Ben Seessel

Ben Seessel

Carlton Fields Jorden Burt

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Sixth Circuit Holds No Disgorgement of Profits Based on Wrongfully Denied ERISA Disability Benefits

The Sixth Circuit Court of Appeals, sitting en banc, recently decided a closely-watched case regarding the scope of "other appropriate equitable relief" under ERISA Section 502(a)(3). In Rochow v. LINA, the court held that...more

6/18/2015 - 401k Amicus Briefs Attorney's Fees Disability Benefits Disgorgement Employee Benefits En Banc Review Equitable Relief ERISA Insurance Industry Retirement Retirement Plan

Supreme Court to Consider “Trial by Formula” and Standing of Non-Injured Class Members in Tyson Foods

The Supreme Court recently granted Tyson Foods’ petition for certiorari which presents to the Court two important class action issues: (1) Whether differences among individual class members may be ignored and a class...more

6/15/2015 - Algorithms Article III Campbell Ewald v Gomez Certiorari Class Action Comcast v. Behrend Doffing Donning Due Process Dukes v Wal-Mart FLSA Protective Gear Rules Enabling Act SCOTUS Spokeo v Robins Trial-by-Formula Tyson Foods v Bouaphakeo Unpaid Overtime Wage and Hour

CAFA Local Controversy Exception Established Through Sampling and Statistics

An Illinois federal district court recently credited sampling data as evidence sufficient to establish the citizenship of putative class members for purposes of invoking the local controversy exception to CAFA...more

6/10/2015 - CAFA Class Action Class Certification Contaminated Properties Jurisdiction Putative Class Actions

Ninth Circuit Strictly Construes “Single Local Event” Exception to CAFA Jurisdiction for Mass Actions

In a recent decision, the Ninth Circuit Court of Appeals strictly construed the “single local event” exception to federal jurisdiction under CAFA as not encompassing “events or occurrences” that are of a continuing...more

5/15/2015 - Appeals Boeing CAFA Class Action Environmental Claims Groundwater Jurisdiction Mass Action

California District Court Refuses To Certify 33-Jurisdiction Class Due To Material Variations in State Warranty Law

The U.S. District Court for the Eastern District of California certified a California-only subclass of purchasers of allegedly mislabeled KitchenAid refrigerators but denied plaintiffs’ motion to certify a 32-state and...more

5/14/2015 - Class Action Consumers Legal Remedies Act ENERGY STAR Program Jurisdiction Labeling Misleading Impressions Unfair Competition Warranties Whirlpool

Ninth Circuit Holds Defendant Can Remove Within 30-Days After CAFA Grounds Are Ascertained, Even Where Complaint Provided Basis...

A Ninth Circuit panel has held that a defendant may remove a case to federal court within 30 days after the CAFA ground for removal can first be ascertained, even where plaintiff’s complaint, filed years earlier, provided a...more

4/16/2015 - Amount in Controversy CAFA Class Action FDCPA Removal

Ninth Circuit Holds That State Court’s Class Certification Order Creates New Occasion for CAFA Removal

The Ninth Circuit held that a state court’s certification order, under which CAFA’s amount in controversy would be met, created a new basis for defendant to remove the case to federal court. The plaintiff had filed a putative...more

4/15/2015 - Business & Professions Code CAFA Class Certification Dollar Tree Employer Liability Issues Labor Code Putative Class Actions Removal Retailers Wage and Hour

Question Certified To Second Circuit: Does The Court Or The Arbitrator Decide Whether An Arbitration Agreement Permits Class...

In the Second Circuit, as in other jurisdictions, only exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment. A New York federal...more

3/20/2015 - Arbitration Arbitration Agreements Final Judgment Interlocutory Appeals

Second Circuit Vacates Class Certification Order, Applying Various State’s Laws Precludes Finding Of Predominance And Superiority

The Second Circuit vacated a class certification order issued by the Southern District of New York, finding that Rule 23(b)(3)’s predominance and superiority requirements could not be met given the necessity of applying 27...more

3/18/2015 - Attorney Malpractice Class Certification Rule 23(b)(3) Vacated

Sixth Circuit Rejects Rule 23(F) Petition: Comcast Not Necessarily Triggered By Antitrust Class’s Use Of A Single Damages Model...

In an antitrust class action lawsuit, multiple theories of liability often create separable anticompetitive effects that, when combined, can result in aggregated damages, but a plaintiff’s model must measure damages...more

2/20/2015 - Antitrust Litigation Calculation of Damages Class Action Class Certification Comcast v. Behrend Employer Liability Issues Hospitals Nurses Rule-of-Reason Analysis SCOTUS Wage-Fixing

District Court Strikes Homeowners Policyholders’ Class Action Allegations

The United States District Court for the Southern District of Ohio granted defendant State Auto’s motion to strike plaintiffs’ class allegations, holding that the complaint itself demonstrated that the proposed class was not...more

2/17/2015 - Ascertainable Class Class Action Homeowner's Insurance

Eighth Circuit Clarifies the Requirements for Cy Pres Distribution of Class Action Settlement Funds

Due to what it called a “substantial history of district courts ignoring and resisting circuit court cy pres concerns and rulings in class action cases,” the Eighth Circuit recently clarified the legal principles surrounding...more

1/26/2015 - Bank of America Class Action Cy Pres Funds Nationsbank Securities Structured Settlements

Ninth Circuit Issues Companion Cases Addressing Evidence Required To Show That The Amount In Controversy Requirement Has Been Met...

Through a pair of opinions issued the same day, the Ninth Circuit attempted to clarify the evidence required for a defendant to meet its burden of showing that the amount in controversy exceeds CAFA’s $5 million threshold...more

1/23/2015 - Amount in Controversy CAFA Class Action Dart Cherokee Basin Operating Co. v. Owens Employer Liability Issues Evidence Unpaid Overtime Unpaid Wages Wage and Hour

Third Circuit: Strict Ascertainability Optional for Rule 23(B)(2) Class

Although not explicitly set forth in Rule 23, an essential prerequisite of any action under Rule 23 is that there must be an identifiable “class” at the moment of certification. The shorthand term commonly used to refer to...more

1/22/2015 - Appeals Ascertainable Class Class Action Class Certification Declaratory Relief Injunctive Relief Rule 23 Rule 23(b)(2)

Expect Focus - Spot The Regulator, Volume IV, Fall 2014

In This Issue: - IN THE SPOTLIGHT ..Crisis Management: Five Steps to Take Before Providing That Comment - LIFE INSURANCE ..Third Circuit Limits ERISA Fiduciary Liability to those with Ultimate...more

1/16/2015 - Automotive Loans CFTC Class Action Consumer Complaint System Data Breach Divorce Driverless Cars FCC Healthcare HIPAA Insurance Industry Life Insurance Money Market Funds Mortgages NAIC Private Equity Funds STOLI Unsolicited Faxes

Cybersecurity: Dig That Crazy Important Beat

The SEC and FINRA are maintaining a steady drumbeat to motivate regulated firms to adequately protect themselves from cyberattack. The SEC’s Office of Compliance Inspections and Examinations (OCIE) began 2014 by...more

1/12/2015 - Broker-Dealer Cybersecurity FINRA OCIE SEC Strategic Enforcement Plan

California District Court Finds that CAFA’s Amount-in-Controversy Requirement was Satisfied; Denies Motion to Remand

The U.S. District Court for the Northern District of California denied plaintiff’s motion to remand, holding that plaintiff’s claim for unpaid wages and overtime satisfied CAFA’s amount-in-controversy requirement. ...more

12/24/2014 - Amount in Controversy CAFA Class Action Employer Liability Issues Finish Line Labor Code SCOTUS Unpaid Overtime Wage and Hour Wages

Supreme Court Confirms That A Notice Of Removal Requires Only A “Plausible Allegation” That The Amount In Controversy Has Been Met

The Supreme Court has held that a notice of removal requires only a “plausible allegation that the amount in controversy exceeds the jurisdictional threshold,” and confirmed that a notice of removal need not include evidence...more

12/19/2014 - Amount in Controversy CAFA Class Action Dart Cherokee Basin Operating Co. v. Owens Diversity Jurisdiction Federal Jurisdiction Jurisdiction Removal SCOTUS

Second Circuit Affirms District Court’s Denial of Certification of Class of Investors Alleging Common Law Fraud Under New York Law

The Second Circuit affirmed the district court’s denial of class certification of a class of investors based on the appellants’ failure to satisfy the numerosity and commonality requirements of Rule 23(a). Following the...more

11/21/2014 - Class Action Fraud Institutional Investment Investors Morgan Stanley Rule 23 Structured Financial Products

Court Denies Motion to Remand, Rejecting Application of Home State and Local Controversy Exceptions to CAFA

The plaintiff filed a putative class action in Pennsylvania state court against two Pennsylvania defendants and one Virginia defendant, claiming that the defendants preyed on non-English speakers, illegally coercing them to...more

11/19/2014 - CAFA Employer Liability Issues Franchise Agreements Home State Exception Putative Class Actions

Pennsylvania District Court Denies Terminated Insurance Agents’ Bid for Certification

The Eastern District of Pennsylvania denied plaintiffs’ motion to certify certain issues under Rule 23(c)(4) and 23(b)(2), holding that the presence of numerous individualized questions, choice-of-law concerns, and other...more

10/24/2014 - Class Action Class Certification Federal Rules of Civil Procedure Putative Class Actions Rule 23

Correlation Is Not Causation: Class Certification Denied Because Experts’ Methodologies Fail To Show Predominate Antitrust Injury...

A California federal district court denied certification of two nationwide classes, each asserting a price-fixing conspiracy for optical disk drives (“ODD”), because the plaintiffs’ experts failed to provide a viable...more

10/23/2014 - Causation Class Action Class Certification Expert Testimony Expert Witness Medical Devices Technology

California District Court Certifies “Not Inherently Unascertainable” Consumer Class

In addition to the explicit Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation, an implied prerequisite to certification is that the class must be sufficiently definite: that is,...more

10/22/2014 - Class Certification Credit Reporting Agencies Credit Reports Debt Buyers Debt Collection FDCPA HSBC Midland Funding Putative Class Actions

Life Insurer Prevails in First Circuit Appeal in ERISA Class Action Challenging Retained Asset Accounts

In a unanimous panel decision, the U.S. Court of Appeals for the First Circuit reversed a trial court’s ruling that the defendant, Unum Life Insurance Company of America (Unum), had breached fiduciary duties under the...more

10/22/2014 - Class Action ERISA Life Insurance Retained Asset Accounts

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