On September 5, Judge Dlott (Southern District of Ohio) denied plaintiff’s motion for class certification in a case involving the “junk fax” provision of the Telephone Consumer Protection Act of 1991. Perhaps perplexed that such cases still arise, the district court explained that, “[a]lthough it seems odd that the problem persists in the electronic age, the ‘junk fax’ provision attempts to curb the inundation of unwanted faxes.” In this case, there was no dispute that ... Keep Reading »
The Eleventh Circuit Weighs in on the Intersection of Arbitration and Class Action Jurisprudence
On September 19th, the Eleventh Circuit Court of Appeals resolved a question of first impression in the circuit: whether the availability of the class action mechanism is a question of arbitrability that presumptively should be decided by the court. The Court ruled that the availability of class arbitration presumptively should be decided by the court. But, in a second ruling that could overshadow the first for many existing arbitration agreements, the Court proceeded to ... Keep Reading »
Volkswagen Passes Fairness Test for Class Settlement in Dispute Over “Defeat Devices” to Bypass Emission Tests
Last month the Ninth Circuit affirmed a district court decision approving a class settlement regarding Volkwagen’s marketing of clean diesel vehicles that used so-called “defeat devices” to circumvent emissions tests. Hundreds of “defeat device” lawsuits against Volkswagen were consolidated in the Northern District of California for pretrial proceedings. The proposed settlement provided over $10 billion in potential damages and class members’ recovery depended on whether ... Keep Reading »
Defense Victories in Genetic and Biometric Privacy Class Actions
In what may be a glimpse into the next frontier in class action litigation, two federal courts recently disposed of putative class actions alleging violations of state privacy laws involving genetic and biometric data. In a rare defense victory in a circuit favored by the plaintiff’s bar, a Ninth Circuit panel affirmed a decision by the United States District Court for the District of Alaska denying plaintiff’s motion for certification of claims under Alaska’s ... Keep Reading »
Seventh Circuit Approves Cy Pres Settlement
We previously reported on the uncertainty of cy pres settlements in class action lawsuits. Although the Supreme Court granted cert on the issue, the Seventh Circuit weighed in during the interim by approving a settlement that included a potential payout to cy pres recipients. The case arose out of a million phone calls made to consumers throughout 2011 and 2012 in which people were offered a chance to go on a free cruise if they agreed to participate in a political ... Keep Reading »
Fourth Circuit Holds Plaintiffs Who Allege Identity Theft Have Standing to Sue Post-Data Breach, But What Does it Mean For Certification?
The Fourth Circuit’s 2017 decision in Beck v. McDonald held that the mere fear of identity theft in the wake of a data breach was insufficient to confer Article III standing. Plaintiffs must do more. But how much more? The Fourth Circuit’s latest holding clarifies that plaintiffs who allege that credit cards have been fraudulently applied for – and in some cases issued – using their nonpublic personal information satisfy Article III’s requirements. Optometrists ... Keep Reading »
Are Administrative Fees and Costs a Benefit to the Class as a Whole? A Circuit Split Continues
In 2017, the Eighth Circuit reversed the certification of a settlement class in the Target 2013 security breach litigation. See In re Target Corp. Customer Data Sec. Breach Litig., 847 F.3d 608, 613 (8th Cir. 2017). The court remanded the case to the district court to conduct a proper class certification analysis. On remand, the district court again certified the settlement class. A second appeal was taken by two objectors and, this time, the Eighth Circuit affirmed the ... Keep Reading »
No Refund For You! Voluntary Payment Defense Precludes Class Certification in Florida Red Light Camera Case
Florida’s Fifth District Court of Appeal (“Fifth DCA”) upheld a denial of certification in a putative class action seeking refunds of fines paid under a red light camera ordinance, ruling that the application of the voluntary payment defense precluded findings of commonality, typicality, predominance, and superiority. At issue was the City of Orlando’s (“City”) issuance of fines pursuant to an ordinance that allowed for the use of cameras to record vehicles failing to ... Keep Reading »
Must a Plaintiff Representing Unnamed Parties Under California’s Private Attorney General Act Comply with Rule 23’s Requirements?
Must a plaintiff who brings an action under California’s Private Attorney General Act (PAGA) comply with Rule 23’s requirements? Although the Ninth Circuit has not addressed the issue, one California federal district court recently weighed in, reiterating the California Supreme Court’s 2014 decision in Iskanian v. CLS Transp. Los Angeles, LLC that a PAGA action is different than a class action and more akin to a qui tam suit. Plaintiff, a Costco employee, filed suit ... Keep Reading »
District Court Denies Motion for Preliminary Approval of Class Action Settlement Citing Dearth of Information and Failure to Follow Court’s Settlement Guidelines
The District Court for the Northern District of California denied a motion for preliminary approval of a proposed settlement, citing the plaintiffs’ disregard of the court’s guidelines and various concerns as to whether the proposed settlement was “fair, reasonable, and adequate.” The matter involves claims stemming from allegedly defective touch screens and related software in Ford vehicles, and the proposed settlement provided for various forms of monetary relief and ... Keep Reading »
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