The Ninth Circuit reversed an order striking class allegations against Microsoft reasoning that the Washington district court misapplied its precedent and thereby abused its discretion. Plaintiffs alleged that a design defect in Microsoft’s Xbox 360 video game console made it unable to withstand vibrations during normal game playing conditions and caused game discs to become scratched and unplayable. Microsoft countered that the majority of Xbox units do not manifest the ... Keep Reading »
Running on Empty: Defective Gas Class Sputters in Louisiana District Court
The Middle District of Louisiana denied certification of a putative class bringing claims for redhibition and unjust enrichment against Exxon Mobil Corporation ("Exxon"). Plaintiffs allegedly purchased gasoline refined at Exxon’s Baton Rouge terminal that Exxon conceded contained a resin accidentally introduced during the refining process. The parties disputed whether the resin fully combusted during normal engine operations or remained in the engine causing damage and ... Keep Reading »
Certification of Minor Class Could Have Major Impact on Facebook
Plaintiffs, two minors who used their parents' money to make purchases on Facebook without parental consent, brought a putative class action against the company, alleging its policy of representing purchases as non-refundable violates California law holding that contracts entered into by minors are void or voidable. Through their guardians, plaintiffs sought to certify a class of Facebook users who were minors during a four year period, along with a subclass of those who ... Keep Reading »
Circuit Courts Address Impact of Arbitration Agreements on Labor Class and Collective Actions
In Conners v. Gusano's Chicago Style Pizzeria, plaintiffs, former employees of defendant, brought a collective action alleging violations of the Fair Labor Standards Act. Defendant responded by implementing a binding arbitration policy on current employees that specifically prevented current employees from joining plaintiffs in the collective action. The district court enjoined defendant from enforcing the arbitration agreement as to any current employees who chose to ... Keep Reading »
Target Reaches Preliminary Settlement in Consumer Data Breach Class Action
Last week, a Minnesota federal district court granted a motion for preliminary approval of a settlement of putative consumer class action claims against Target in the wake of a data breach at the retailer over the 2013 holiday shopping season. The settlement will provide a fund of up to $10 million to be distributed through a claims process to class members who suffered identity theft as a result of the breach. The final approval hearing is set for November 10, ... Keep Reading »
Threat of Identity Theft is Not Enough: Another Data Breach Class Action Dismissed for Lack of Standing
Hewing to prior Third Circuit precedent in Reilly v. Ceridian and the Supreme Court's precedent in Clapper v. Amnesty International, the Middle District of Pennsylvania recently joined the majority of federal district courts in dismissing putative data breach class actions for lack of standing where the named plaintiffs fail to allege identity theft. Although standing is a requirement in any case, it is particularly relevant in the data breach context, where actual ... Keep Reading »
GCs facing more bet-the-company and higher exposure class actions
Across industries, companies spent $2 billion on class action lawsuits in 2014, slightly less than the $2.1 billion they spent in 2013. This year, spending is expected to return to 2013 levels. Companies’ class action dockets increased on average by one new case in 2014, bringing the average number of class actions managed to five. This total is expected to remain constant in 2015, as the number of new matters is likely to be offset by those resolved. As before, ... Keep Reading »
Question Certified To Second Circuit: Does The Court Or The Arbitrator Decide Whether An Arbitration Agreement Permits Class Arbitration?
In the Second Circuit, as in other jurisdictions, only exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment. A New York federal district court recently encountered such circumstances in connection with a motion to certify an interlocutory appeal of an order compelling arbitration. Plaintiffs filed a demand for class arbitration and defendants filed a competing motion to compel ... Keep Reading »
Second Circuit Vacates Class Certification Order, Applying Various State’s Laws Precludes Finding Of Predominance And Superiority
The Second Circuit vacated a class certification order issued by the Southern District of New York, finding that Rule 23(b)(3)'s predominance and superiority requirements could not be met given the necessity of applying 27 states' laws to putative class claims for breach of fiduciary duty, legal malpractice and breach of contract. The case involved a "novel approach to dispute resolution that continues to provoke a debate among experts in legal ethics." The plaintiffs ... Keep Reading »
Fifth Circuit Affirms Certification of Electronic Funds Transfer Act Class
In a case similar to its late-2014 decision in Mabary v. Home Town Bank, N.A., 771 F.3d 820 (5th Cir. 2014), the Fifth Circuit recently affirmed certification of a class of consumers who were charged a fee for using an automated teller machine (“ATM “) that allegedly lacked a fee notice on its exterior, in violation of the Electronic Funds Transfer Act (“EFTA”), 15 U.S.C. § 1693b(d)(3) (2011). See Frey v. First Nat. Bank Southwest, No. 13–10375, --- F. App’x ---, 2015 ... Keep Reading »
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