Can you have a class action if class members can’t reliably be found? That question is at the heart of the debate over ascertainability—one that has divided the federal courts. Earlier this week, the Ninth Circuit weighed in, holding …
Tag Archives: Eleventh Circuit
Eleventh Circuit adopts broad view of businesses’ potential liability under TCPA for faxes sent by third parties
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 …
Class Action Fairness Act Roundup
Nine years after the Class Action Fairness Act of 2005 (“CAFA”) was enacted, parties continue to fight over when federal jurisdiction over significant class and mass actions is proper.
In this post, we provide a rundown of some of the …
Plaintiffs Can’t Evade Removal Under Class Action Fairness Act By Suing For Only Declaratory Relief
Over the years, the plaintiffs’ bar has used a wide variety of stratagems to try to prevent defendants from removing class actions to federal court. We’ve previously blogged about several of them. A recent Eleventh Circuit decision addresses yet …
Use the “Consumer” in Consumer Class Actions to Defeat Certification
Plaintiffs routinely bring consumer class actions under statutes that allow only consumers—not businesses—to bring claims, or that are limited to transactions solely for personal or household purposes. See, e.g., Electronic Funds Transfer Act, 15 U.S.C. § 1693a(2); …
Can Plaintiffs Gerrymander Mass Actions to Avoid Federal Jurisdiction?
The Class Action Fairness Act of 2005 (“CAFA”) provides that defendants may remove certain mass actions—cases that are proposed to be tried jointly—so long as the aggregate amount at stake is at least $5 million and there are 100 or …
Court Allows Employer Discovery Into Whether EEOC Actually Investigated Before Filing Discrimination Suit
A quick tip to employers facing class actions brought by the Equal Employment Opportunity Commission (EEOC)—don’t forget about the EEOC’s statutory duty to investigate the claim before filing suit.
Before the EEOC may file a lawsuit, an employee must have …
Expelliarmus! Eleventh Circuit Disarms False-Advertising Class Action Against Makers of Fantasy Video Game
Plaintiffs who wish to bring product-liability and consumer-fraud class actions against businesses often overreach when defining the proposed class in order to raise the stakes—and hence the settlement pressure—on the defendant. A recent unpublished decision by the Eleventh Circuit, Walewski …
Comcast Corp. v. Behrend: Upcoming Supreme Court Case Is Critical to Antitrust Class Actions
Although the class action bar in general is eagerly awaiting the Supreme Court argument in Comcast Corp. v. Behrend (No. 11-864)—which will be argued November 5th—antitrust practitioners in particular have a keen interest in the case. The issue …
Pendergast v. Sprint: Eleventh Circuit Holds That Federal Arbitration Act Preempts State-Law Attacks On Class-Action Waiver In Sprint’s Arbitration Agreement
Since the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the Eleventh Circuit has consistently enforced agreements to arbitrate with class waivers. Earlier this week, it did so again in a case involving Sprint’s arbitration agreement in …
Class Action Bar Targets Food Companies for False Advertising Lawsuits, Using Magnuson-Moss Warranty Act to Try to Evade Ninth Circuit’s Mazza Decision
The plaintiffs’ bar often uses adventuresome choice-of-law arguments to attempt to grease the skids towards certification of nationwide classes. Earlier this year, in a blockbuster decision, the Ninth Circuit rejected one of plaintiffs’ key arguments in Mazza v. American Honda …
