Photo of Kevin Ranlett

Kevin Ranlett

Subscribe to Kevin Ranlett's Posts

Kevin Ranlett is a partner in the firm's Supreme Court & Appellate and Consumer Litigation & Class Actions practices. He has defended businesses in numerous complex class and representative actions in state and federal courts across the country and in proceedings before the American Arbitration Association. In addition to drafting critical trial motions, Kevin has a substantial appellate practice. He has written merits or amicus briefs in appeals involving issues of class certification, arbitration, securities law, federal preemption, the Alien Tort Statute, punitive damages, and employment discrimination. He also advises businesses in drafting and enforcing consumer and employee arbitration agreements.

Read Kevin's full bio.

Follow: Read more about Kevin Ranlett

Today, a panel of the D.C. Circuit—composed of Judges Srinivasan and Pillard and Senior Judge Edwards—heard argument in ACA International v. FCC, the consolidated appeals from the FCC’s 2015 Declaratory Ruling and Order, which greatly expanded the reach of the Telephone Consumer Protection Act (“TCPA”). (An audio recording of the argument is here, and Kevin attended the argument.) The case has been closely watched, and a number of TCPA class actions around the country have been stayed to await the D.C. Circuit’s decision.  More detail is below the fold, but here are our quick impressions from the argument:

  • The panel asked tough questions of lawyers for both sides in an argument that went two full hours over the allotted 40 minutes.
  • The panel focused most of its attention on the FCC’s new—and far-reaching—definition of an automatic telephone dialing system (ATDS, or “autodialer”). All three judges expressed discomfort with the fact that the FCC’s new definition could be read to cover smartphones.
  • Judge Edwards repeatedly voiced criticisms of the FCC’s expansive readings of the TCPA across the board, and may be inclined to vacate large portions of the FCC’s Declaratory Ruling.
  • Judge Pillard seemed the most receptive to the FCC’s arguments.
  • Judges Srinivasan was the hardest to read, but it seems possible that he might join Judge Edwards in setting aside major portions of the FCC’s Declaratory Ruling.

…
Continue Reading D.C. Circuit Weighing FCC’s Controversial 2015 TCPA Declaratory Ruling

A unanimous panel of the Fourth Circuit has held Del Webb Communities, Inc. v. Carlson that the question whether an arbitration agreement authorizes class-wide arbitration is for the courts, not an arbitrator, to decide—unless the agreement clearly and unmistakably delegates that issue to the arbitrator. In so holding, the Fourth Circuit aligned itself with decisions of the Third and Sixth Circuits. As we discuss below, the decision benefits businesses that seek to enforce individual arbitration when the arbitration agreement does not expressly authorize class arbitration: If the important question of the availability of class-wide arbitration was assigned to an arbitrator, meaningful judicial review of that decision would not be available.
…
Continue Reading Fourth Circuit: Courts, Not Arbitrators, Decide If Arbitration Agreement Authorizes Class-Wide Arbitration

Although the Class Action Fairness Act of 2005 (CAFA) permits most significant class actions to be heard in federal court, the law requires district courts to remand so-called “local controversies” to state court. A “local controversy” is a class action in which “greater than two-thirds of the members of the proposed classes” are “citizens” of the forum state and at least one defendant “from whom significant relief is sought” and whose “alleged conduct forms a significant basis for the claims asserted” is also a “citizen” of that state. 28 U.S.C. §1332(d)(4).

In an effort to come within this exception,…
Continue Reading Tenth Circuit holds that environmental contamination case doesn’t require remand under Class Action Fairness Act’s “local controversy” exception

iStock_000027020861_DoubleWe’ve often argued that when the principal rationale for approving a low-value class settlement is that the claims are weak, that is a signal that the case should not have been filed as a class action in the first place. The Second Circuit recently reached that exact conclusion when considering a proposed class settlement in a Fair Debt Collection Practices Act (FDCPA) case, holding that the putative class couldn’t be certified and that the FDCPA claims should be dismissed.
…
Continue Reading Second Circuit holds that class action seeking “meaningless” relief shouldn’t be certified

The Eighth Circuit recently issued a decision reversing class certification for lack of commonality.

In Smith v. ConocoPhillips Pipe Line Co., the Eighth Circuit considered a class action proceeding on a nuisance theory against the owner of a pipeline. The plaintiffs, who owned property near the pipeline and were suing on behalf of a class of landowners, contended that the pipeline was a nuisance because they feared environmental contamination. After the district court certified the class, the Eighth Circuit granted a petition for review and reversed.

The Eighth Circuit explained that without evidence of contamination, “the putative class fear…
Continue Reading Eighth Circuit Decertifies Environmental Nuisance Class Action Alleging “Fear of Contamination” Without More

Concept-Changes_Hughway_Sign_44809020Rule 23 may be in for some major changes. The Advisory Committee has commissioned a Rule 23 subcommittee to investigate possible revisions to the class action rules. That subcommittee issued a report (pdf) discussing its progress, and recently has been conducting a “listening tour” of sorts regarding potential rule changes.

Our initial view is that the business community should have serious concerns about the approach that at least some members of the subcommittee appear to be taking, as several proposals are aimed at rolling back judicial decisions—including Supreme Court decisions—that are critical to ensuring that class actions satisfy the requirements of due process.

Here are ten things you need to know from the subcommittee’s report.…

Continue Reading Ten Things Class Action Practitioners Need To Know About Potential Amendments To Federal Rule Of Civil Procedure 23

FCC logo“This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.” That’s what FCC Commissioner Ajit Pai had to say in his dissent from the FCC’s recent Declaratory Ruling and Order, issued on July 10, 2015. The FCC’s Order reflected the agency’s response to 21 petitions seeking guidance regarding or exemptions from various requirements under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and its implementing regulations.

The TCPA prohibits certain fax and automated-dialing practices and authorizes recovery of up to $1,500 per call, text message, or fax sent in willful violation of its restrictions. The TCPA has led to a tidal wave of class-action litigation, and the FCC’s recent Order may hasten that trend.

Most prominently, the FCC’s recent ruling:…

Continue Reading FCC Expands Potential Liability under the Telephone Consumer Protection Act for Business-to-Customer Calls and Text Messages

The first bill signed by Oregon Governor Kate Brown—H.B. 2700 (pdf)—changes the rules for handling payment of damages awards in class actions in Oregon state courts. Effective immediately, including for pending actions, the new law attempts to redirect unclaimed damages under class-action settlements or judgments to the state bar’s legal aid program and to charities picked by the judge presiding over each case. In other words, Oregon has effectively mandated cy pres in every class action. (We’ve repeatedly covered—and criticized—the use of cy pres awards in class actions.)

Among other things, the new law amends Oregon Rule of Civil …
Continue Reading New Oregon class-action law purports to seize unclaimed damages for legal aid and judge-picked charities

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

One of the hottest areas in class actions is litigation under the Telephone Consumer Protection Act (TCPA).  And one of the most significant issues in TCPA litigation is the existence and scope of vicarious liability.  The key question is to what extent are businesses liable for the actions of third-party marketers who, without the consent of the recipient, send text messages or place calls using autodialers or prerecorded voices or transmit faxes?

Some plaintiffs had argued that businesses are strictly liable for TCPA violations committed in their name by third-party marketers.  Last year, the FCC rejected that approach in a…
Continue Reading Eleventh Circuit adopts broad view of businesses’ potential liability under TCPA for faxes sent by third parties