The Ninth Circuit in Resh v. China Agritech, Inc., No. 15-55432, 2017 WL 2261024 (9th Cir. May 24, 2017), revived the third successive putative shareholder class action against a fertilizer manufacturer after the district court dismissed this last case as untimely. By reversing the lower court’s holding that the case was time-barred, the Ninth Circuit expanded the American Pipe tolling rule (as further expanded by Crown Cork) to allow the individual claims of unnamed ... Keep Reading »
District Court Denies Certification of Nationwide Class, Finding Individual Retail Stores’ Alleged Failures to Follow Internal Policies Not Suitable for Class Relief
An Illinois district court recently denied certification, finding that the putative nationwide class failed the commonality and numerosity prongs of Rule 23(a) and that injunctive relief was not available under Rule 23(b)(2) because the defendants did not have a standard policy or procedure causing injury to class members. The plaintiffs brought a putative class action seeking to hold Kohl's Corporation and Kohl's Department Stores, Inc. (“Kohl's”) liable for alleged ... Keep Reading »
Nationwide Class Claims Under A Single State’s Consumer Protection Laws?
A flurry of recent consumer protection cases in California federal courts led to mixed results for defendants attempting to dismiss nationwide class claims based on the state’s choice of law rules. The U.S. District Court for the Southern District of California recently addressed the issue in Azar v. Gateway Genomics, LLC, in which plaintiff brought a putative nationwide class action alleging, inter alia, violations of California’s Unfair Competition Law (UCL), False ... Keep Reading »
A Damages Class Is Certified, but No Standing for Declaratory and Injunctive Class
A representative plaintiff who purchased Aveeno sunscreen products and baby bath products brought putative class actions against the products’ manufacturer, Johnson & Johnson, in the United State District Court for the District of Connecticut. Both of plaintiff’s asserted classes challenged Aveeno’s product labeling under the Connecticut Unfair Trade Practices Act (CUTPA) and the similar consumer protection laws of several other states and the District of ... Keep Reading »
Alleged Violations of Florida Building Code Not Subject to Class Treatment
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 »
Veterans’ Claims Move to the Head of the Class
In an issue of first impression, the United States Court of Appeals for the Federal Circuit addressed whether the Court of Appeals for Veterans Claims (“Veterans Court”) has the authority to certify class actions. The case arose from the denial of a Vietnam War veteran’s administrative claim for disability benefits for service-connected post-traumatic stress disorder, diabetes, hypertension, and strokes. In early 2013, the Department of Veterans Affairs (“VA”) notified ... Keep Reading »
Attempting to Counter a CAFA Loophole
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 »
More Bad News for Uber, This Time From the Southern District of California
Uber’s attempts to defeat a false advertising lawsuit recently failed. The Southern District of California largely denied the ride share company’s motion to dismiss and motion to strike class allegations. A taxi company claimed Uber violated the Lanham Act with allegedly false and misleading statements concerning passenger safety that compared Uber and traditional taxicab rides. The court narrowly granted the motion to dismiss regarding Uber’s claim that certain ... 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 »
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 »
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