Today, the Supreme Court granted review in what may be a major decision on the standards for class certification, Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146.
Continue Reading Supreme Court to Revisit Class-Certification Standards in Tyson Foods, Inc. v. Bouaphakeo
Supreme Court to decide whether an offer of judgment for full relief moots a named plaintiff’s class-action claims
Article III of the Constitution limits the jurisdiction of the federal courts to “cases” and “controversies.” The Supreme Court has held that “‘an actual controversy … be extant at all stages of review, not merely at the time the complaint is filed.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). Accordingly, “[i]f an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Genesis HealthCare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013). In Genesis, the Court recognized that one “intervening circumstance” may arise under Rule 68 of the Federal Rules of Civil Procedure, which permits a party to offer to allow judgment in favor of its adversary on specified terms. A party who rejects a Rule 68 offer, but obtains a judgment “not more favorable than the unaccepted offer,” must pay the costs accrued by the offering party between the offer and judgment. (We’ve previously blogged about Genesis.)
Today, the Court granted certiorari in Campbell-Ewald Company v. Gomez, No. 14-857, to determine whether a defendant’s unaccepted offer of judgment, made before a class is certified, that would fully satisfy the claim of a would-be class representative renders the plaintiff’s individual and class claims moot. The Court also granted certiorari to decide whether the derivative sovereign immunity doctrine recognized in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), applies only to claims for property damage caused by public works projects.Continue Reading Supreme Court to decide whether an offer of judgment for full relief moots a named plaintiff’s class-action claims
U.S. Supreme Court Agrees To Hear Spokeo, Inc. v. Robins And Decide Whether Plaintiffs Who Have Suffered No Concrete Harm Nonetheless Have Article III Standing To Sue In Federal Court
Under Article III of the U.S. Constitution, a plaintiff must allege that he or she has suffered an “injury-in-fact” to establish standing to sue in federal court. Today, the Supreme Court granted certiorari in Spokeo, Inc. v. Robins, No. 13-1339, to decide whether Congress may confer Article III standing by authorizing a private right of action based on a bare violation of a federal statute, even though the plaintiff has not suffered any concrete harm.
The Court’s resolution of this question in Spokeo could affect a number of different types of class actions that have been instituted in
Continue Reading U.S. Supreme Court Agrees To Hear Spokeo, Inc. v. Robins And Decide Whether Plaintiffs Who Have Suffered No Concrete Harm Nonetheless Have Article III Standing To Sue In Federal Court
Supreme Court Grants Certiorari To Address Interplay of Federal Arbitration Act And State-Law Savings Clause In Arbitration Agreement
As readers of this blog know, prior to the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the California Supreme Court (and a number of other state courts) had declared that waivers of class-wide arbitration were unenforceable as a matter of state law. But in Concepcion, the Supreme Court held that the Federal Arbitration Act (“FAA”) preempts state-law rules requiring the availability of class-wide arbitration.
How do the FAA and the Supremacy Clause of the U.S. Constitution affect the interpretation of arbitration clauses written prior to Concepcion? The Supreme Court may provide further guidance on that
Continue Reading Supreme Court Grants Certiorari To Address Interplay of Federal Arbitration Act And State-Law Savings Clause In Arbitration Agreement
Third Circuit Hears Oral Argument Over Whether FTC Has Authority To Regulate Data Security
After much anticipation, the Third Circuit heard oral arguments (audio) last Tuesday in the interlocutory appeal in FTC v. Wyndham Worldwide Corp. We have written previously about this case, which likely will be a significant one in the privacy and data-security field. At issue is whether Section 5 of the FTC Act authorizes the FTC to regulate data security at all, as well as what constitutes “unfairness” in the data-security context. The case may have a large impact on future FTC enforcement actions and major implications for class action litigation.
But after all the build up, the panel
Continue Reading Third Circuit Hears Oral Argument Over Whether FTC Has Authority To Regulate Data Security
U.S. Chamber of Commerce Files Amicus Brief on Ascertainability in Key Ninth Circuit Case
As readers of our blog know, ascertainability is one of the most contentious issues in class action litigation these days. Ascertainability is the main issue presented in Jones v. ConAgra Foods, No. 14-16327, a pending Ninth Circuit case in which the plaintiff and his amici have mounted a full-scale attack on whether the ascertainability requirement even exists. Along with our colleagues Andy Pincus and Dan Jones, we have filed an amicus brief (pdf) on behalf of the Chamber of Commerce of the United States arguing that ascertainability is a critical requirement for class certification, and that due process
Continue Reading U.S. Chamber of Commerce Files Amicus Brief on Ascertainability in Key Ninth Circuit Case
Congratulations to “Litigation Trailblazer and Pioneer” Evan Tager
In our first post of 2015, we wanted to congratulate our colleague and mentor, Evan Tager, for his recent recognition as a Litigation Trailblazer and Pioneer by the National Law Journal.
Evan has been at the forefront of major developments in the law—including those affecting class action and mass tort litigation. As this profile notes, Evan has been a leader on at least two major issues. First, he helped convince courts of the need for due process limitations on excessive punitive damages awards, ultimately prevailing in BMW of North America v. Gore. And second—working with us and others
Continue Reading Congratulations to “Litigation Trailblazer and Pioneer” Evan Tager
Supreme Court Holds That Defendants Need Not Submit Evidence with a Notice of Removal Under the Class Action Fairness Act
To remove a civil action from state court to federal court, the defendant must “file … a notice of removal … containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). Under the Class Action Fairness Act of 2005 (CAFA), federal courts have jurisdiction over certain class actions if, among other things, the amount in controversy exceeds $5 million. 28 U.S.C. § 1332(d)(2). Today, the Supreme Court held in Dart Cherokee Basin Operating Co. v. Owens (pdf), that a defendant’s notice of removal need only contain a “plausible allegation” that the amount in
Continue Reading Supreme Court Holds That Defendants Need Not Submit Evidence with a Notice of Removal Under the Class Action Fairness Act
Standing Without Injury? Washington Legal Foundation Webinar Addresses “No-Injury” Class Actions
The Supreme Court is currently considering a petition for certiorari in Spokeo Inc. v. Robins (pdf), which raises the question whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. This question of Article III standing potentially impacts a wide variety of lawsuits that we (and others) view as “no-injury” class actions.
In Spokeo (in which we represent the petitioner), the Supreme Court recently called for
Continue Reading Standing Without Injury? Washington Legal Foundation Webinar Addresses “No-Injury” Class Actions
En Banc Ninth Circuit Permits Removal Under CAFA of a Subdivided Mass Action
Over the past few years, a number of plaintiffs’ lawyers have attempted—with some success—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). Although these lawyers represent 100-plus clients with substantively identical claims, they subdivide their mass actions into multiple parallel cases, often with just under 100 plaintiffs each. And to avoid the “proposed to be tried jointly” language of CAFA, they remain coy about—or
Continue Reading En Banc Ninth Circuit Permits Removal Under CAFA of a Subdivided Mass Action