Last Friday, the Supreme Court reversed the class-wide judgment in TransUnion LLC v. Ramirez (pdf), concluding that the lower courts had not properly applied the Court’s holding in Spokeo Inc. v. Robins and that the vast majority of the class members failed to satisfy the injury-in-fact requirement for Article III standing. (Our firm, including the
Archis A. Parasharami, a litigation partner in Mayer Brown's Washington DC office, is a co-chair of the firm's Consumer Litigation & Class Actions practice, recently named by Law360 as one of the top five class action groups of the year. He also is a member of the firm's Supreme Court & Appellate practice.
Archis routinely defends businesses in class action litigation in federal and state courts around the country. He brings substantial experience to all aspects of complex litigation and class actions, with a particular focus on strategy issues, multidistrict litigation, and critical motions seeking the dismissal of class actions or opposing class certification. He also has helped businesses achieve settlements on highly favorable terms in significant class actions. Archis frequently speaks on developments in the class action arena, and has been quoted on a number of occasions in the National Law Journal, Corporate Counsel, and the Wall Street Journal Law Blog.
Ever since the Supreme Court granted review in Facebook, Inc. v. Duguid, businesses facing the risk of TCPA class actions have been waiting to see whether the Court would accept or reject a sweepingly broad interpretation—adopted by three circuits and rejected by three others—of what constitutes an autodialer under the statute.
Today, the Supreme…
Yesterday, the Supreme Court heard oral argument (pdf) (audio) in TransUnion, LLC v. Ramirez, a Fair Credit Reporting Act case in which a federal court entered a class-wide judgment awarding statutory damages for two practices that TransUnion ended years ago.
The case boils down to two issues:
- Can “risk” of harm confer
In a very big deal for TCPA class actions, the Supreme Court granted review today in Facebook, Inc. v. Duguid. The petition (pdf) raises the most significant issue in litigation under the Telephone Consumer Protection Act (TCPA): what kind of equipment constitutes an “automatic telephone dialing system” (ADTS) triggering the TCPA’s restrictions on calls…
Earlier this week, the Supreme Court issued its long-awaited decision in Barr v. American Association of Political Consultants, a First Amendment challenge to the Telephone Consumer Protection Act (TCPA). The bottom line: The TCPA as we know it lives on (at least for now).
The plaintiffs who challenged the statute contended that because the TCPA’s bar on unsolicited autodialed calls or texts contained an exception for communications aimed at collecting U.S. government debt, that differing treatment amounted to is an impermissible content-based restriction on speech. The Court splintered on two issues: (1) whether this exception was a First Amendment violation, and (2) if so, what’s the remedy? A group of six Justices concluded that the TCPA contravened the First Amendment, and a differently composed group of seven Justices agreed that the proper remedy was to sever the government-debt exception rather than invalidate the autodialing restriction across the board.
One of the most hotly-contested issues in litigation under the Telephone Consumer Protection Act (TCPA) is what equipment counts as an “automatic telephone dialing system” (ATDS) triggering the TCPA’s restrictions. In 2018, the D.C. Circuit threw out the FCC’s interpretation of the statutory definition of an ATDS—which was so broad as to encompass smartphones—as arbitrary and capricious. (See our report on the D.C. Circuit’s ACA International v. FCC decision.) In the wake of that decision—while parties await the FCC’s new rule—courts around the country have been weighing in how best to interpret the statutory text.
The issue is now the subject of a deep circuit split. In recent months, both the Seventh Circuit in Gadelhak v. AT&T Services, Inc. and the Eleventh Circuit in Glasser v. Hilton Grand Vacations Co. (pdf) have concluded that equipment that dials from a pre-selected list of phone numbers does not qualify as an ATDS. (Disclosure: Mayer Brown represented AT&T in Gadelhak; Archis was on the briefs in the Seventh Circuit.) The Seventh and Eleventh Circuits thus rejected the Ninth Circuit’s more expansive interpretation of ATDS in Marks v. Crunch San Diego, LLC. (See our report on Marks.) The Second Circuit, in contrast, recently followed the Marks interpretation in Duran v. La Boom Disco.
In light of this growing divide, lawyers on both sides of the “v.” are waiting for the Supreme Court to step in.
The Supreme Court has resolved many important questions about personal jurisdiction. But somewhat surprisingly, it has not decided a fundamental question that arises in class actions – to establish specific personal jurisdiction (meaning case-linked personal jurisdiction) over a defendant, must the plaintiff establish that the defendant has sufficient connections to the forum with respect to…
Class action defendants usually prefer to have their cases heard in federal court, where the protections of Federal Rule of Civil Procedure 23 apply and where courts and juries are less likely to disfavor an out-of-state business. And as every class action defense lawyer knows, the Class Action Fairness Act of 2005 (“CAFA”) puts a significant thumb on the scale in favor of having large class actions heard in federal court, allowing for removal of most class actions in which the amount in controversy exceeds $5 million and there is minimal diversity of citizenship between the defendants and the members of the putative class. But how should CAFA apply when one business sues a consumer and the consumer files as a counterclaim a class action against a different business? Today, the Supreme Court heard oral arguments in Home Depot U.S.A., Inc. v. Jackson, a case presenting that question. (One of us attended the oral argument.)
Continue Reading Supreme Court hears oral argument in case involving removal of counterclaim class actions
Plaintiffs frequently seek to certify class actions where the proposed classes contain a significant number of uninjured persons. The First Circuit recently reversed the certification of such a class in In re Asacol Antitrust Litigation, concluding that a class cannot be certified where the “individual inquiries” necessary to resolve whether each class member has suffered an injury-in-fact “overwhelm common issues.” When such inquiries are needed to ensure that a defendant’s due process and jury trial rights are honored, a plaintiff cannot satisfy Rule 23(b)(3)’s predominance requirement. The court also rejected the plaintiff’s proposal to outsource these individualized inquiries to claims administrators.
We discuss the opinion in detail after the jump, but here are key takeaways for busy readers:
- The decision explains why a proposed damages class likely fails the predominance test—and therefore cannot be certified—if there are more than a negligible number of uninjured class members and there is no administratively feasible way to weed out those uninjured class members without individualized inquiries.
- The use of affidavits by class members to establish injury (or any other element of their claim) does not suffice to avoid individualized inquiries so long as the defendant plans to contest those affidavits, because a class cannot be certified on the premise that a defendant will not be entitled to challenge a class member’s ability to prove the elements of his or her claim.
- Policy justifications for consumer class actions cannot relax the requirements of Rule 23 or defendants’ due process and jury trial rights.
The key question in many Telephone Consumer Protection Act lawsuits is whether the equipment used to call the plaintiff constitutes an autodialer—that is, an “automatic telephone dialing system” or ATDS—within the meaning of the statute. TCPA practitioners have been awaiting the FCC’s guidance regarding the definition of an autodialer. Last spring, the D.C. Circuit set aside the FCC’s expansive definition of that term as arbitrary and capricious. (See our report on the D.C. Circuit’s ruling in ACA International.) Since then, the FCC has been working on its new definition.
The Ninth Circuit apparently couldn’t wait. In Marks v. Crunch San Diego, LLC (pdf), a Ninth Circuit panel held that an ATDS is any “device that stores telephone numbers to be called,” “whether or not the numbers were not generated by a random or sequential number generator.”