One of the hottest areas in class actions is litigation under the Telephone Consumer Protection Act (TCPA). And one of the most significant issues in TCPA litigation is the existence and scope of vicarious liability. The key question is to what extent are businesses liable for the actions of third-party marketers who, without the consent… Continue Reading
The ABA Journal is putting together its annual list of the 100 best legal blogs. There are many great legal blogs out there; if you think this is one of them, we’d be grateful if you would consider nominating us for the list. To put in a good word for us, please use this form… Continue Reading
Nine years after the Class Action Fairness Act of 2005 (“CAFA”) was enacted, parties continue to fight over when federal jurisdiction over significant class and mass actions is proper. In this post, we provide a rundown of some of the most important recent cases involving CAFA.
Can you have a class action if you can’t figure out who’s in the proposed class? According to many in the plaintiffs’ bar, the answer is “yes.” But as we have discussed in prior blog posts, there is an emerging consensus to the contrary. Most courts agree that plaintiffs in consumer class actions have the… Continue Reading
Until recently, many large companies have resigned themselves to the assertion of personal jurisdiction by courts in any state in which they do business—so long as the plaintiff has named the right corporate entity as defendant. That’s because the conventional wisdom has been that large companies are subject to personal jurisdiction nationwide because they do… Continue Reading
Over the years, the plaintiffs’ bar has used a wide variety of stratagems to try to prevent defendants from removing class actions to federal court. We’ve previously blogged about several of them. A recent Eleventh Circuit decision addresses yet another page from the plaintiffs’ playbook. Defendants often can remove significant class actions under the Class… Continue Reading
Plaintiffs routinely bring consumer class actions under statutes that allow only consumers—not businesses—to bring claims, or that are limited to transactions solely for personal or household purposes. See, e.g., Electronic Funds Transfer Act, 15 U.S.C. § 1693a(2); Real Estate Settlement Procedures Act, 12 U.S.C. § 2606(a)(1); California’s Consumer Legal Remedies Act, Cal. Civ. Code §… Continue Reading
Back in December, we blogged about two cases in the Ninth Circuit that were the latest skirmishes in the fight over whether plaintiffs can evade removal under the Class Action Fairness Act of 2005 (“CAFA”) by artificially subdividing their mass actions. Plaintiffs have sought to make an end-run around CAFA’s provision permitting removal of mass… Continue Reading
In recent years, one of the hottest types of collective actions against employers under the Fair Labor Standards Act (“FLSA”) is what is commonly called a “donning and doffing claim”—a lawsuit for unpaid wages for time employees spent changing clothes for work, such as putting on uniforms, safety gear, and the like. In a recent… Continue Reading
Just in time for the holidays, the Second Circuit’s recent decision in Bank v. Independence Energy Group LLC has dropped a lump of coal in the business community’s stocking. In this case, the “lump of coal” is an open door to class actions under the Telephone Consumer Protection Act in federal courts in New York…. Continue Reading
Former interns used to get revenge against their employers by writing tell-all blog posts and memoirs. Now, they’re lending their names to plaintiffs’ lawyers, who then file wage-and-hour class or collective actions alleging that interns must be paid like hourly employees. The unpaid internship is among the hottest areas in wage-and-hour litigation. Two of the… Continue Reading
One of the more alarming recent developments in the class-action arena is the increase in actions by state attorneys general that mirror private class actions. These state AG actions aren’t like the typical enforcement action, in which the government pursues claims for civil penalties that are distinct from the relief sought in the private class… Continue Reading
Following up on our recent coverage of Mississippi ex rel. Hood v. AU Optronics Corp., my colleague Archis Parasharami had the opportunity to discuss the subject with Colin O’Keefe of LXBN. In this brief video interview, Archis discusses some of the class action issues that the Supreme Court is confronting now or may confront in the… Continue Reading
We’ve blogged before about plaintiffs’ attempts to circumvent the “mass action” provisions in the Class Action Fairness Act of 2005 (“CAFA”), which allow defendants to remove to federal court certain cases raising “claims of 100 or more persons that are proposed to be tried jointly.” 28 U.S.C. § 1332(d)(11)(B)(i). To evade removal, creative plaintiffs’ lawyers… Continue Reading
For the second time in two weeks, the Supreme Court’s denial of certiorari in a class action case—this time, Martin v. Blessing—has garnered significant attention because of a separate statement by a Justice concerning the denial of review. In Martin, the petitioner challenged the policy of one federal judge in the Southern District of New… Continue Reading
It’s always worth a look when a federal judge steps down from Olympus the bench to act as an ordinary mortal litigant. Class action aficionados in particular should not miss Alison Frankel’s report for Reuters, discussing a remarkable objection by Chief Judge Kozinksi and his wife to approval of a class settlement in a case in which he happens to be a class member.
Last month, the FCC’s new rules under the Telephone Consumer Protection Act (TCPA) for consent telemarketing calls went into effect. (We’ve previously discussed those rules on this blog.) On Wednesday (November 13), I’ll be co-presenting a 90-minute CLE webinar about the new rules for Bloomberg BNA. For more information or to register, please visit Bloomberg… Continue Reading
The “ascertainability” requirement for class certification is a crucial safeguard for both defendants and absent class members. There is some debate about its origin: some courts have held that it is implicit in Rule 23 that class members must be readily identifiable; others find ascertainability to be rooted in Rule 23(a)(1)’s numerosity mandate or Rule… Continue Reading
We’ve previously written about the petition for interlocutory appeal in Chen v. Allstate Insurance Co., a TCPA class action that involves an important issue for class action practitioners: can a named plaintiff refuse an offer of judgment for full relief and continue pursuing a class action? The Ninth Circuit recently granted (pdf) the petition and can… Continue Reading
From a practitioner’s standpoint, one of my five least-favorite recent developments in federal class-action practice is the explosion in the number of premature motions for class certification that would-be class representatives file. I understand the motivation behind these motions—often filed along with the initial complaint. Of course, they are not seriously intended to induce a… Continue Reading
The Washington Post has published an interview with the now-confirmed commissioner of the Consumer Financial Protection Bureau, Richard Cordray. We’ve excerpted some key highlights; the full interview is well worth reading.
The spate of class actions under the Telephone Consumer Protection Act (TCPA) isn’t ending anytime soon. And the risks to businesses have just increased in the Third Circuit, thanks to that court’s recent ruling that the TCPA permits consumers to retract consent to receiving calls on their cell phones placed by automatic telephone dialing systems…. Continue Reading
Before the Supreme Court’s decision last Term in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the Ninth Circuit had held that a named plaintiff can continue to pursue a putative class action even after the defendant has extended that plaintiff an offer of judgment for the full individual relief sought in the… Continue Reading
The Telephone Consumer Protection Act (TCPA) is a favorite of the plaintiffs’ class-action bar because it provides for statutory damages of up to $1,500 for knowing or willful violations. With some exceptions, the TCPA prohibits, among other things, unsolicited marketing faxes as well as calls and text messages using autodialers or prerecorded voices. See, e.g.,… Continue Reading