Kristin Ann Shepard

Kristin Ann Shepard

Carlton Fields

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Third Circuit Creates Framework for Analyzing Numerosity

The Third Circuit recently vacated class certification, granted by the Eastern District of Pennsylvania after nearly a decade of litigation, in an antitrust case alleging that a pharmaceutical company entered into agreements...more

9/29/2016 - Anti-Competitive Antitrust Litigation Antitrust Violations Class Action Class Certification Comcast v. Behrend FRCP 23(b)(3) Generic Drugs Patents Pay-For-Delay Pharmaceutical Industry Pharmaceutical Patents Predominance Requirement Prescription Drugs Vacated

Eighth Circuit Privacy Class Action Fails to Clear Second Hurdle

In Carlsen v. GameStop Inc., plaintiff ­– a paid subscriber to defendant’s online gaming magazine – brought a putative class action lawsuit against defendant for alleged breach of its privacy policy by disclosing plaintiff’s...more

9/2/2016 - Article III Breach of Contract Class Action Consumer Fraud Data Breach Facebook Federal Rule 12(b)(1) GameStop Gaming Information Sharing Motion to Dismiss Online Gaming Personally Identifiable Information Popular Privacy Concerns Privacy Policy Standing Subject Matter Jurisdiction Unjust Enrichment Video Games

Third Circuit Rejects Inflated-Value Theory of Damages, Declines to Certify Law School Tuition Class

The Third Circuit recently affirmed the denial of class certification in a suit alleging that a law school made misrepresentations about the employment status of its graduates, thereby inducing students to pay inflated...more

9/1/2016 - Class Action Class Certification Consumer Fraud Damages Educational Institutions Fraud-on-the-Market Gainful Employment Law School Misrepresentation Rule 23(b)(3) Students Targeted Employment Area Tuition Young Lawyers

Another One Bites the Dust: Maryland Federal District Court Dismisses Putative Data Breach Class Action for Lack of Standing

The United States District Court of Maryland recently dismissed a putative class action alleging that CareFirst’s failure to adequately secure the computer hardware storing their customers’ personal information led to two...more

6/30/2016 - Article III CareFirst Class Action Cyber Attacks Cybersecurity Data Breach Dismissals Hackers Health Insurance Identity Theft Insurance Industry Personally Identifiable Information Putative Class Actions Standing

The Future of Class Actions: The Impact of Justice Scalia’s Death on Upcoming Rulings

There is no doubt that the death of Supreme Court Justice Antonin Scalia will have major repercussions on Supreme Court jurisprudence. A 30-year veteran of the Court, Justice Scalia was known for his originalist positions and...more

4/26/2016 - AT&T Mobility v Concepcion Barack Obama Class Action Class Certification Comcast v. Behrend Corporate Counsel Dukes v Wal-Mart Justice Scalia Merrick Garland Microsoft v Baker Rule 23 SCOTUS Spokeo v Robins Tyson Foods v Bouaphakeo Young Lawyers

Will Tender of Full Amount of Named Plaintiff’s Claim Moot a TCPA Class Action?

In Campbell-Ewald Co. v Gomez, 136 S.Ct. 663 (2016), the Supreme Court held that Rule 68 offers of judgment to a class representative do not moot a class action. The Supreme Court left open the possibility that an actual...more

3/28/2016 - Mootness Putative Class Actions Rule 68 TCPA Tender Offers

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

Seventh Circuit Weighs In On One-Way Intervention

Does plaintiff’s contemporaneous filing of a motion for summary judgment and a motion for class certification violate the rule against one-way intervention? In Costello, plaintiff filed his motions for summary judgment and...more

2/4/2016 - Class Certification Judgment on the Merits Motion for Summary Judgment Young Lawyers

Limits of Ascertainability Reached in Class Allegations Against Equifax

Plaintiff, hoping to recover from Equifax for issuing a credit report with “incorrect and damaging information,” sought to represent a class of “all persons who disputed an Equifax credit report and where Equifax failed to...more

2/3/2016 - Ascertainable Class Class Action Credit Reporting Agencies Credit Reports Equifax FCRA

No Party for IRS: Court Certifies Class of Conservative Nonprofits

If you thought that the political controversy over alleged IRS targeting of Tea Party organizations was confined to the media, think again – the issue has reached the courts. The Southern District of Ohio recently granted...more

2/2/2016 - 501(c)(3) 501(c)(4) Class Certification IRS Political Affiliation Rule 23 Tax Exemptions Tea Party

Court Allows Class Member Self-Identification Where Employer Failed to Retain Records

The Northern District of California recently certified a class of employees in an action against an auto parts store for failure to reimburse expenses. Plaintiff alleged that the defendant required certain management-level...more

1/14/2016 - Class Action Class Certification Conflicts of Interest Recordkeeping Requirements Reimbursements

No Automatic Certification For Robosigning Class

In this multidistrict litigation, plaintiffs sought certification of two classes of Arizona property owners challenging the operation of the Mortgage Electronic Registration Systems (MERS) in transferring the beneficial...more

1/13/2016 - Class Certification Deed of Trust MERS Mortgages Registration Transfer of Interest

CAFA Settlement Trap: States As Absent Class Members

Will a Class Action Fairness Act (CAFA) notice of settlement bind a state as an absent class member? A Pennsylvania federal district court recently offered guidance on this issue. The case involved allegations that the...more

1/11/2016 - CAFA Class Members Generic Drugs Pharmaceutical Industry Settlement Agreements

Data Breach Class Actions: 2015 Year in Review and 2016 Preview

As 2015 draws to a close, questions over standing in data breach class actions remain. Earlier this year, the Seventh Circuit denied retailer Neiman Marcus’s petition for rehearing en banc of a panel opinion holding that...more

12/15/2015 - Article III Class Action Data Breach Personally Identifiable Information Standing

Arbitration Awards Prove an Obstacle to Class Claims

Two recent decisions illustrate the impact arbitration provisions can have on the availability of classwide relief. In Kaspers v. Comcast Corp., plaintiff, a Comcast customer, refused to pay for certain billed services...more

12/11/2015 - American Arbitration Association Arbitration Awards Class Action Class Action Arbitration Waivers

Defects More Than Cosmetic: Beauty Product Purchasers Fail to Satisfy Rule 23

The Southern District of New York recently denied class certification in a consolidated putative class action against a cosmetics company for breach of contract, false advertising, unfair competition, deceptive acts and...more

10/19/2015 - Avon Breach of Contract Class Action Class Certification Cosmetics False Advertising Putative Class Actions Rule 23 Unfair Competition Unfair or Deceptive Trade Practices

How to Handle Claims Brought by a Class Representative Under Laws of a Different State: Lessons from the Northern District of...

Arroyo v. TP-Link USA Corporation (N.D. Cal.) presents a varied opinion on the viability of class claims under California law, particularly as brought by a non-California class representative. Plaintiff, a Florida resident,...more

10/13/2015 - Breach of Warranty Class Action Class Representatives Consumers Legal Remedies Act Express Warranty False Advertising Motion to Dismiss Putative Class Actions Unfair Competition

Data Breach Class Claims Survive Clapper

On appeal to the Seventh Circuit, a three-judge panel opinion written by Chief Judge Woods reversed the lower court. Remijas v. Neiman Marcus Group, LLC, No. 14-3122, 2015 WL 4394814, at *3 (7th Cir. July 20, 2015). The panel...more

9/29/2015 - Article III Causation Clapper v. Amnesty International Class Action Credit Monitoring Cyber Attacks Cyber Crimes Cybersecurity Data Breach Data Protection En Banc Review Fraudulent Charges Hackers Identity Theft Injury-in-Fact Neiman Marcus Personally Identifiable Information Petition for Writ of Certiorari Putative Class Actions SCOTUS Standing

Still a Target: Court Certifies Bank Class Claims Against Retailer Following Data Breach

Although Target has tentatively settled consumer data breach class action claims, the retailer remains in the crosshairs of the plaintiffs’ class action bar. On September 15, a Minnesota federal district court certified a...more

9/25/2015 - Banking Sector Class Action Credit Cards Cyber Attacks Cyber Crimes Data Breach Debit and Credit Card Transactions Debit Cards Derivative Suit Financial Institutions Fraud Alerts Fraudulent Charges Hackers Retailers Shareholder Litigation Shareholders Target Visa Inc

Circuit Split on Standing in Data Breach Class Actions Survives Clapper

Last Friday, the Seventh Circuit Court of Appeals denied a retailer’s petition for rehearing en banc of a three-judge panel opinion holding that plaintiffs whose credit card information was stolen in a data breach had...more

9/23/2015 - Appeals Article III Clapper v. Amnesty International Class Action Corporate Counsel Credit Cards Cyber Attacks Cyber Crimes Data Breach Debit Cards En Banc Review Hackers Identity Theft Neiman Marcus Retail Market SCOTUS Standing

First Circuit Holds an Unaccepted Rule 68 Offer Made Prior to Class Certification Won’t Moot Plaintiff’s Claims. Will Supreme...

The First Circuit recently joined the Second, Fifth, Seventh, Ninth, and Eleventh Circuits in holding that a Rule 68 offer made prior to class certification and rejected by plaintiff does not moot the plaintiff’s claim. The...more

9/11/2015 - Campbell Ewald v Gomez Class Action Class Certification Educational Institutions Genesis HealthCare Genesis Healthcare Corp. v. Symczyk Jurisdiction Privacy Laws Putative Class Actions Right to Privacy Rule 68 SCOTUS TCPA Unsolicited Faxes

Internet Savvy Senior Lacks Standing to Bring Website Privacy Putative Class Claims Against AARP

The United States District Court for the District of Columbia recently dismissed a putative class action alleging that AARP violated its website privacy policy by allowing Facebook and Adobe to collect personal information...more

8/20/2015 - AARP Adobe Article III Breach of Contract Class Action Consumer Protection Act Data Collection Facebook Personally Identifiable Information Privacy Policy Putative Class Actions Standing Websites

Eleventh Circuit Doubles Down on “No Class Tolling” Rule

The Eleventh Circuit has doubled down on its prior holding that a pending class action will not toll the statute of limitations for a later class action seeking to represent the same class. Plaintiff brought a class action...more

8/13/2015 - Class Action Statute of Limitations TCPA Tolling

Party Waived Right to Compel Arbitration by Waiting to Raise the Defense Until After Class Certification and Shortly Before Trial

After two years of litigation and extensive pretrial discovery, the Tenth Circuit held that cable company Cox Enterprises had waived its right to compel arbitration in an antitrust class action. The opinion is a cautionary...more

7/8/2015 - Arbitration Cable Television Providers Class Action Class Certification Discovery Motion to Compel

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