The Seventh Circuit Court of Appeals vacated a decision declining to certify a consumer class against IKO Manufacturing, in which the district court wrote that “commonality of damages” is essential, reasoning that the district court had incorrectly read Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), and Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), to require proof “that the plaintiffs will experience common damage and that their claimed damages are not ... Keep Reading »
Amended Class Definition That Excludes Putative Class Member Does Not Preclude American Pipe Tolling
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Florida Court Reverses Class Certification Order Based On Outdated Definition Of Unfair Trade Practice
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 »
Eighth Circuit Affirms Pre-Certification, Pre-Merits Discovery Summary Judgment
The Eighth Circuit affirmed a pre-certification summary judgment in favor of Bridgestone Retail Operations in a putative class action where the Plaintiff alleged that in connection with vehicle repairs Bridgestone had violated the Missouri Merchandising Practices Act (MMPA) by charging a disguised “shop supply” fee that it used for profit instead of supplies. The parties submitted a joint scheduling report that provided for discovery related to class certification ... Keep Reading »
Hershey Wins Pre-Certification Summary Judgment In California Labeling Class Action
The Northern District of California granted partial summary judgment in favor of The Hershey Company in a putative class action where the plaintiff alleged Hershey’s representations about certain of its products were unlawful and/or misleading. Plaintiff took issue with Hershey’s representations about antioxidants, nutrients, sugar, serving size, among others on its advertisements, packaging and website upon which the named Plaintiff alleged he relied when he purchased ... 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 »
California District Court Finds Commonality Lacking Under Dukes Analysis; Denies Certification
The U.S. District Court for the Northern District of California denied certification in a false advertising case brought under California’s False Advertising Law (FAL), Consumers Legal Remedies Act (CLRA) and the Unfair Competition Law (UCL) because the plaintiff failed to satisfy Rule 23(a)’s commonality requirement. The plaintiff alleged that the defendant developed, encouraged, and promoted three Unlimited Download Websites that offered media titles for a one-time ... Keep Reading »
A Class Action By Any Other Name Is Still A Class Action And Subject To CAFA
The U.S. District Court for the Eastern District of Missouri denied a plaintiff’s motion to remand a collection action against insurers brought on behalf of a certified class that had obtained a judgment in a separate action against a mobile home park operator. After obtaining the judgment, the class representative filed a separate “equitable garnishment action” against the park operator’s insurers under a Missouri statute that provides for collection of insurance by a ... Keep Reading »
Supreme Court Accepts Certiorari In CAFA Removal Case
On April 7, 2014, the Supreme Court accepted certiorari review in Dart Cherokee Basin Operating Company LLC v. Owens, No. 13-719, to resolve a circuit split regarding whether the Class Action Fairness Act requires a removing defendant to submit evidence in support of removal at the time of the notice of removal or whether evidence can be submitted later in response to a motion to remand. The United States District Court for the District of Kansas remanded a putative ... Keep Reading »
Further Affiant Sayeth Naught: The Import Of Personal Knowledge In Class Certification Affidavits
The Eastern District of Virginia weighed in on the split among federal district courts as to whether affidavits in support of or in opposition to motions for class certification must be based on personal knowledge. The affidavit in question began with the boilerplate predicate, “I have personal knowledge of the matters discussed below,” but the affiant admitted later in deposition that he did not. In fact, the affiant conceded that he simply signed a document prepared by ... Keep Reading »