Class Action Trends

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As this summer comes to a close, many of our readers are no doubt making plans for the fall. If those plans include learning about the latest in class actions, you should keep reading the blog, of course! But you might also wish to consider attending this year’s annual Class Actions Conference (organized by CLE International). I am surely biased in making the recommendation, as I am co-chairing the conference with Lisa Mezzetti of Cohen Milstein, the well-known plaintiffs’ firm.

The conference, which will take place on October 3 and 4 in Washington, DC, promises to be interesting. It…
Continue Reading Class Action Conference In Washington, D.C. – Save the Date!

The Telephone Consumer Protection Act (TCPA) is a favorite of the plaintiffs’ class-action bar because it provides for statutory damages of up to $1,500 for knowing or willful violations. With some exceptions, the TCPA prohibits, among other things, unsolicited marketing faxes as well as calls and text messages using autodialers or prerecorded voices. See, e.g., 47 U.S.C. §227. Because the TCPA and its regulations impose many complex and technical requirements, the inevitability of innocent slip-ups combined with an active plaintiffs’ bar seeking out clever ways to argue that lawful practices are actionable can entail massive potential liability…
Continue Reading Are You Prepared for the New TCPA Rules? The Plaintiffs’ Bar Is.

When a company’s computer systems are raided by hackers, all too often it must brace itself for being victimized a second time by the class action bar. Plaintiffs frequently target such companies for class actions on behalf of the consumers whose data might have been exposed as a result of the potential data breach.
The fact that the consumers rarely have experienced any real harm can be the Achilles’ heel of these data-breach class actions. “World of Warcraft” creator Blizzard Entertainment Inc. was able to capitalize on this vulnerability when a court dismissed most of a putative class action against…
Continue Reading Failure to Allege Harm Narrows Data-Breach Suit

Lawsuits under the federal Truth in Lending (TILA) Act are commonly filed as putative class actions. An interesting report from the Transaction Records Access Clearinghouse (TRAC) reports that TILA litigation in federal courts has decreased 89 percent in the last four years. In particular, in May 2013, only 16 new TILA actions were filed in federal court. By contrast, four years ago, in May 2009, 152 TILA actions were filed.

Here is a graph from TRAC’s report, which shows that the rate of TILA filings today is below 2008 levels:

 
Continue Reading The Flood of Truth in Lending Act Litigation May Be Ebbing

Companies that provide credit to their customers are well aware that the Fair Debt Collection Practices Act (FDCPA), which authorizes suits against violators for statutory damages of up to $1,000, applies only to “debt collectors”—not creditors. 15 U.S.C. § 1692k.

But a recent bulletin (pdf) by the CFPB—whose commissioner Richard Cordray was just confirmed by the Senate—may open the door to actions against creditors (albeit under the Dodd-Frank Act rather than the FDCPA). That bulletin states that entities covered by the Dodd-Frank Act must “refrain from committing unfair, deceptive, or abusive acts or practices” in “collecting consumer debts.”…
Continue Reading Will Creditors Face Actions Over Their Debt-Collection Practices by the CFPB or the Class-Action Bar?

Over the past two years, a big growth area for plaintiffs’ lawyers has been cases challenging the use of zip codes or other identifying information by merchants that process credit-card transactions.

In 2011, the California Supreme Court held in Pineda v. Williams-Sonoma Stores that a zip code constitutes “personal identification information” under California’s Song-Beverly Credit Card Act, thus potentially exposing retailers to civil penalties of up to $1,000 per violation if they request and record the zip codes of customers paying by credit card. (My colleagues John Nadolenco and Archis Parasharami did a teleconference about Pineda that you can listen…
Continue Reading Where Will the Zip Code Class Actions Be Filed Next?

The federal Food Drug and Cosmetic Act (“FDCA”)—along with the implementing regulations promulgated by the FDA—sets out a detailed national standard for much of what appears on food and beverage labeling. See 21 U.S.C. §§ 301, et seq.; 21 C.F.R. §§ 101, et seq.; Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170, 1175 (9th Cir. 2012). This national labeling law expressly preempts states from enacting different requirements for labels, including requirements imposed by courts under the guise of redressing a “misleading” or “fraudulent” label. 21 U.S.C. § 343-1; Turek v. Gen. Mills, Inc.,…
Continue Reading Are State-Law Claims for Violating Federal Food Labeling Law Preempted?

We’ve blogged before about whether parens patriae lawsuits filed by state attorneys’ general to recover money on behalf of state citizens can be removed under the Class Action Fairness Act (CAFA). (CAFA authorizes defendants to remove certain “mass actions” involving “monetary relief claims of 100 or more persons” from state court to federal court. 28 U.S.C. § 1332(d)(11)(B)(i). Today, the Supreme Court granted certiorari in Mississippi ex rel. Hood v. AU Optronics Corp., No. 12-1036, to resolve a circuit split on this issue.

The case arises from a lawsuit that the Mississippi attorney general filed in state court…
Continue Reading Supreme Court To Decide Whether Parens Patriae Suits Can Be Removed Under Class Action Fairness Act

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 rule of decision was the one in which a consumer received misleading communications, made her purchase, and sustained any injury—not the location of the company headquarters from which the communications “emanated.”

In Maniscalco v. Brother International (USA) Corp., the Third Circuit reached a similar …
Continue Reading Third Circuit Rejects South Carolinan’s Effort To Bring Nationwide False Advertising Class Under New Jersey Law

Carlton Fields recently published a survey (pdf) of 368 general counsel and other in-house counsel at major companies across more than 25 industries regarding the class actions they faced in 2012 and their expectations for 2013. A number of the findings were quite interesting:

  • In-house counsel reported that their companies spent $2.1 billion on class actions in 2012, a slight decline from 2011. Per-company spending, however, varied widely, with some companies spending $100 million a year and some as little as $180,000. The per-company average was $3.19 million.
  • In 2012, the typical class action cost $671,100 annually, a

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Continue Reading In-House Counsel Predictions of Class Action Trends