The Ninth Circuit’s decision last year in Mazza v. American Honda Motor Co. [666 F.3d 581] (a case I argued) made it more difficult to sustain a nationwide class action under California consumer protection laws. Applying California “governmental interest” choice-of-law principles, the Mazza court held that the jurisdiction having the greatest interest in supplying the… Continue Reading
Category Archives: Class Action Trends
Subscribe to Class Action Trends RSS FeedIn-House Counsel Predictions of Class Action Trends
Posted in Class Action TrendsCarlton Fields recently published a survey (pdf) of 368 general counsel and other in-house counsel at major companies across more than 25 industries regarding the class actions they faced in 2012 and their expectations for 2013. A number of the findings were quite interesting: In-house counsel reported that their companies spent $2.1 billion on class… Continue Reading
Do Plaintiffs Have Standing To Sue Over Alleged Reduction In The Value Of Their Personal Data?
Posted in Class Action Trends, Motions PracticeA key question in many privacy class actions is whether the plaintiff has suffered an injury sufficient to confer Article III standing. Quite a number of these actions have been dismissed for lack of standing. The plaintiffs’ bar therefore has been brainstorming new theories of injury in the hope that one of them will be… Continue Reading
Article on Alien Tort Statute after Kiobel
Posted in Class Action Trends, U.S. Supreme CourtWe’ve previously discussed the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. The American Lawyer Litigation Daily has just published a column by my colleague, Andy Pincus, responding to another columnist’s lament that Kiobel has rendered claims under the Alien Tort Statute “a zombie doctrine—not quite alive and not quite dead.” Andy provides a… Continue Reading
Supreme Court Holds That Alien Tort Statute Doesn’t Apply Extraterritorially
Posted in Class Action Trends, U.S. Supreme CourtToday, the Supreme Court issued its long-awaited decision in Kiobel v. Royal Dutch Petroleum (pdf) on the scope of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, a law that creates federal jurisdiction for civil actions brought by aliens for torts committed in violation of the law of nations or a U.S. treaty. In Kiobel,… Continue Reading
Will Your Class Action Go Viral?
Posted in Class Action Settlements, Class Action TrendsSocial media can be a game-changer for class actions. I was recently reminded of this when reading news coverage of a proposed class settlement of claims involving chicken that a fast food restaurant allegedly had improperly described as halal. A Michigan lawyer, who wasn’t involved in the case, had taken to Facebook to complain that… Continue Reading
Do the Plaintiffs Lack Standing or Are Their Claims Simply Meritless—or Both?
Posted in Adequacy, Class Action Trends, Class Certification, Commonality, Predominance, TypicalityHere’s the situation: You’re facing a class action in federal court in which the plaintiffs define the putative class so broadly as to encompass many people who weren’t injured by the alleged wrongdoing. For example, consider a false-advertising class action on behalf of “all purchasers” of a product that the vast majority of purchasers would… Continue Reading
How Can Class Action Defendants Control E-Discovery Costs?
Posted in Class Action Trends, Motions PracticeMy colleague Anthony Diana publishes monthly tips for businesses seeking to navigate the shoals of modern document-preservation and e-discovery practice. Readers of the blog might be particular interested in the column on strategies for businesses that have been targeted by class actions. Past tips that might be of particular interest to class-action defendants include: Reducing… Continue Reading
Plaintiffs Seek to Revive Securities Fraud Class Actions Under Second Circuit’s “Class Standing” Doctrine
Posted in Class Action Trends, SecuritiesI previously blogged about the Second Circuit’s troubling decision in NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co. (pdf), 693 F.3d 145 (2d Cir. 2012), which invented a “class standing” doctrine allowing a named plaintiff in a class action to assert Securities Act claims regarding securities that he or she never purchased. In the… Continue Reading
Cornerstone and Stanford Law School Issue Report On Securities Class Actions
Posted in Class Action Trends, SecuritiesAccording to a recent report authored by Cornerstone Research and the Stanford Law School Securities Class Action Clearinghouse, Securities Class Action Filings—2012 Year in Review (pdf), 19 percent fewer securities fraud class actions were filed in federal court in 2012 than in 2011. The 152 new class actions filed in 2012 is the second-lowest such number… Continue Reading
Are Quasi-Class Action Suits By State AGs Removable Under CAFA (Or, For Securities Fraud Cases, Barred By SLUSA)?
Posted in Antitrust, Class Action Trends, SecuritiesA number of courts recently have weighed in on a question we’ve blogged before—whether lawsuits by state attorneys general seeking restitution on behalf of private citizens are subject to removal under the Class Action Fairness Act of 2005 (pdf) (“CAFA”). These rulings have broad implications for the litigation of these quasi-class actions. They also are of… Continue Reading
Privacy and Mobile Apps: The California AG Speaks Out
Posted in Class Action TrendsIn recent months, we have seen growing interest in potential privacy issues in the context of mobile applications. Earlier this month, California Attorney General Kamala D. Harris released an official report—“Privacy On the Go: Recommendations for the Mobile Ecosystem”—with new privacy recommendations for the mobile industry. The report, while providing a “template” for best practices,… Continue Reading
What’s Next for the Class Action Plaintiffs’ Bar? Getting Deputized by State Attorneys General
Posted in Class Action TrendsSome academics and commentators have been reading the tea leaves in Wal-Mart Stores, Inc. v. Dukes (pdf) and AT&T Mobility LLC v. Concepcion (pdf) as spelling doom for consumer and employment class actions. That’s overwrought; Dukes rejected an extremely adventuresome application of the class action rules by the Ninth Circuit, and Concepcion merely reminded courts… Continue Reading
Opposing Class Actions On Constitutional Grounds
Posted in Class Action TrendsMost defendants are familiar with Rule 23 or its state-law equivalents, and there’s no question that a tried-and-true method of opposing class certification is to attempt to show that the plaintiffs have failed to meet their burden of satisfying Rule 23’s requirements. But defendants should not be afraid to invoke the U.S. Constitution itself to… Continue Reading
FCC Requests Comments on Whether TCPA Applies to Internet-to-Text-Message Services
Posted in Class Action TrendsLast week, the FCC requested comments on four petitions for declaratory rulings relating to the Telephone Consumer Protection Act (“TCPA”), the law that launched a thousand class-action lawsuits (or at least seems that way). One petition (pdf), by Revolution Messaging, LLC, asks the FCC to classify text messages sent via the Internet as subject to the… Continue Reading
Ninth Circuit Hands Two Losses to TCPA Class Action Defendants
Posted in Class Action Trends, Motions PracticeOctober has been a good month to be a plaintiff in a class action under the Telephone Consumer Protection Act (“TCPA”) in the Ninth Circuit. Twice this month, that court has issued pro-plaintiff rulings, upholding a preliminary injunction against one defendant and reversing a district court’s grant of summary judgment to another defendant. See Meyer… Continue Reading
Do Class Counsel Owe Fiduciary Duties to Absent Class Members Before Class Certification (and Should Defendants Care)?
Posted in Adequacy, Class Action Trends, Class CertificationAccording to an interesting student note that will soon be published in the Stanford Law Review, the answer to both questions is “yes.” Specifically, the would-be class counsel must “protect[] the substantive legal rights of putative class members . . . from prejudice” “resulting from the actions of class counsel.” The implications for defendants opposing… Continue Reading
Should State Attorneys General Be Able To Deputize Plaintiffs’ Lawyers On A Contingent-Fee Basis?
Posted in Class Action TrendsFor a variety of reasons, there are situations when plaintiffs’ lawyers are unable to pursue private class actions on their own. As a result, some plaintiffs’ lawyers have come up with a substitute business model: Convince state attorneys general to hire them on a contingent-fee basis to bring claims on behalf of a state—either in… Continue Reading
What Are Courts Doing With Fee Requests Made in Connection with Class Settlements?
Posted in Class Action Settlements, Class Action TrendsIn recent years, courts generally have cast a more skeptical eye on fee requests made by plaintiffs’ counsel who have negotiated a class action settlement. In the past, courts often rubberstamped outlandish fee requests. In fact, settlements awarding class counsel “excessive attorneys’ fees with little or no recovery for the class members themselves” were the… Continue Reading
Federal Government Acknowledges Undue Risk of Potentially Massive Liability from Class Actions for Statutory Damages Under the Federal Credit Reporting Act, but Proposes a Solution Good for One Defendant Only
Posted in Class Action Trends, Class Certification, Motions Practice, Superiority, U.S. Supreme CourtTomorrow, the Supreme Court will hear argument in United States v. Bormes, a case that apparently has not captured the attention of most class action practitioners. That’s understandable: The question presented (pdf) is “whether the Little Tucker Act, 28 U.S.C. § 1346(a)(2), waives the sovereign immunity of the United States with respect to damages actions for violations… Continue Reading
Class Action Bar Targets Food Companies for False Advertising Lawsuits, Using Magnuson-Moss Warranty Act to Try to Evade Ninth Circuit’s Mazza Decision
Posted in Class Action Trends, Motions PracticeThe plaintiffs’ bar often uses adventuresome choice-of-law arguments to attempt to grease the skids towards certification of nationwide classes. Earlier this year, in a blockbuster decision, the Ninth Circuit rejected one of plaintiffs’ key arguments in Mazza v. American Honda Motor Co. (pdf), 666 F.3d 581 (9th Cir. 2012). In that case, the plaintiffs had… Continue Reading
Class Action Attacking Product Defect Declared Moot When Company Voluntarily Recalled Challenged Product
Posted in Adequacy, Class Action Trends, Class Certification, Motions Practice, SuperiorityShould a class action go forward when the company voluntarily has provided all the relief plaintiffs have sought? At least in some circumstances, the answer is “no,” according to the Tenth Circuit. Here’s some background. Many product manufacturers—and especially auto makers—are targeted by the class action bar when they announce voluntary recalls. The lawsuits typically… Continue Reading
California Federal District Court Dismisses “Gotcha” TCPA Class Action Challenging Responses To “STOP” Text Messages
Posted in Class Action Trends, Motions PracticeThe plaintiffs’ bar loves the Telephone Consumer Protection Act (“TCPA”)—which prohibits certain unsolicited phone calls and text messages—because it provides for statutory damages of up to $1,500 per violation and thus is a great vehicle for shakedown class actions against businesses. One recent wave of questionable TCPA class actions asserts that messages sent to confirm… Continue Reading