Two couples who own homes in central Florida attempted to bring a class action against a homebuilder, stemming from alleged violations of Florida’s building code. Section 553.84, Florida Statutes, provides for such a private cause of action, but also provides a statutory defense for homebuilders where: (1) the homebuilder obtained any required building permits, and the appropriate agency approved the plans; (2) the project passed all inspections required under the Code; ... Keep Reading »
Ascertainability Class Action Articles
The latest class action developments and trends in ascertainability, including news, key cases, and strategies.
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 »
Ascertainability and Predominance Foil Certification of Spyware Invasion of Privacy Class
A Georgia district court denied certification of a multi-state common law invasion of privacy class in which plaintiff sought damages and an injunction against the lessor of computers allegedly containing unauthorized spyware. The court held that the class members could not be ascertained in an objective and administratively feasible manner. The court also held that common issues did not predominate over individual issues with regard to numerous variations in applicable ... 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 »
Ninth Circuit Parses “Administrative Feasibility” and “Ascertainability” – Refuses to Acknowledge Either as a Prerequisite to Class Certification
The Ninth Circuit affirmed certification of putative class actions brought against ConAgra Foods, Inc. (“ConAgra”) by consumers who claimed that ConAgra’s “100% Natural” labels on Wesson cooking oils were false or misleading. The plaintiffs argued that the oils are “not natural” because they are made from bioengineered ingredients, and moved to certify eleven statewide classes of consumers who purchased the oils within the applicable statute of limitations periods. ... Keep Reading »
2016 Carlton Fields Class Action Survey Reveals Important Trends in Class Action Management
The fifth annual edition of the Carlton Fields Class Action Survey has just been released, and in this year’s survey corporate counsel report that class action spending has increased after four consecutive years of decline. Spending is also projected to increase in 2016. This marks a key turning point. The Numbers Across industries, the companies surveyed report that they spent $2.1 billion on class action lawsuits in 2015. The number of companies facing at least one ... Keep Reading »
Supreme Court Won’t Resolve Multi-Circuit Split on Ascertainability Requirement
On February 29, the U.S. Supreme Court denied certiorari review in Mullins v. Direct Digital, LLC, No. 15-1776, an ascertainability case we previously covered when it was decided in the Seventh Circuit. In Mullins, a panel of the Seventh Circuit expressly split from decisions in the Third and Eleventh Circuits and held that a class plaintiff is not required to demonstrate the “administrative feasibility” of ascertaining a class. Instead, the panel applied a weaker ... Keep Reading »
Limits of Ascertainability Reached in Class Allegations Against Equifax
Plaintiff, hoping to recover from Equifax for issuing a credit report with "incorrect and damaging information," sought to represent a class of "all persons who disputed an Equifax credit report and where Equifax failed to apply the proper and appropriate [Fair Credit Reporting Act, (“FCRA”)] procedures." On defendant's motion to strike these class allegations, the federal district court in New Jersey said, "this Court would never grant a motion for class certification ... Keep Reading »
Court Allows Class Member Self-Identification Where Employer Failed to Retain Records
The Northern District of California recently certified a class of employees in an action against an auto parts store for failure to reimburse expenses. Plaintiff alleged that the defendant required certain management-level employees—specifically, store managers, assistant store managers, and retail service specialists—to make daily bank deposits but did not reimburse them when they used personal vehicles to do so. Though the company had a standard policy regarding ... Keep Reading »
No Automatic Certification For Robosigning Class
In this multidistrict litigation, plaintiffs sought certification of two classes of Arizona property owners challenging the operation of the Mortgage Electronic Registration Systems (MERS) in transferring the beneficial interest under their deeds of trust. Plaintiffs alleged that these mortgage transactions misrepresented MERS’s authority as a beneficiary, contained false statements, and were robosigned. The court granted defendants’ motion to dismiss and plaintiffs ... Keep Reading »