Ben Seessel

Ben Seessel

Carlton Fields Jorden Burt

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Catching Up To Insurers’ Use of Big Data

Various groups within the NAIC are beginning to study the way in which insurers are using big data. On the property and casualty front, the Market Regulation (D) (Market Reg) Committee is reviewing the use of big data in...more

10/2/2015 - Algorithms Big Data Claim Procedures Data Analytics FCRA Insurance Companies Insurance Industry Insurers NAIC Underwriting

Ninth Circuit Holds District Court Erred In Denying Certification To Class Of Google Advertisers

A Ninth Circuit panel reversed a district court’s order denying certification of a putative nationwide class of internet advertisers, holding that the district court erred in finding that plaintiff failed to satisfy Rule...more

10/1/2015 - Advertising AdWords Appeals Class Action Class Certification Comcast Comcast v. Behrend Google Online Advertisements Putative Class Actions Rule 23(b)(3) Unfair Competition Websites

Cybersecurity as a Regulatory Issue: The NAIC Considers The Anthem Breach And Weighs a “Cybersecurity Bill of Rights”

The Cybersecurity Task Force of the National Association of Insurance Commissioners (the “NAIC”) met last month, as part of on the NAIC’s 2015 Summer National Meeting in Chicago. The Task Force focused on two issues: the...more

9/3/2015 - Anthem Blue Cross Consumer Privacy Bill of Rights Cyber Attacks Cyber Crimes Cyber Insurance Cyber Threats Cybersecurity Cybersecurity Framework Data Breach Data Protection Data Security FBI Healthcare Insurance Industry NAIC Popular Task Force

CAFA Jurisdiction: Cases Consolidated in California Cannot be Split by the Local Controversy Exception

Assuming its other requirements are satisfied, the local controversy exception to CAFA jurisdiction requires a district court to remand a class action if, during the three-year period preceding the filing of that action,...more

9/1/2015 - CAFA Class Action Employment Discrimination Gender Discrimination Jurisdiction Race Discrimination

Seventh Circuit Affirms Approval of Class Action Coupon Settlement Despite “Clear Sailing” and “Kicker” Clauses and Potential...

The Seventh Circuit affirmed a class action coupon settlement involving “clear sailing” and “kicker” clauses and a fee award based on the lodestar analysis rather than the value of the redeemed coupons, and notwithstanding a...more

8/28/2015 - Class Action Conflicts of Interest Fee Awards Lodestar Method Settlement Southwest Airlines Vouchers

Seventh Circuit Applies “Weak” Ascertainability Requirement, Splits From Third and Eleventh Circuits

A panel from the Seventh Circuit split from the Third and Eleventh Circuits and rejected what it described to be a “heightened” ascertainability requirement under Rule 23(b)(3). In Mullins v. Direct Digital, LLC, plaintiff...more

8/12/2015 - Ascertainable Class Bayer BMW Class Action False Advertising Nutrition Facts Labels Nutritional Supplements Rule 23(b)(3) Rule 23(f) Unfair or Deceptive Trade Practices Vital Pharmaceuticals

Representative Action Under California’s Private Attorneys General Act Not Waived Through Employment Agreement’s Arbitration...

The Central District of California held that a waiver of representative actions in an employment agreement’s arbitration provision did not preclude a former employee from pursuing in court a claim under California’s Private...more

8/6/2015 - Arbitration Arbitration Agreements AT&T Mobility v Concepcion Employment Contract Federal Arbitration Act PAGA

Certification Unhealthy: Ninth Circuit Vacates Order Certifying Class of Dietary Supplement Purchasers

The Ninth Circuit vacated a class certification order issued by the Central District of California, finding that common issues did not predominate because plaintiff had failed to demonstrate that the alleged misrepresentation...more

7/2/2015 - Class Action Class Certification CLRA Dietary Supplements False Advertising Putative Class Actions Unfair Competition

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 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

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