Home Depot filed a certiorari petition in the United States Supreme Court aimed at closing an emerging loophole in CAFA jurisprudence in various circuits. According to the petition, some circuits have “narrowly construed CAFA’s removal statute to forbid removal by a newly-added counterclaim defendant in an otherwise removable class action.” This litigation began as a collection dispute brought by the original plaintiff against certain customers, the original ... Keep Reading »
An Offer You Can Refuse
The Second Circuit Court of Appeals recently confronted (again) a situation where a defendant made an offer of judgment to the putative class representative to provide all of the relief available to the individual plaintiff. How does such an offer affect a putative class representative prior to class certification? May the putative class representative refuse the offer of judgment and avoid a determination of mootness? In particular, the defendant in this case served ... Keep Reading »
Class Representatives Do Not Hold Veto Power Over Class Settlement
In In re FedEx Ground Package Sys., Inc. Employment Practices Litig., No. 3:05-CV-595 RLM, 2017 WL 632119 (N.D. Ind. Feb. 14, 2017), only one of a total of seven class representatives signed off on accepting a proposed class settlement with the defendant, FedEx. Further, the class representative who assented to the proposed class settlement later withdrew his signature once he realized that the other six representatives objected to the proposed settlement. In ... Keep Reading »
Pay Attention: A Class Certification Decision You Might Want To Remember
On March 16, 2017, the Southern District of California certified a class action against the manufacturer of gingko biloba and Costco Wholesale Corporation, the seller. Plaintiff alleged, on behalf of a putative class of California purchasers of TruNature Gingko, that the product does not provide any mental clarity, memory, or mental alertness benefits. Plaintiff’s claims were brought under California's unfair competition law and California's Consumer Legal Remedies ... Keep Reading »
Mortgage Servicer Defeats Class Certification Over Collection Practices Allegedly Targeting Discharged Mortgage Debts
The Middle District of Florida recently denied a plaintiff’s motion for class certification concerning claims that a collection agency illegally and intentionally sent collection correspondence to mortgagees whose debts already had been discharged in bankruptcy proceedings. The plaintiff alleged violations of state and federal consumer protection laws because the debt collector allegedly made continued and repeated communications to him directly — not his counsel — ... Keep Reading »
What are Interim Class Counsel and When Should They be Appointed?
Even before certification of a class under Rule 23(a)-(b), the district court has authority to appoint “interim counsel” under Rule 23(g)(3) “to act on behalf of a putative class before determining whether to certify the action as a class action.” However, as the District of New Jersey recently explained, “neither the federal rules nor the Advisory Committee Notes expressly” state the analysis used to determine when “interim counsel” should be appointed and which counsel ... Keep Reading »
TCPA Class Certified Based Largely on “Concrete Injury” Determination
Following the United States Supreme Court’s decision in Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) – which held that Article III standing requires a concrete injury, even when an injury has otherwise been established for statutory purposes – there has been a debate as to what constitutes Article III “concrete injury” under the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. With certain exceptions, the TCPA creates a statutory cause of ... Keep Reading »
Judge Gorsuch on Class Actions
On January 31, President Trump announced that Judge Neil Gorsuch of the Tenth Circuit Court of Appeals would be nominated for the United States Supreme Court. We took a look at those opinions authored by Judge Gorsuch on the Tenth Circuit that primarily addressed class action issues. These decisions confront a range of problems that arise in class action litigation. They also reveal his accessible, sometimes breezy, sometimes pointed, writing style. Four such decisions ... Keep Reading »
California Court Rejects Attempt to Overturn Judgment Based on Spokeo
A defendant who lost a bench trial in a certified class case alleging that it violated the Electronic Funds Transfer Act by forcing the plaintiff and class to use electronic funds transfer services to obtain loans sought to upend the verdict by arguing that the Supreme Court’s recent Spokeo decision made clear the plaintiff lacked Article III standing to sue. The court rejected that argument. In Spokeo, the Supreme Court ruled that for Article III standing to exist, a ... Keep Reading »
Divergent Views on Class Discovery
In two recent cases, California and Florida district courts reached divergent views on whether to permit wide-ranging class discovery prior to a certification decision. Interestingly, both decisions involved Ocwen companies. In Weiner, a RICO class action, the class plaintiffs sought discovery of defendants’ “internal communications relating to their decision to spin-off” a subsidiary because those communications ostensibly bore on “classwide intent to fraudulently ... Keep Reading »
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