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Tag Archives: Third Circuit

Wyndham Seeks Immediate Appeal Over Whether FTC Has Authority To Regulate Data Security

Posted in Class Action Trends

We have written previously about FTC v. Wyndham Worldwide Corp., currently pending in federal district court in New Jersey, and its potential significance for data security class actions. A recent opinion in that case has brought it back into the news—and made clear that the stakes are as high as ever. Over the FTC’s opposition,… Continue Reading

More Thoughts On Ascertainability And Why It Matters In Deciding Whether To Certify A Class Action

Posted in Ascertainability, Class Certification

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

Third Circuit Rejects Effort At End Run Around The Ascertainability Requirement

Posted in Ascertainability, Class Certification

We previously wrote about the Third Circuit’s decision in Carrera v. Bayer Corp., which reversed a district court’s class-certification order because there was no reliable way to ascertain class membership—indeed, no way to identify who was a member of the class aside from a class member’s own say-so. Last week, the full Third Circuit denied (pdf) the… Continue Reading

Class Action Can’t Be Remanded To State Court Just Because The Plaintiff Says It’s Uncertifiable

Posted in Motions Practice

When was the last time you saw a plaintiffs’ lawyer seeking to represent a class argue that the class couldn’t be certified? Readers might wonder whether this is a trick question. In a sense, it is. In Hoffman v. Nutraceutical Corp. (pdf), the Third Circuit upheld the denial of a motion to remand a class action… Continue Reading

Supreme Court Picks Up ERISA Stock-Drop Case: What’s Next?

Posted in Motions Practice, Securities, U.S. Supreme Court

In what circumstances should you be permitted to invest your retirement savings in your own employer’s stock? We have blogged before about an ERISA class action pending at the Supreme Court regarding when plan fiduciaries must prevent participants from investing in employer stock. After the Solicitor General filed an amicus brief (pdf) asking the Court… Continue Reading

Solicitor General to Supreme Court: Please Set The Rules For ERISA Stock-Drop Class Actions

Posted in U.S. Supreme Court

This past March, the Supreme Court asked the Solicitor General to weigh in as to whether two rather technical questions about ERISA stock-drop actions are worthy of the Court’s attention. See Fifth Third Bancorp v. Dudenhoeffer, No. 12-751. The Solicitor General filed his brief (pdf) yesterday. Sidestepping the technical questions, he asked the Court to intervene… Continue Reading

Third Circuit Rulings Give Teeth to Ascertainability Requirement for Class Certification

Posted in Ascertainability, Class Certification, Numerosity, Superiority

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

Third Circuit Rules that TCPA Authorizes Consumers To Retract Consent to Cell Phone Calls

Posted in Motions Practice

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

Will the Ninth Circuit Revisit the Issue of Whether an Offer of Judgment to the Named Plaintiff Can Moot a Class Action?

Posted in Motions Practice, U.S. Supreme Court

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

Can Plaintiffs Gerrymander Mass Actions to Avoid Federal Jurisdiction?

Posted in Motions Practice, Uncategorized

The Class Action Fairness Act of 2005 (“CAFA”) provides that defendants may remove certain mass actions—cases that are proposed to be tried jointly—so long as the aggregate amount at stake is at least $5 million and there are 100 or more plaintiffs in the case. 28 U.S.C. § 1332(d)(11). But what if plaintiffs’ counsel try… Continue Reading

US Chamber of Commerce Takes Up Recess Appointments Fight in Supreme Court

Posted in Employment, U.S. Supreme Court

We’ve blogged about the D.C. Circuit’s ruling in Noel Canning v. NLRB (pdf) that President Obama’s three 2012 recess appointments to the National Labor Relations Board are unconstitutional. The consequence of that decision was to invalidate the NLRB decision against Noel Canning for lack of a quorum of NLRB members. The decision also cast a dark… Continue Reading

Third Circuit Rejects South Carolinan’s Effort To Bring Nationwide False Advertising Class Under New Jersey Law

Posted in Class Action Trends, Motions Practice

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

Eighth Circuit Holds that a Plaintiff who Settles Individual Claims Lacks Standing to Challenge Denial of Class Certification

Posted in Appeals, Class Certification

Here’s a common scenario:  After unsuccessfully moving for class certification and having a petition for review under Federal Rule of Civil Procedure 23(f) rebuffed, the plaintiff wants to take another shot at an appeal.  Can the plaintiff simply settle his individual claims—subject to his right to appeal the denial of class certification—so that he has a… Continue Reading

Supreme Court Holds that Plaintiff Whose Individual Claims Were Mooted by an Offer of Judgment Lacks Standing to Maintain FLSA Collective Action

Posted in Employment, U.S. Supreme Court

The Fair Labor Standards Act of 1938 (“FLSA”) permits an employee to file a “collective action” for damages against an employer individually and on behalf of other “similarly situated” employees who later choose to join the lawsuit. 29 U.S.C. § 216(b). In Genesis Healthcare Corp. v. Symczyk, before any other employee had opted to join… Continue Reading

Third Circuit Rejects Class Settlement Because Class Fund Went to Class Counsel and Cy Pres Rather than Class Members

Posted in Class Action Settlements

We’ve blogged before about federal courts’ increasing reluctance to approve class settlements that involve a significant cy pres component. The Third Circuit’s recent decision in In re Baby Products Litigation (pdf) is the latest example of this trend. Class counsel often use the distribution of funds to handpicked charities in order to disguise the percentage of… Continue Reading