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: Motions Practice
Subscribe to Motions Practice RSS FeedFourth Circuit Nixes Requirement that All Defendants Physically Sign Notice of Removal To Federal Court
Posted in Motions PracticeThe Fourth Circuit recently weighed in on a technical question involving the process for removing a case against multiple defendants to federal court—namely, whether every defendant must actually sign the notice of removal. The Fourth Circuit concluded that “[w]e can see no policy reason why removal in a multiple-defendant case cannot be accomplished by the… 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
Upcoming Teleconference on E-Discovery in Class Actions
Posted in Motions PracticeOn May 2, at noon EST, my colleagues Anthony Diana (the co-chair of the firm’s E-Discovery and Records Management practice) and Therese Craparo (a counsel in that practice) and I will be presenting the first in a series of four teleconferences on e-discovery. This teleconference will focus on the unique challenges that class actions pose… Continue Reading
Nip A Class Action In The Bud By Moving To Strike the Class Allegations
Posted in Class Certification, Motions PracticeOne of the reasons that companies hate class actions is that, win or lose, the defense costs are often enormous. Usually, it’s discovery that leads to eye-popping numbers on the bills—whether from law firms themselves, contract attorneys, or e-discovery vendors. But defendants have an often overlooked tool for attempting to avoid costs related to discovery—the… Continue Reading
California Trial Court Rejects “Trial by Formula” Approach to False-Advertising Class Action and Sets Aside Verdict
Posted in Class Certification, Motions PracticeIn state courts, sometimes you lose even when you win. In a recent false-advertising class action, a California Superior Court entered an order concluding that the testimony of the plaintiffs’ expert—who was the linchpin of the case for class certification and on the merits—was inadmissible, which meant that the defendant was entitled to judgment as… 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
Securities Fraud Defendant Rebuts Fraud-on-the-Market Presumption of Reliance
Posted in Class Certification, Motions Practice, Predominance, SecuritiesWith all of the attention on last week’s Amgen decision, another interesting decision addressing the fraud-on-the-market presumption of reliance in securities fraud actions may have escaped notice. In GAMCO Investors, Inc. v. Vivendi, S.A. (S.D.N.Y. Feb. 28, 2013), Judge Scheindlin found that the defendant had rebutted the presumption of reliance as to a group of related… Continue Reading
Can Plaintiffs Evade The FDCPA’s Cap on Total Statutory Damages in a Class Action by Filing Multiple, Gerrymandered Class Actions?
Posted in Class Certification, Motions Practice, SuperiorityThe Fair Debt Collection Practices Act (FDCPA), which regulates the conduct of debt collectors, authorizes plaintiffs suing over violations to recover statutory damages of up to $1,000. Because these amounts can rapidly add up to exorbitant numbers in a class action for very minor, technical violations, Congress capped the total amount of statutory damages that… Continue Reading
Federal Court Grants Motion to Strike Class Allegations in TCPA Case
Posted in Ascertainability, Class Certification, Motions PracticeWe’re big fans of filing an early motion to strike class allegations when it’s apparent from the pleadings that the class definition is fatally flawed. Why should a defendant be forced to submit to the wringer of class discovery before taking a swing at defeating class certification? A recent case involving Office Depot illustrates the… Continue Reading
How Much Discovery From Opt-Ins in FLSA Collective Actions Should Businesses Seek?
Posted in Class Certification, Employment, Motions PracticeA recent federal court decision has addressed the knotty issue of a defendant’s right to discovery in an FLSA collective action from the individuals who opt into the class after it is conditionally certified but before the court decides whether to grant final certification. The case, Scott v. Bimbo Bakeries, USA, Inc. (pdf), No. 10-3154 (E.D…. Continue Reading
Class Action Plaintiffs Can’t Have It Both Ways When Opposing Motions to Compel Arbitration
Posted in Arbitration, Class Certification, Motions Practice, Numerosity, Predominance, TypicalityIn litigation—as in war—it is natural to focus on winning today’s skirmish and to defer planning for battles that might not happen for weeks or months. But that shortsightedness can lead to strategic blunders—as one class action plaintiff suing Capital One Bank and credit counseling agency InCharge Debt Solutions recently learned the hard way. In King… 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
District Court Confirms that Class Action Fairness Act Authorizes Removal when Request for Punitive Damages Causes Amount in Controversy to Exceed $5 Million
Posted in Motions PracticeThe first step in defending a class action filed in state court is to check whether it may be removed to federal court. To some, removal may seem hopeless if the plaintiff asserts only state-law claims and the amount of potential actual damages at stake appears to be well below the $5 million amount-in-controversy threshold… 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
Standard Fire Insurance Co. v. Knowles: Supreme Court To Decide Whether Plaintiffs May Evade Federal Jurisdiction Under CAFA By Stipulating That They Seek Less Than $5 Million In Damages
Posted in Motions Practice, U.S. Supreme CourtThe first question my colleagues and I ask when a client has been sued in a class action in state court is whether the case can be removed to federal court. Often, the only ticket out of state court is the Class Action Fairness Act of 2005 (“CAFA”), which authorizes removal of certain mass and… Continue Reading
NECA-IBEW: Second Circuit Rules That Plaintiffs Sometimes Have Standing to Bring Class Claims Covering Securities Offerings Other Than Ones in Which They Bought
Posted in Class Certification, Motions PracticeCan a plaintiff who bought a security in one offering bring a class action on behalf of purchasers in other offerings if the plaintiff alleges a misstatement common to all of the offerings? In cases under Sections 11 and 12 of the 1933 Securities Act—particularly those involving mortgage-backed securities—the consensus view had been that a… 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