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 »
What are Interim Class Counsel and When Should They be Appointed?
Even before certification of a class under Rule 23(a)-(b), the district court has authority to appoint “interim counsel” under Rule 23(g)(3) “to act on behalf of a putative class before determining whether to certify the action as a class action.” However, as the District of New Jersey recently explained, “neither the federal rules nor the Advisory Committee Notes expressly” state the analysis used to determine when “interim counsel” should be appointed and which counsel ... 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 »
Magistrate Judge Had Authority To Enter Final Judgment Without Consent Of Absent Class Members But Abused Discretion In Approving Settlement
The Ninth Circuit held that a magistrate judge was not required to obtain the consent of absent class members to approve a settlement in a Fair Debt Collection Practices Act (FDCPA) case and to enter a final judgment after certifying a nationwide injunction class. In so ruling, the court joined the Third, Seventh and Eleventh Circuits. The court also held, however, that the magistrate judge abused her discretion in approving the settlement because the injunction was ... Keep Reading »
Judge Gorsuch on Class Actions
On January 31, President Trump announced that Judge Neil Gorsuch of the Tenth Circuit Court of Appeals would be nominated for the United States Supreme Court. We took a look at those opinions authored by Judge Gorsuch on the Tenth Circuit that primarily addressed class action issues. These decisions confront a range of problems that arise in class action litigation. They also reveal his accessible, sometimes breezy, sometimes pointed, writing style. Four such decisions ... Keep Reading »
Ohio Court Compels Plaintiffs to Respond to Interrogatories Regarding the “Contours” of the Putative Class
In a reversal of the usual scenario where a plaintiff seeks and a defendant resists class discovery, the Southern District of Ohio granted a defendant’s motion to compel answers to its interrogatory regarding who was included in the putative class. The named plaintiffs filed a putative class action based on a credit union’s alleged violations of the Real Estate Settlement Procedures Act. The credit union served interrogatories on the named plaintiffs concerning class ... Keep Reading »
Circuit Court Gives Red Light to TruGreen’s Motion to Compel Arbitration
The Sixth Circuit recently reversed a decision by the District Court for the Western District of Tennessee ordering arbitration in a putative class action lawsuit. Plaintiff brought a lawsuit against her lawn care services provider for alleged violations of the Telephone Consumer Protection Act when she received telemarketing calls from the company after terminating the parties’ contract and registering her number with the National Do-Not-Call Registry. She also sought ... Keep Reading »
No, Yes, or Back to State Court? Three Circuits Address Standing in Statutory “No Injury” Class Actions
In Spokeo, the Supreme Court declined to answer the certified question of whether a plaintiff suing for violation of a federal statute satisfied Article III’s standing requirement by alleging no concrete injury as a result of that violation. Instead, the Court vacated and remanded the case to the Ninth Circuit to address whether the plaintiff satisfied the “concreteness” requirement for Article III standing. On January 20, the Seventh and Third Circuits weighed in ... 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 »
SCOTUS to Determine Enforceability of Class Action Waivers in Employment Contract Arbitration Clauses
Today the United States Supreme Court granted and consolidated three petitions for certiorari related to the validity of class action waiver clauses in employer/employee arbitration agreements. The Court has consolidated the petitions in Epic Systems Corp. v. Lewis (No. 16-285), Ernst & Young v. Morris (No. 16-300), and NLRB v. Murphy Oil USA, Inc. (No. 16-307). Classified previously blogged about the Ninth Circuit’s decision finding Ernst & Young’s class ... Keep Reading »
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