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Win or lose, class actions that make it past the pleadings threaten businesses with enormous defense costs, especially the costs associated with class-wide discovery. As we’ve discussed before on this blog, one powerful tool for defendants to avoid these costs is to file an early motion to strike class allegations, taking a shot at nipping the class action in the bud when it is apparent from the pleadings that a class cannot be certified.

We were therefore pleased to see the Fifth Circuit recently join the growing ranks of courts that have endorsed pre-discovery motions to strike class allegations. In Elson v. Black, 56 F.4th 1002 (5th Cir. 2023), the court affirmed the district court’s order striking plaintiffs’ class allegations in their entirety. (The court also affirmed in large part the dismissal of the individual plaintiffs’ claims.)        …

Continue Reading Fifth Circuit affirms striking class allegations at the pleadings stage

Earlier this week, a Ninth Circuit panel sided with a coalition of business groups to affirm a preliminary injunction that stopped California state officials from enforcing California’s AB 51, a 2019 law that would have effectively prevented the formation of employment arbitration agreements in California. (Mayer Brown lawyers filed the lawsuit on behalf of the U.S. Chamber of Commerce and the California Chamber of Commerce and led briefing and argument in the Ninth Circuit.) This decision eliminates the considerable uncertainty about the use of arbitration to resolve employment disputes that had been caused by the enactment of AB 51 and…

Continue Reading Ninth Circuit Upholds Injunction Blocking a California Law That Would Have Severely Limited Employment Arbitration Agreements

Motions to dismiss federal-court actions based on a lack of Article III standing are succeeding more frequently—thanks to the Supreme Court’s 2021 decision in TransUnion LLC v. Ramirez.  That ruling reaffirmed and clarified that every plaintiff must plausibly allege a “concrete injury” that is “‘real,’ and not ‘abstract,’” even when the plaintiff claims a violation of federal statutory rights.

This past June, the U.S. Chamber of Commerce’s Institute for Legal Reform (ILR) issued TransUnion and Concrete Harm: One Year Later, a 68-page report that we authored for ILR. It explains the multiple arguments made available, or strengthened, by…

Continue Reading The Courts of Appeals’ Rigorous Application of TransUnion’s Standing Analysis Continues To Provide Defendants With Strong Arguments For Defeating Non-Injury Class Actions

Yesterday, the Supreme Court held in Viking River Cruises, Inc. v. Moriana (pdf) that the Federal Arbitration Act preempts a California rule invalidating arbitration agreements that provide for arbitration of an employee’s own claims under California’s Private Attorney General Act (PAGA), but waive the employee’s ability to assert PAGA claims affecting others.

The decision is enormously important to companies seeking to enforce workplace arbitration agreements in California. The decision also provides businesses with powerful arguments that California laws restricting arbitration in the consumer setting are preempted as well. (Disclosure: we filed an amicus brief (pdf) in support of the petition…

Continue Reading Supreme Court strikes down California rule barring individualized arbitration of California PAGA claims

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 three of us, represented the petitioner in Spokeo, and we filed an amicus brief (pdf) in support of TransUnion.)

The Court’s holding has enormous practical significance for defendants facing class actions seeking statutory damages.  The Court reinforced Spokeo’s core holding that Congress’s creation…
Continue Reading Supreme Court adopts robust view of Article III standing limitations in TransUnion, reaffirming and fortifying Spokeo

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 Court unanimously reversed (pdf), holding that equipment must be capable of random or sequential number generation in order to qualify as an “automatic telephone dialing system” under the TCPA.

The Court’s holding has enormous practical significance for defendants facing TCPA class actions.  The use of…
Continue Reading Supreme Court unanimously holds that Congress took a narrow approach to the types of autodialing devices covered under the TCPA

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 and texts? (The other question presented by the petition—the constitutionality and severability of the exception for government debts—was decided by the Court earlier this week.)

As we have reported, there is a deep circuit split over how to read the statutory language defining…
Continue Reading Supreme Court to decide what constitutes an autodialer under the TCPA

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.…

Continue Reading Supreme Court holds that the TCPA violates the First Amendment but only severs the government-debt exception as a remedy

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.…

Continue Reading Seventh and Eleventh Circuits Reject, But Second Circuit Follows, Ninth Circuit’s Expansive Autodialer Definition in Marks

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 all plaintiffs’ claims, or only the named plaintiffs’ claims?  Not only has the Supreme Court not decided this question, but no court of appeals has yet decided it.  The D.C. Circuit will likely be the first, in a case now pending – Molock v. Whole …
Continue Reading What Must Plaintiffs Show To Establish Specific Personal Jurisdiction Over Corporations in Class Actions?