330px-Supreme_Court_Front_DuskThe Supreme Court will decide before the end of this Term whether to hear any or all of four important cases that raise recurring questions of class action law that have sharply divided the lower courts. These cases address questions that we have blogged about before (e.g., here and here): whether a class full of uninjured members may be certified, and whether plaintiffs may rely on experts and statistics to gloss over individualized differences among class members in order to prove their class claims and damages. These questions strike at the heart of what it means to be a “class,” because class actions generally must be litigated using common evidence to show that each class member has been harmed.
Continue Reading Supreme Court To Decide Whether To Hear Four High-Stakes Cases Asking When A Suit May Be Litigated As A Class Action

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 a lot of business in every state.

The Supreme Court recently has provided reason to revisit that assumption, however. Two recent decisions by the Court place significantly tighter limitations on the assertion of personal jurisdiction, equipping businesses with new defenses against forum-shopping by plaintiffs’ class-action lawyers.Continue Reading Are You Objecting to Personal Jurisdiction In Magnet Jurisdictions Yet?

At its conference on January 10, the Supreme Court can get serious about fixing consumer class actions. The Justices should take up that challenge, because it will consider two certiorari petitions that seek review of class certifications—involving alleged “moldy odors” in high-tech front loading washing machines—that are prime examples of what has gone wrong with the lower federal courts’ application of Rule 23. We’re somewhat biased: along with our partner Steve Shapiro and our co-counsel at Wheeler Trigg, we represent the petitioners in Whirlpool Corporation v. Glazer, No. 13-431, and Sears, Roebuck & Co. v. Butler, No.
Continue Reading Two Washer Cases Provide the Supreme Court with Its Best Opportunity Since Wal-Mart v. Dukes to Make Sense of Class-Certification Standards

Today, Mayer Brown filed a pair of certiorari petitions that challenge efforts by two federal appellate courts to narrow the Supreme Court’s recent class-action decisions in Comcast Corp. v. Behrend and Wal-Mart Stores, Inc. v. Dukes to tickets good for a single ride only. The Supreme Court previously remanded both cases for reconsideration after Comcast, but both courts of appeals reinstated their decisions. The certiorari petitions explain why those decisions are wrong: both putative class actions are beset by individual liability and damages questions and are filled with uninjured class members.

In one case, Sears, Roebuck and Co. v.
Continue Reading Mayer Brown Files Cert Petitions In Front-Loading Washer Cases

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 rule of decision was the one in which a consumer received misleading communications, made her purchase, and sustained any injury—not the location of the company headquarters from which the communications “emanated.”

In Maniscalco v. Brother International (USA) Corp., the Third Circuit reached a similar
Continue Reading Third Circuit Rejects South Carolinan’s Effort To Bring Nationwide False Advertising Class Under New Jersey Law

The answer is a resounding “no,” says Judge Cormac Carney of the Central District of California in a recent significant decision in litigation over the third generation Toyota Prius and 2010 Lexus HS250h vehicles (In re Toyota Motor Corp. Hybrid Brake Mktg., Sales Practices & Prods. Liab. Litig. (pdf), No. SAML 10-2172-CJC (C.D. Cal. Jan. 9, 2013).

Judge Carney is presiding over a multidistrict litigation (consolidating five class actions) against Toyota, in which the plaintiffs allege that a defect in the Prius’s anti-lock brake system (“ABS”) causes increased stopping time and distance when a driver hits the brakes.

The
Continue Reading Can a Product-Liability Class that Is Full of Uninjured Members Be Certified?

Plaintiffs who wish to bring product-liability and consumer-fraud class actions against businesses often overreach when defining the proposed class in order to raise the stakes—and hence the settlement pressure—on the defendant.  A recent unpublished decision by the Eleventh Circuit, Walewski v. Zenimax Media, Inc. (pdf), No. 12-11843, is yet another example of the growing consensus rejecting these overly broad putative classes.

In Walewski, a Florida purchaser of a fantasy video game (Elder Scrolls IV: Oblivion) alleged that after he had played the game for 450 hours, a software defect prevented him from “cast[ing] spells,” “open[ing] doors and

Continue Reading Expelliarmus! Eleventh Circuit Disarms False-Advertising Class Action Against Makers of Fantasy Video Game

The Wall Street Journal recently published an editorial urging the Supreme Court to grant the petition for certiorari (pdf) in Whirlpool Corp. v. Glazer—a petition filed by my colleagues Stephen Shapiro, Jeffrey Sarles, and Tim Bishop. The petition seeks review of a decision by the Sixth Circuit (pdf), which affirmed the certification of a class of Ohio purchasers of front-loading Whirlpool washing machines that allegedly are defective because a small fraction may emit moldy odors due to laundry residue. (The action is a bellwether case; many identical class actions have been filed across the country against
Continue Reading Wall Street Journal Editorial Calls for Supreme Court Review in Whirlpool Corp. v. Glazer

Should 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 allege (among other things) that the manufacturer had fraudulently concealed the defect, and seek an injunction ordering the manufacturer to repair the defect.  In other words, these suits seek precisely the same relief that the manufacturer is already providing.  Sometimes the plaintiffs tack on requests
Continue Reading Class Action Attacking Product Defect Declared Moot When Company Voluntarily Recalled Challenged Product