In a significant decision awaited by U.S. employers since January 2017, the Supreme Court upheld the use of class action waivers in arbitration agreements. Justice Gorsuch wrote the majority opinion, which was joined by Justices Roberts, Kennedy, Thomas, and Alito. Justice Ginsburg filed an extensive dissenting opinion joined by Justices Breyer, Sotomayor, and Kagan. The decision answers a question that has loomed large for employers: Can they include class action ... Keep Reading »
Third Circuit Rejects ‘Shingle Lottery’ Theory of Common Defect in Putative Homeowner Class
The Third Circuit Court of Appeals recently affirmed a district court order denying certification to a group of homeowners in four states who alleged roof shingle manufacturer Owens Corning sold defective roof shingles and misrepresented their expected useful life. Specifically, plaintiffs alleged claims for breach of express warranty, breach of implied warranty of merchantability, and violation of various state consumer protection statutes because the shingles installed ... Keep Reading »
Third Circuit Ascertainability Requirement Puts the Squeeze on Orange Juice Purchasers
A New Jersey district court denied certification to a putative class of Tropicana orange juice purchasers from “Members Only” or “Loyalty Card” stores in California, New York, New Jersey, and Wisconsin. The plaintiffs alleged various common law and statutory consumer protection causes of action based on Tropicana’s alleged false marketing of its orange juice as “all natural.” The court found that the plaintiffs satisfied the four certification requirements of Rule 23(a) ... Keep Reading »
Too Fast and Furious: Ninth Circuit Unwinds Hyundai and Kia Nationwide Class Action Settlement
In a split panel, the Ninth Circuit Court of Appeals reversed a district court’s certification of a nationwide class action settlement because the lower court failed to conduct a sufficient predominance inquiry under Rule 23(b)(3). In 2012 Hyundai and Kia were accused of overstating their fuel efficiency estimates in advertisements and car window stickers for certain of their vehicles. A flurry of putative class action litigation ensued across the country, and the MDL ... Keep Reading »
State of Louisiana, as Absent Class Member, Escapes CAFA Settlement Trap
The Third Circuit Court of Appeals affirmed a Pennsylvania district court decision holding the Eleventh Amendment to the United States Constitution prevented a private party from enjoining the state of Louisiana from bringing claims identical to those previously thought released in a class action settlement. As our prior post detailed, in 2013 pharmaceutical giant GlaxoSmithKline (GSK) settled a class action brought against it by indirect purchasers of the allergy ... Keep Reading »
SeaWorld Shareholders See Red After World Sees Blackfish
A California District Court granted certification to a group of SeaWorld investors in a shareholder securities fraud case following the release of the documentary “Blackfish.” First released in July 2013, “Blackfish” chronicles the cruelty of killer whale capture methods, the danger posed by killer whales to trainers, and the physical and psychological strains killer whales experience in captivity. The movie resulted in significant negative publicity for SeaWorld and ... Keep Reading »
401K Not OK: ERISA Class Certified Under Rule 23(b)(1)(B)
A New York district court granted certification in an ERISA class action brought by employees of Deutsche Bank alleging the individual fiduciaries of the company’s retirement plan engaged in self-dealing and mismanagement of its 401K plan. The court certified the class under Rule 23(b)(1)(B), which authorizes class actions when prosecuting separate actions would create a risk of decisions that would be dispositive of the interest of other members not parties to the ... Keep Reading »
Kansas Judge Rejects Discovery From Putative Class Members
A magistrate judge in Kansas denied the defendant’s request to conduct discovery of putative class members via a voluntary questionnaire. Plaintiff Hapka filed a class action against home health care provider CareCentrix stemming from a 2016 data breach of employees’ personal information, including wage and tax statements. Plaintiff alleged a fraudulent tax return was filed in her name following the cyberattack and that she continued to be at a heightened risk for tax ... Keep Reading »
Lone Objector’s Class-Conflict Arguments Miss the Target
In 2015, Target settled a class action stemming from a massive data breach of its customers’ sensitive information. According to the settlement terms, Target agreed to pay $10 million to those affected. The Minnesota district court originally granted approval over the class and the settlement. However a lone objector filed an appeal, and the Eighth Circuit granted a limited remand because it was not satisfied the district court had conducted a “rigorous analysis” of the ... Keep Reading »
Saved By The Bellwether Trial in the Ninth Circuit
Removal under the “mass action” provision of the Class Action Fairness Act (CAFA) is appropriate when 100 or more plaintiffs take the affirmative step of proposing to try their claims jointly and the claims involve common issues of law or fact. The Ninth Circuit recently examined whether plaintiffs’ request for a bellwether trial in eight separate cases involving the same allegedly defective medical devices amounted to a proposal to have claims tried jointly thereby ... Keep Reading »