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Mayer Brown - Class Defense Blog

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Supreme Court to Revisit Class-Certification Standards in Tyson Foods, Inc. v. Bouaphakeo

Monday, the Supreme Court granted review in what may be a major decision on the standards for class certification, Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146. Under Federal Rule of Civil Procedure 23, a court may not...more

6/9/2015 - Allstate Certiorari Class Action Class Certification Collective Actions Corporate Counsel Dow Chemical Dukes v Wal-Mart Employer Liability Issues Federal Rules of Civil Procedure FLSA Rest and Meal Break Rule 23 SCOTUS Statistical Analysis Tyson Foods Wal-Mart

Supreme Court to decide whether an offer of judgment for full relief moots a named plaintiff’s class-action claims

Article III of the Constitution limits the jurisdiction of the federal courts to “cases” and “controversies.” The Supreme Court has held that “‘an actual controversy … be extant at all stages of review, not merely at the time...more

5/19/2015 - Article III Campbell Ewald v Gomez Class Action Mootness Offer of Judgment Putative Class Actions Rule 68 SCOTUS Sovereign Immunity TCPA

U.S. Supreme Court Agrees To Hear Spokeo, Inc. v. Robins And Decide Whether Plaintiffs Who Have Suffered No Concrete Harm...

Under Article III of the U.S. Constitution, a plaintiff must allege that he or she has suffered an “injury-in-fact” to establish standing to sue in federal court....more

4/28/2015 - FCRA Injury-in-Fact Putative Class Actions SCOTUS Spokeo v Robins Standing

Supreme Court Grants Certiorari To Address Interplay of Federal Arbitration Act And State-Law Savings Clause In Arbitration...

As readers of this blog know, prior to the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the California Supreme Court (and a number of other state courts) had declared that waivers of class-wide arbitration...more

3/24/2015 - Arbitration AT&T Mobility v Concepcion Certiorari Class Action Class Action Arbitration Waivers Federal Arbitration Act SCOTUS

Third Circuit Hears Oral Argument Over Whether FTC Has Authority To Regulate Data Security

After much anticipation, the Third Circuit heard oral arguments (audio) last Tuesday in the interlocutory appeal in FTC v. Wyndham Worldwide Corp. We have written previously about this case, which likely will be a significant...more

3/9/2015 - Appeals Data Protection FTC FTC v Wyndham Hospitality Industry Hotels Oral Argument

U.S. Chamber of Commerce Files Amicus Brief on Ascertainability in Key Ninth Circuit Case

As readers of our blog know, ascertainability is one of the most contentious issues in class action litigation these days. Ascertainability is the main issue presented in Jones v. ConAgra Foods, No. 14-16327, a pending Ninth...more

2/4/2015 - Ascertainable Class Class Action ConAgra Food Labeling Putative Class Actions

Supreme Court Holds That Defendants Need Not Submit Evidence with a Notice of Removal Under the Class Action Fairness Act

To remove a civil action from state court to federal court, the defendant must “file … a notice of removal … containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). Under the Class Action...more

12/16/2014 - CAFA Class Action Dart Cherokee Basin Operating Co. v. Owens Federal Jurisdiction Removal SCOTUS

Standing Without Injury? Washington Legal Foundation Webinar Addresses “No-Injury” Class Actions

The Supreme Court is currently considering a petition for certiorari in Spokeo Inc. v. Robins (pdf), which raises the question whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm,...more

12/10/2014 - Class Action Federal Jurisdiction Petition for Writ of Certiorari Private Right of Action SCOTUS Spokeo v Robins Standing

En Banc Ninth Circuit Permits Removal Under CAFA of a Subdivided Mass Action

Over the past few years, a number of plaintiffs’ lawyers have attempted—with some success—to circumvent the “mass action” provisions in the Class Action Fairness Act of 2005 (“CAFA”), which allow defendants to remove to...more

11/21/2014 - CAFA Class Action Complex Litigation En Banc Review Removal

NLRB Refuses To Yield On Anti-Arbitration Ruling Despite Near-Unanimous Rejection By Courts

Friday was Halloween, an occasion when our thoughts turn to jack o’lanterns, ghosts, and zombies. We are particularly fascinated by zombies—the dead returned to life. But we’re not the only ones. In a decision early last...more

11/3/2014 - Arbitration Class Action Class Action Arbitration Waivers Conflicts of Laws D.R. Horton v NLRB Federal Arbitration Act NLRB SCOTUS

Supreme Court May Clarify Procedures For Removal Under CAFA—If It Decides To Answer The Question Presented in Dart Cherokee Basin...

This morning I attended oral arguments at the Supreme Court in Dart Cherokee Basin Operating Co. v. Owens. The issue presented in Dart Cherokee is whether a defendant who wishes to remove a case to federal court under the...more

10/8/2014 - CAFA Class Action Dart Cherokee Basin Operating Co. v. Owens Federal Jurisdiction Removal SCOTUS

Getting to “yes”: Ninth Circuit provides guidance on formation of “browsewrap” arbitration agreements

In the three years since AT&T Mobility LLC v. Concepcion, courts have largely been rejecting substantive attacks on arbitration agreements that waive class actions. By contrast, in some cases plaintiffs have succeeded in...more

8/26/2014 - Arbitration Arbitration Agreements AT&T Mobility v Concepcion Barnes and Noble SCOTUS

Third Circuit to Consider FTC’s Authority Over Data Security Standards in FTC v. Wyndham

We have written previously about the FTC’s action arising out of the data breach suffered by the Wyndham hotel group, and the company’s petition for permission to pursue an interlocutory appeal regarding the FTC’s use of its...more

7/31/2014 - Cybersecurity Data Protection FTC FTC v Wyndham Hospitality Industry Hotels Jurisdiction Popular Wyndham

Wyndham Seeks Immediate Appeal Over Whether FTC Has Authority To Regulate Data Security

We have written previously about FTC v. Wyndham Worldwide Corp., currently pending in federal district court in New Jersey, and its potential significance for data security class actions. A recent opinion in that case has...more

7/10/2014 - Data Protection FTC FTC v Wyndham Jurisdiction Wyndham

Supreme Court Refuses To Overturn Fraud-On-The-Market Presumption, But Adjusts Presumption To Allow Evidence of Absence Of “Price...

The securities class action industry was launched a quarter-century ago when the Supreme Court recognized the so-called “fraud-on-the-market” presumption of reliance in most putative securities class actions. The result has...more

6/24/2014 - Class Action Fraud Fraud-on-the-Market Halliburton Halliburton v Erica P. John Fund Putative Class Actions SCOTUS Securities Litigation

California Supreme Court Rejects Exceptionally Poor Sampling Method, But Leaves Open Many Questions About Sampling And Class...

In Duran v. U.S. Bank N.A., the California Supreme Court recently addressed an important question in the context of state-court class actions: Can plaintiffs invoke statistical sampling in an attempt to prove class-wide...more

6/5/2014 - Class Action Class Certification Dukes v Wal-Mart Evidence SCOTUS Statistical Sampling Wal-Mart

Primary Jurisdiction is Gaining Some Weight in the Food Court

The plaintiffs’ bar continues to file consumer class actions challenging food and beverage labels en masse, especially in the Northern District of California—also known as the “Food Court.”...more

6/3/2014 - FDA Food Labeling Food Manufacturers Jurisdiction

More Thoughts On Ascertainability And Why It Matters In Deciding Whether To Certify A Class Action

Can you have a class action if you can’t figure out who’s in the proposed class? According to many in the plaintiffs’ bar, the answer is “yes.” ...more

5/29/2014 - Affidavits Ascertainable Class Bayer Class Action Class Certification POM Wonderful Putative Class Actions

Third Circuit Rejects Effort At End Run Around The Ascertainability Requirement

We previously wrote about the Third Circuit’s decision in Carrera v. Bayer Corp., which reversed a district court’s class-certification order because there was no reliable way to ascertain class membership—indeed, no way to...more

5/9/2014 - Bayer Class Action Class Certification En Banc Review False Advertising Rule 23 Weight-Loss Products

Class Action Can’t Be Remanded To State Court Just Because The Plaintiff Says It’s Uncertifiable

When was the last time you saw a plaintiffs’ lawyer seeking to represent a class argue that the class couldn’t be certified? Readers might wonder whether this is a trick question. ...more

4/24/2014 - CAFA Class Action Class Certification Nutritional Supplements Pharmaceutical Remand Standing

Another California Court Does Backflips To Thwart Arbitration And Elevate The Class-Action Device

The hostility of some California courts to arbitration—and their resistance to preemption under the Federal Arbitration Act (FAA)—has produced nearly three decades of U.S. Supreme Court reversals. The most recent is AT&T...more

4/16/2014 - Arbitration Arbitration Agreements AT&T Mobility v Concepcion Class Action Class Action Arbitration Waivers DirectTV Discover Bank Rule Federal Arbitration Act SCOTUS

Federal Court Upholds FTC’s Authority To Bring Enforcement Actions Over Data-Security Standards; Will Class Actions Follow?

Already, 2014 has been an eventful year in the world of data breaches and cybersecurity. In addition to a flurry of litigation over high-profile breaches at the start of the year, the National Institute for Standards and...more

4/11/2014 - Class Action Cybersecurity Cybersecurity Framework Data Protection Enforcement Actions FTC Hospitality Industry Wyndham

Cert Petition Asks Supreme Court To Decide Whether Congress Can Allow Uninjured Plaintiffs To Sue In Federal Court

For years, defendants have argued that federal courts may not entertain class-action lawsuits when the plaintiff does not allege that he or she suffered any concrete personal harm and instead relies solely on an “injury in...more

2/26/2014 - Article III Certiorari SCOTUS Standing

What The NIST Cybersecurity Framework Might Mean For Class Actions

After a year of public-private collaboration and considerable anticipation, the National Institute for Standards and Technology’s (NIST) cybersecurity framework for critical infrastructure has arrived. The interest in the...more

2/25/2014 - Critical Infrastructure Sectors Cybersecurity Cybersecurity Framework NIST

En Banc Ninth Circuit Will Clarify When A Subdivided Mass Action Can Be Removed Under CAFA

Back in December, we blogged about two cases in the Ninth Circuit that were the latest skirmishes in the fight over whether plaintiffs can evade removal under the Class Action Fairness Act of 2005 (“CAFA”) by artificially...more

2/17/2014 - CAFA Class Action Mass Action Subdivision

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