An Eleventh Circuit panel recently vacated two district court orders after sending the parties to mediation, and after the parties’ conditioned settlement on vacatur of the orders. In Hartford Casualty Insurance Company v. Crum & Forster Specialty Insurance Company, after being ordered to mediation a second time by the appellate panel, the parties reached a settlement contingent on the district court’s vacating its orders on summary judgment and attorney’s fees. On ... Keep Reading »
Tendering Funds to Support Unaccepted Offer of Judgment Still Does Not Moot Case
On July 6, the Sixth Circuit addressed a question apparently left open by the Supreme Court in its recent Campbell-Ewald case. In Campbell-Ewald, the Supreme Court ruled that an unaccepted Rule 68 offer of judgment did not moot class claims when no motion for class certification is pending. A plaintiff who rejects a rule 68 offer of tender extinguishes the offer. The court did not address, however, whether an actual tender of funds to a class plaintiff extinguished ... Keep Reading »
A Tale of Two Decertification Motions
The Seventh and Eighth Circuits both addressed motions to decertify classes the week of July 5—with divergent results. These cases illustrate the deference afforded district courts’ class certification determinations. Both courts refused to find the trial courts’ decertification decisions to constitute an abuse of discretion. They also illustrate the importance of a sensitivity to the requirements of the specific cause of action, which themselves may dictate whether a ... Keep Reading »
Declined: Second Circuit Panel Shreds Visa and MasterCard Antitrust Settlement
A Second Circuit panel rejected the settlement reached between defendants Visa, MasterCard, and various banks, and plaintiffs, approximately 12 million merchants who alleged the principally identical network rules of Visa and MasterCard were anti-competitive in contravention of Section 1 of the Sherman Act. The Second Circuit held that class plaintiffs were inadequately represented in violation of Rule 23(a)(4) and the Due Process Clause. After nearly 10 years of ... Keep Reading »
Court Orders Additional Notice to Class Regarding Counsel’s Request for Fees Based on Work Performed Following Initial Fee Award
The Northern District of Illinois vacated its grant of fees to class counsel for work performed following an initial fee award, finding that Rule 23(h) required notice to the class regarding counsel’s new fee request, even though the total attorneys’ fees awarded were within the range disclosed in the original class notice. As discussed in a prior post, the Seventh Circuit affirmed the initial award of fees to class counsel, notwithstanding that the settlement included a ... Keep Reading »
Another One Bites the Dust: Maryland Federal District Court Dismisses Putative Data Breach Class Action for Lack of Standing
The United States District Court of Maryland recently dismissed a putative class action alleging that CareFirst’s failure to adequately secure the computer hardware storing their customers’ personal information led to two separate data breaches in June 2014 and May 2015. Plaintiffs alleged that CareFirst knew or should have known that a data breach could have occurred because the information stolen is “highly coveted by and a frequent target of hackers.” Plaintiffs also ... Keep Reading »
Illinois District Court Holds CAFA and Diversity Both Provide Federal Jurisdiction Over Class Actions
The Southern District of Illinois recently confirmed that traditional diversity jurisdiction and jurisdiction under the Class Act Fairness Act (CAFA) provide two separate means of obtaining federal jurisdiction over class action lawsuits—though, in this case, defendants failed to satisfy either. Two plaintiffs brought a putative class action lawsuit in state court alleging that their employer failed to pay overtime wages. The defendant, an Indiana citizen, removed the ... Keep Reading »
…And We’re Back! Still No Resurgence of “Picking Off” After Campbell-Ewald
Following an interlocutory appeal, in which the First Circuit ruled that a Rule 68 offer made prior to class certification did not moot the plaintiff’s claim (see here), defendant returned to the Massachusetts district court seeking dismissal on Rule 68 grounds. Defendant had done its homework: relying on the Supreme Court’s January Campbell Ewald decision (see here), defendant had sent plaintiff a certified check for $4,800 and moved to deposit the same amount with the ... Keep Reading »
Southern District of California Rejects Coupon Class Settlement
Jaret J. Fuente and D. Matthew Allen The Southern District of California rejected a pre-certification class settlement because it provided for an inadequate coupon payment and a tenuous cy pres award, and included a clear sailing attorney fee provision. Plaintiff Hofman alleged that Dutch, LLC sells jeans labeled “Made in the USA” that contain foreign-made components (buttons, rivets, zippers, etc.) in violation of the California Business and Professional Code and the ... Keep Reading »
Supreme Court Steers Clear of Consumer Standing Issue in Spokeo
The Supreme Court has issued its long-awaited decision in Spokeo v. Robins. By a 6-2 vote, the Court reversed the Ninth Circuit decision that a class plaintiff who suffered no actual damages had standing to sue. But it did not address the merits of whether a plaintiff who has suffered no actual damages can nonetheless bring a class action on behalf of other putative class members who equally were not injured. Instead, the Court essentially punted and, in a narrow ... Keep Reading »
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