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 »
CFPB Says Arbitration Agreements Limit Consumer Relief in Class Actions; New Regulations on the Horizon?
The Supreme Court's 2011 decision in AT&T Mobility LLC v. Concepcion upheld an arbitration clause requiring arbitration of claims individually, thereby effectively preventing class actions. While the consumer finance industry and other industries frequently invoked arbitration clauses in defending lawsuits before AT&T, since that decision was published, industry has increasingly relied on such clauses to successfully defend against expensive class ... Keep Reading »
Sweet Ending for Plaintiffs in Food Labeling Class Action Against Ghirardelli
A California district court certified a Rule 23(b)(3) food labeling class action against chocolatier Ghirardelli and approved a proposed settlement. The genesis of plaintiffs' claim is that defendant mislabeled its "White Chips" and other products in a way that would mislead consumers into believing that the products contained white chocolate. Plaintiffs also asserted a claim that the "all natural" label was improper because the products contained "genetically modified, ... Keep Reading »
Illinois District Court Denies Certification of Class in TCPA Claim for Lack of Typicality, Adequacy, Numerosity and Ascertainability
The Northern District of Illinois denied certification of a class in a claim brought pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Sec. 227. Plaintiff alleged that defendant violated the TCPA by sending it unsolicited faxes promoting defendant's catering services. In discovery, plaintiff obtained a fax log demonstrating that Defendant sent 3,000 faxes to 106 unique fax numbers. Plaintiff also obtained a template fax that defendant allegedly used ... Keep Reading »
District Court for the District of Columbia Finds CAFA Jurisdiction Exists; Denies Remand For Lack of Local Controversy
The U.S. District Court for the District of Columbia denied a motion to remand an action removed pursuant to the Class Action Fairness Act (CAFA), where the plaintiff failed to show CAFA’s local controversy exception applied. Plaintiff sued a Washington, D.C. health club and several others for allegedly fraudulently taking out lines of credit against customers and billing against them without the customers’ knowledge or consent. The Plaintiff conceded minimal ... Keep Reading »
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