized a ... Keep Reading »
Town Gets Schooled on Class Definition in PCB Contamination Case
The Town of Lexington, Massachusetts filed a putative class action in 2012 on behalf of itself and alleged similarly situated Massachusetts school districts that have one or more buildings with airborne polychlorinated-biphenyl (PCB) levels above the public health levels established by the EPA. From the outset of the litigation, defendants argued this proposed class was not ascertainable, as implicitly required by Rule 23, because it was impossible to identify the class ... Keep Reading »
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