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Ascertainability Class Action Articles

The latest class action developments and trends in ascertainability, including news, key cases, and strategies.

Michigan District Court Holds TCPA “Junk Fax” Class Ascertainable, Certifies Class

by Clifton R. Gruhn

The Eastern District of Michigan recently certified a class of plaintiffs suing under the Telephone Consumer Protection Act (TCPA), rejecting the defendants’ arguments that: (1) there would be “significant issues” identifying class members because the faxes at issue were sent nearly a decade ago; and (2) some putative class members may have had prior business relationships with the defendants and thus may have consented to receipt of the faxes. The defendants had hired a ... Keep Reading »

Defects More Than Cosmetic: Beauty Product Purchasers Fail to Satisfy Rule 23

by Carlton Fields

The Southern District of New York recently denied class certification in a consolidated putative class action against a cosmetics company for breach of contract, false advertising, unfair competition, deceptive acts and practices, and other violations of state law. Plaintiffs alleged the company made false claims regarding its anti-aging products and sought to certify multiple classes of purchases, nationwide and in two states, with additional subclasses based on whether ... Keep Reading »

Seventh Circuit Applies “Weak” Ascertainability Requirement, Splits From Third and Eleventh Circuits

by Carlton Fields

A panel from the Seventh Circuit split from the Third and Eleventh Circuits and rejected what it described to be a “heightened” ascertainability requirement under Rule 23(b)(3). In Mullins v. Direct Digital, LLC, plaintiff filed a class action complaint alleging that defendant had misrepresented, in marketing materials and on product labels, the purported health benefits of a glucosamine supplement in violation of the Illinois Consumer Fraud and Deceptive Business ... Keep Reading »

All About That Base: Claim Against Fat Loss Supplement Maker Fails For Lack of Ascertainability

by David E. Cannella and Gary M. Pappas

Adam Karhu bought a dietary supplement called VPX Meltdown Fat Incinerator (“Meltdown”) in reliance on advertising by Vital Pharmaceuticals, Inc. (VPX) that Meltdown would result in fat loss. Concerned that Meltdown did not in fact result in loss of girth “in all the right places,”1 if at all, Karhu filed a class action suit in the Southern District of Florida alleging that Meltdown’s advertising was false. Karhu’s motion for class certification was denied because he ... Keep Reading »

“Game Over”: Aliens vs. Consumer Class Action

by David E. Cannella and Gary M. Pappas

Two video game enthusiasts brought a consumer class action suit against Sega of America, Inc. ("Sega") and Gearbox Software, LLC ("Gearbox") for their alleged disappointment in the quality of the video game "Aliens: Colonial Marines"("ACM").  ACM was marketed as "the canon sequel" to the film Aliens, the 1986 classic blockbuster in which Bill Paxton's character famously exclaimed "Game over, man, now what are we supposed to do?" after the dropship meant to rescue the ... Keep Reading »

Town Gets Schooled on Class Definition in PCB Contamination Case

by David L. Luck and Gary M. Pappas

The Town of Lexington, Massachusetts filed a putative class action in 2012 on behalf of itself and alleged similarly situated Massachusetts school districts that have one or more buildings with airborne polychlorinated-biphenyl (PCB) levels above the public health levels established by the EPA. From the outset of the litigation, defendants argued this proposed class was not ascertainable, as implicitly required by Rule 23, because it was impossible to identify the class ... Keep Reading »

Running on Empty: Defective Gas Class Sputters in Louisiana District Court

by David E. Cannella and Gary M. Pappas

The Middle District of Louisiana denied certification of a putative class bringing claims for redhibition and unjust enrichment against Exxon Mobil Corporation ("Exxon").  Plaintiffs allegedly purchased gasoline refined at Exxon’s Baton Rouge terminal that Exxon conceded contained a resin accidentally introduced during the refining process. The parties disputed whether the resin fully combusted during normal engine operations or remained in the engine causing damage and ... Keep Reading »

GCs facing more bet-the-company and higher exposure class actions

by Chris S. Coutroulis

Across industries, companies spent $2 billion on class action lawsuits in 2014, slightly less than the $2.1 billion they spent in 2013. This year, spending is expected to return to 2013 levels. Companies’ class action dockets increased on average by one new case in 2014, bringing the average number of class actions managed to five. This total is expected to remain constant in 2015, as the number of new matters is likely to be offset by those resolved. As before, ... Keep Reading »

Fifth Circuit Affirms Certification of Electronic Funds Transfer Act Class

by David L. Luck and Jaret J. Fuente

In a case similar to its late-2014 decision in Mabary v. Home Town Bank, N.A., 771 F.3d 820 (5th Cir. 2014), the Fifth Circuit recently affirmed certification of a class of consumers who were charged a fee for using an automated teller machine (“ATM “) that allegedly lacked a fee notice on its exterior, in violation of the Electronic Funds Transfer Act (“EFTA”), 15 U.S.C. § 1693b(d)(3) (2011).  See Frey v. First Nat. Bank Southwest, No. 13–10375, --- F. App’x ---, 2015 ... Keep Reading »

Illinois District Court Denies Certification of Class in TCPA Claim for Lack of Typicality, Adequacy, Numerosity and Ascertainability

by David E. Cannella and Gary M. Pappas

The Northern District of Illinois denied certification of a class in a claim brought pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Sec. 227. Plaintiff alleged that defendant violated the TCPA by sending it unsolicited faxes promoting defendant's catering services. In discovery, plaintiff obtained a fax log demonstrating that Defendant sent 3,000 faxes to 106 unique fax numbers. Plaintiff also obtained a template fax that defendant allegedly used ... Keep Reading »

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