David Luck

David Luck

Carlton Fields

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Contemplating Cross-Appeals – When “Winners” Need to Appeal

One preservation issue that seems to receive less attention than it should is the potential need for a cross-appeal. An appellee/respondent who is not entirely successful in the trial court may challenge an unfavorable...more

9/19/2016 - Appeals CEQA Cross-Appeals Final Judgment Litigation Strategies Municipalities Preservation of Rights Real Estate Development Young Lawyers

The Amount-in-Controversy Requirement Presents an “Obstacle” to CAFA Removal

In Pazol v. Tough Mudder Inc., No. 15-1640, — F.3d —-, 2016 WL 1638045 (1st Cir. Apr. 26, 2016), the First Circuit analyzed the “reasonable probability” standard that a defendant must satisfy to support CAFA’s $5 million...more

5/17/2016 - Amount in Controversy CAFA Class Action Putative Class Actions Removal

SCOTUS Denies Review Regarding Pennsylvania Wal-Mart “Rest Break” Class Judgment

On April 4, the United States Supreme Court denied certiorari review of a $188 million class-action judgment returned against Wal-Mart in Pennsylvania state court and later upheld by the Pennsylvania Supreme Court regarding...more

4/19/2016 - Certiorari Class Action Dukes v Wal-Mart Rest and Meal Break SCOTUS Trial-by-Formula Wage and Hour Wal-Mart

For Want of a Damages Model, Certification Was Lost

Khasin v. R. C. Bigelow, Inc., No. 12-CV-02204-WHO, 2016 WL 1213767 (N.D. Cal. Mar. 29, 2016), provides a recent example of a class-certification denial premised on the “damages model” rule expressed in Comcast Corp. v....more

4/13/2016 - Class Certification Comcast v. Behrend Corporate Counsel False Advertising Predominance Requirement Putative Class Actions Rule 23(b)(3)

A Tale of Two Orders: Different Results for Motions to Strike Class Allegations

The Southern District of California and the Northern District of Illinois recently entered orders addressing motions to strike class allegations—with very different results for the respective defendants. Although the claims...more

4/13/2016 - Class Action Class Members Ford Motor Loan Modifications Mortgage Lenders Motion To Strike Truth in Lending Act (TILA)

2015 Food Industry Decisions With Bite

Food for Thought is a review of significant court decisions affecting the food, beverage, dietary supplements and personal care products industry. Although many cases in this edition focus on class certification, others...more

2/15/2016 - Ascertainable Class CAFA Chobani Inc Class Action Class Certification ConAgra Dietary Supplements FDCA Food Contamination Food Labeling Food Manufacturers Natural Products Ocean Spray Organic Preemption Rule 23(b)(3) Standing

Pre-Trial Problems: Don’t Forfeit Your Personal-Jurisdiction Defense

The Seventh Circuit’s decision in German American Financial Advisors & Trust Co. v. Rigsby, No. 15-1612, --- F. App’x ----, 2015 WL 5579751 (7th Cir. Sept. 23, 2015), highlights the preservation pitfall of forfeiting a...more

1/12/2016 - Litigation Strategies Motion to Dismiss Personal Jurisdiction Summary Judgment

Fifth Circuit Holds Unaccepted Rule 68 Offer of Judgment Cannot Moot a Named Plaintiff’s Claim in a Putative Class Action

The defendant in a putative class action brought pursuant to the Electronic Funds Transfer Act (EFTA), 15 U.S.C. § 1693, et seq., tendered a Rule 68 offer of judgment to the named plaintiff before class certification briefing...more

8/31/2015 - Attorney's Fees Campbell Ewald v Gomez Class Action Class Certification EFTA Electronic Fund Transfer Act FLSA Genesis HealthCare Genesis Healthcare Corp. v. Symczyk Mootness Motion to Dismiss Putative Class Actions Rule 68 SCOTUS Statutory Damages Subject Matter Jurisdiction

California District Court Finds CAFA’s Amount-in-Controversy Requirement Satisfied and No Local Controversy Alleged; Denies Motion...

The Southern District of California denied a plaintiff’s motion to remand a putative class action removed pursuant to the Class Action Fairness Act (CAFA), where the plaintiff had alleged that the primary defendant’s product,...more

8/27/2015 - Amount in Controversy CAFA Chobani Inc Class Action Dart Cherokee Basin Operating Co. v. Owens Jurisdiction Putative Class Actions Remand Safeway Inc SCOTUS Unfair or Deceptive Trade Practices

Western District of Missouri Declines to Deliver Certification in Class Action Based on Alleged Newspaper Subscription Overcharges

The Western District of Missouri denied class certification in an action alleging three regional newspapers—the Kansas City Star, the Fort Worth Star Telegram, and the Belleville News-Democrat—unlawfully double billed some of...more

8/10/2015 - Class Action Class Certification Newspapers

Eighth Circuit Affirms Denial of “Predominance” Class: The Long Arm of the Missouri Merchandising Practices Act Does Not Reach...

In 2012, California resident Ronald Perras brought suit in federal district court against H&R Block and its affiliates (H&R), which are headquartered in Kansas City, Missouri. Perras alleged that H&R violated the Missouri...more

7/10/2015 - Class Action Class Certification Fees H&R Block Predominance Requirement

Avon Calling: Employees Allege Overtime Exemption Misclassification

Avon categorizes all of its district service managers (DSMs) under the “administrative” exception of California law that requires employers to pay overtime wages. DSMs are the Avon employees who recruit and train the...more

5/19/2015 - Avon Class Action Dukes v Wal-Mart Independent Contractors Misclassification Rule 23(b)(3) Unpaid Overtime Wage and Hour

Town Gets Schooled on Class Definition in PCB Contamination Case

The Town of Lexington, Massachusetts filed a putative class action in 2012 on behalf of itself and alleged similarly situated Massachusetts school districts that have one or more buildings with airborne...more

4/8/2015 - Contaminated Properties Federal Rules of Civil Procedure PCBs Putative Class Actions Rule 23

Fifth Circuit Affirms Certification of Electronic Funds Transfer Act Class

In a case similar to its late-2014 decision in Mabary v. Home Town Bank, N.A., 771 F.3d 820 (5th Cir. 2014), the Fifth Circuit recently affirmed certification of a class of consumers who were charged a fee for using an...more

3/16/2015 - ATMs Banks Class Action Class Certification EFTA Electronic Fund Transfer Act First National

Dismissal With Prejudice Of Single Action In MDL Is Immediately Appealable, SCOTUS Holds

When a putative class action is transferred and consolidated with others for coordinated pretrial proceedings in multidistrict litigation (“MDL”) under 28 U.S.C. § 1407, it ordinarily remains an independent action for...more

2/12/2015 - Appeals Dismissal With Prejudice Gelboim v Bank of America Multidistrict Litigation Putative Class Actions SCOTUS

Standing Committee Approves Proposed Revised Rule 37(e)

The Committee on Rules of Practice and Procedure (Standing Committee) recently approved a revised Rule 37(e), which is intended to establish greater uniformity in the ways federal courts respond to the loss of electronically...more

6/20/2014 - Discovery Electronically Stored Information Federal Rules of Civil Procedure Proposed Amendments Rule 37

The Eleventh Circuit Reverses CAFA-Based Remand Order

On June 5, 2014, the Eleventh Circuit decided in favor of Fifth Third Bank on its appeal of a district court order remanding a putative class action to Florida state court. The basis for the remand order had been the...more

6/11/2014 - CAFA Class Action Putative Class Actions Remand

Florida Supreme Court Modifies State Forum Non Conveniens Doctrine As To The Level Of Deference Owed To An Out-Of-State...

On June 20, 2013, the Florida Supreme Court issued its decision in Cortez v. Palace Resorts, Inc., Case No. SC11-1908, addressing Florida’s forum non conveniens doctrine (a version of the federal standard). ...more

6/25/2013 - Choice-of-Venue Enforcement Forum Non Conveniens Forum Selection

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