On August 31, the Ninth Circuit continued its trend of certifying “no injury” classes, this time in the context of an Agricultural Workers’ Protection Act claim that a Washington state fruit and vegetable farm violated the statute by hiring foreign workers to fill temporary agricultural jobs without informing domestic workers of the availability of the work. The district court certified an “inaccurate information” class and an “equal pay” class. The Ninth Circuit ... Keep Reading »
Disgruntled Timeshare Owner’s Bid for Class Arbitration Thwarted
On August 30, the Northern District of California thwarted a disgruntled timeshare owner’s attempt to arbitrate her dispute against a timeshare developer on a classwide basis. A timeshare purchaser alleged that Wyndham, the timeshare developer, improperly changed her “use year” and demanded an arbitration. Wyndham responded by filing a declaratory judgment action against the purchaser and also filed a motion to compel the purchaser to arbitrate her individual claims and ... Keep Reading »
Cy Pres Standard Dispute Settled With Reasonable Approximation
The District Court for the Southern District of New York recently addressed whether the “next best” or “reasonable approximation” standard should apply when the court evaluates proposed cy pres designations in class action settlements. Observing that the Second Circuit had not definitively resolved this issue to date, the district court engaged in a thorough evaluation of the origins, justifications, and policy implications of the two standards. In the end, the court ... Keep Reading »
Adding to Circuit Split, Divided Ninth Circuit Finds Concerted Action Waiver in Ernst & Young’s Employment Agreement Unenforceable Under NLRA
Ernst & Young’s (“E&Y”) employment agreements contained “separate proceedings” and arbitration provisions, which together required that disputes be resolved individually through arbitration, rather than collectively through some other forum. Despite entering such an agreement, an employee filed a class action against E&Y in federal court, alleging that he and other employees had been misclassified and denied overtime wages in violation of the Fair Labor ... Keep Reading »
Eighth Circuit Privacy Class Action Fails to Clear Second Hurdle
In Carlsen v. GameStop Inc., plaintiff – a paid subscriber to defendant’s online gaming magazine – brought a putative class action lawsuit against defendant for alleged breach of its privacy policy by disclosing plaintiff’s Facebook ID and his browsing information for the defendant’s online content to Facebook. Plaintiff asserted claims for breach of contract, unjust enrichment, money had and received, and violation of Minnesota’s Consumer Fraud Act. Defendant moved to ... Keep Reading »
No Repose for Debate on Applicability of American Pipe Tolling
In its seminal 1974 American Pipe opinion, the Supreme Court held that the commencement of a class action tolls the applicable statutes of limitation as to all putative class members who would have been parties had the class been certified. Since then, courts have repeatedly applied American Pipe to toll statutes of limitation but disagreed as to whether the doctrine is based on legal principals under Rule 23 or the equitable power of the courts. The Eleventh Circuit ... Keep Reading »
Seventh Circuit Strikes Again – Rejects Settlement In Shareholder Deal Litigation
In yet another strongly-worded opinion, the Seventh Circuit rejected the proposed settlement of a Walgreens’ shareholder strike suit in which the class obtained “worthless” supplemental disclosures but class counsel received generous fees. Judge Posner authored the opinion, as he did in Person v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014) and Eubank v. Pella Corp, 753 F.3d 718 (7th Cir. 2014). He described the practice of settling “deal litigation” like this that yields ... Keep Reading »
Third Circuit Rejects Inflated-Value Theory of Damages, Declines to Certify Law School Tuition Class
The Third Circuit recently affirmed the denial of class certification in a suit alleging that a law school made misrepresentations about the employment status of its graduates, thereby inducing students to pay inflated tuition in violation of the New Jersey and Delaware consumer fraud statutes. Much of the decision centered on damages; plaintiffs claimed they could show damages on a class-wide basis by estimating the amount by which tuition was inflated due to the ... Keep Reading »
Lawyers Sanctioned for Seeking to Settle Federal Court Class Action in State Court
Lawyers seeking to settle class actions pending in federal court by dismissing and refiling in state court beware! In two recent orders, a federal judge in the Western District of Arkansas ruled that the attorneys representing a class and defendants alike violated Rule 11 and abused the judicial process by this practice. The court sanctioned the lawyers for the class in the form of a reprimand. It retreated from a formal sanction of the defendants’ lawyers because it was ... Keep Reading »
“Placeholder” Motions to Certify are Unnecessary after Campbell-Ewald According to South Carolina District Court
Relying on the Supreme Court’s 2016 opinion in Campbell-Ewald, the United States District Court for the District of South Carolina ruled that a class action plaintiff need not file a “placeholder” motion to certify to avoid a defendant’s attempt to “pick-off” the plaintiff and moot the class with a Rule 68 Offer of Judgment (OJ). Plaintiff filed its putative class action complaint alleging violations of the Telephone Consumer Practices Act and immediately sought ... Keep Reading »
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