Representative actions brought under California’s Private Attorneys General Act (PAGA) have been the bane of that state’s labor lawyers’ existence since PAGA’s enactment in 2004. Thanks to this week’s Supreme Court decision in Viking River Cruises, Inc. v. Moriana, forward-thinking clients can say goodbye to all that. The PAGA Predicament PAGA enlists employees as private attorneys general to enforce California labor law. By its terms, PAGA authorizes an “aggrieved ... Keep Reading »
About D. Matthew Allen
$91M in AAA Filing Fees? Another Lesson in Being Intentional in Drafting Class Action Waivers in Arbitration Agreements
We have blogged in the past about the importance of companies being intentional in drafting their arbitration agreements. It is important to think through such issues as: Should we include a class action waiver? Should we include a collective action waiver? Who decides the scope of arbitration and interprets the scope of such waiver provisions: a court or an arbitrator? How susceptible are we to massive numbers of repeat claims? I personally have been involved in a ... Keep Reading »
A Year in Review: Top 10 Class Action Cases of 2021
This year has been an important one for class action law. Here are 10 of the most important class action cases of 2021 and their impact on class action litigation. TransUnion LLC v. Ramirez In TransUnion, a class of 8,185 individuals sued TransUnion under the Fair Credit Reporting Act after the company had erroneously indicated that their names potentially matched a name on the U.S. Treasury Department’s Office of Foreign Assets Control list of terrorists, drug ... Keep Reading »
Eleventh Circuit Judge Suggests Substantive Canon of Interpretation Favoring Arbitration Conflicts With Textualism
This blog has occasionally advised corporate counsel to review their company's arbitration agreements for scope and clarity. This is another such warning. Simply put, buttoned-up contracts containing arbitration provisions (including class action waivers) prevent class action exposure. But as Sixt Rent A Car just found out, less carefully drafted provisions result in class action litigation in court. And as Judge Newsom warned in a concurrence to his own opinion, ... Keep Reading »
What’s Good for Trial Is Good for Class Certification: Fifth Circuit Rules That Daubert Applies at Class Certification Stage
Class discovery is inherently more limited than normal fact discovery for trial, and litigators understandably approach it in a more narrow fashion than they would trial discovery. The Fifth Circuit recently reminded class action litigators, however, that such tailoring should not be extended to expert discovery. In Prantil v. Arkema Inc., the court joined the Second, Seventh, and Eleventh Circuits in ruling that the Daubert analysis governing the admission of expert ... Keep Reading »
One Game, One Stadium: Eleventh Circuit Spikes Collateral Challenge to Tampa Bay Buccaneers Proposed Class Action Settlement
The Eleventh Circuit recently imparted an important message to the class action bar, and in particular to attorneys representing different named plaintiffs in competing class actions: there is “only one gatekeeper under Rule 23,” so any challenge to a proposed class action settlement should be presented to the district judge deciding whether to approve that settlement, not to a different judge by way of a collateral attack on the proposed settlement. Several years ... Keep Reading »
An Unauthorized Bounty: Eleventh Circuit Strikes Named Plaintiff Incentive Payment
This week, an Eleventh Circuit panel, in a 2-1 decision, reversed the approval of an incentive payment to the named plaintiff, calling the payment an unauthorized bounty. The case involved a Telephone Consumer Protection Act (TCPA) class action settlement that the majority characterized as being "just like so many others that have come before it." But this familiarity was "exactly the problem." According to the court, the district court "repeated several errors that, ... Keep Reading »
Authority Over Efficiency: District Court Lacks Authority To Rule On Arbitration Preemption Question In Remanded PAGA Action, Ninth Circuit Says
As a recent Ninth Circuit decision demonstrates, although substantial time, effort, and briefing may be spent litigating issues in a removed federal putative class action, parties should be prepared for a round two of their persuasion attempts in state court where the case is remanded to state court. In Echevarria v. Aerotek, Inc., a California district court remanded a representative action filed under California’s Private Attorneys General Act (PAGA) after finding ... Keep Reading »
Whither Objector Blackmail
The Seventh Circuit confronts “objector blackmail” and limits the extraction of “rents from the litigation process simply by showing up and objecting to consummation of the settlement.” On August 6, 2020, the Seventh Circuit Court of Appeals addressed the thorny “problem in class-action litigation known colloquially as ‘objector blackmail.’” The court confronted a situation in which three objectors filed an appeal after their objections were denied. But they dismissed ... Keep Reading »
Considerable Deference With a Caveat: Third Circuit Addresses Fee Awards
The Third Circuit Court of Appeals recently issued a decision regarding the fee award in the National Football League concussion injury litigation. The decision is non-precedential but still instructive. One takeaway is that appellate courts will show “considerable deference” to district court fee awards. The other takeaway, however, is that district courts still must provide enough of an explanation for appellate courts to meaningfully review the award. When they do ... Keep Reading »
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