A group of plaintiffs hoped to hit the reset button on the Ninth Circuit’s denial of their Rule 23(f) petition to appeal from an order striking class allegations in their case against Microsoft, the maker of the popular Xbox...more
A representative plaintiff who purchased Aveeno sunscreen products and baby bath products brought putative class actions against the products’ manufacturer, Johnson & Johnson, in the United State District Court for the...more
5/10/2017
/ Article III ,
Baby Products ,
CUTPA ,
False Advertising ,
FRCP 23(b)(2) ,
FRCP 23(b)(3) ,
Johnson & Johnson ,
Labeling ,
Natural Products ,
Personal Care Products ,
Putative Class Actions ,
Standing ,
Unfair or Deceptive Trade Practices
Two couples who own homes in central Florida attempted to bring a class action against a homebuilder, stemming from alleged violations of Florida’s building code. Section 553.84, Florida Statutes, provides for such a private...more
5/10/2017
/ Ascertainable Class ,
ASTM ,
Class Action ,
Commonality ,
Construction Defects ,
Construction Industry ,
Florida ,
FRCP 23 ,
FRCP 23(b)(3) ,
Homeowners ,
Predominance Requirement ,
Real Estate Development ,
Statute of Limitations ,
Superiority Claims
Home Depot filed a certiorari petition in the United States Supreme Court aimed at closing an emerging loophole in CAFA jurisprudence in various circuits. According to the petition, some circuits have “narrowly construed...more
Uber’s attempts to defeat a false advertising lawsuit recently failed. The Southern District of California largely denied the ride share company’s motion to dismiss and motion to strike class allegations. ...more
The Second Circuit Court of Appeals recently confronted (again) a situation where a defendant made an offer of judgment to the putative class representative to provide all of the relief available to the individual plaintiff....more
In In re FedEx Ground Package Sys., Inc. Employment Practices Litig., No. 3:05-CV-595 RLM, 2017 WL 632119 (N.D. Ind. Feb. 14, 2017), only one of a total of seven class representatives signed off on accepting a proposed class...more
On March 16, 2017, the Southern District of California certified a class action against the manufacturer of gingko biloba and Costco Wholesale Corporation, the seller.
Plaintiff alleged, on behalf of a putative class of...more
The Northern District of California recently denied a motion for class certification in a case against Chevron Corporation connected to a 2012 explosion at a Nigerian natural gas drilling rig and the environmental impacts of...more
The Middle District of Florida recently denied a plaintiff’s motion for class certification concerning claims that a collection agency illegally and intentionally sent collection correspondence to mortgagees whose debts...more
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
2/17/2017
/ 7-Eleven ,
All Natural ,
Anheuser-Busch ,
Beer ,
Chipotle Grill ,
Class Action ,
Class Certification ,
CLRA ,
Coca Cola ,
Dole Food ,
False Advertising ,
Fast-Food Industry ,
Federal Food Drug and Cosmetic Act (FFDCA) ,
Federal Meat Inspection Act (FMIA) ,
Food and Drug Administration (FDA) ,
Food Labeling ,
Food Manufacturers ,
Food Marketing ,
Food Supply ,
GMO ,
Grocery Stores ,
Injunctive Relief ,
Kraft ,
Lanham Act ,
Manufacturers ,
Monster Energy Drinks ,
Natural Products ,
Nutritional Supplements ,
Personal Care Products ,
PETA ,
Popular ,
Poultry Products Inspection Act (PPIA). ,
Preemption ,
Putative Class Actions ,
Restaurant Industry ,
Slack-Fill Suits ,
Starbucks ,
Unfair Competition Law (UCL) ,
Whole Foods ,
Wine & Alcohol
Even before certification of a class under Rule 23(a)-(b), the district court has authority to appoint “interim counsel” under Rule 23(g)(3) “to act on behalf of a putative class before determining whether to certify the...more
Following the United States Supreme Court’s decision in Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) – which held that Article III standing requires a concrete injury, even when an injury has otherwise been established...more
2/9/2017
/ Article III ,
Class Action ,
Class Certification ,
Corporate Counsel ,
FRCP 23 ,
FRCP 23(b)(3) ,
Injury-in-Fact ,
Invasion of Privacy ,
Robocalling ,
Spokeo v Robins ,
Standing ,
TCPA ,
Telecommunications
On January 31, President Trump announced that Judge Neil Gorsuch of the Tenth Circuit Court of Appeals would be nominated for the United States Supreme Court. We took a look at those opinions authored by Judge Gorsuch on the...more
2/6/2017
/ Abuse of Discretion ,
Article III ,
Attorney General ,
BP ,
CAFA ,
Class Action ,
FRCP 23(b)(2) ,
Judicial Appointments ,
Justice Scalia ,
Neil Gorsuch ,
Nominations ,
SCOTUS ,
Sherman Act ,
Standing ,
Trump Administration
In a reversal of the usual scenario where a plaintiff seeks and a defendant resists class discovery, the Southern District of Ohio granted a defendant’s motion to compel answers to its interrogatory regarding who was included...more
1/30/2017
/ Banking Sector ,
Class Action ,
Class Certification ,
Credit Unions ,
Discovery ,
Interrogatories ,
Motion to Compel ,
Punitive Damages ,
RESPA ,
Reversal ,
Work-Product Doctrine
In Spokeo, the Supreme Court declined to answer the certified question of whether a plaintiff suing for violation of a federal statute satisfied Article III’s standing requirement by alleging no concrete injury as a result of...more
1/26/2017
/ Article III ,
Cable Communications Protection Act (CCPA) ,
Cable Operators ,
Class Action ,
Class Certification ,
Customer Information ,
Fair Credit Reporting Act (FCRA) ,
IKEA ,
Injury-in-Fact ,
Personally Identifiable Information ,
Song-Beverly Credit Card Act ,
Spokeo v Robins ,
Standing ,
Time Warner
On November 22, the Eleventh Circuit clarified that Class Action Fairness Act (CAFA) jurisdiction is not eliminated when the class claims are dismissed before the class is certified.
The plaintiff, an Alabama trucking...more
12/7/2016
/ Article III ,
CAFA ,
Class Action ,
Class Certification ,
Jurisdiction ,
Oil & Gas ,
Settlement ,
Standing ,
Subject Matter Jurisdiction ,
Transportation Industry ,
Trucking Industry
In two recent cases, California and Florida district courts reached divergent views on whether to permit wide-ranging class discovery prior to a certification decision. Interestingly, both decisions involved Ocwen companies....more
A defendant who lost a bench trial in a certified class case alleging that it violated the Electronic Funds Transfer Act by forcing the plaintiff and class to use electronic funds transfer services to obtain loans sought to...more
12/7/2016
/ Article III ,
Banking Sector ,
CashCall ,
Class Action ,
Consumer Lenders ,
EFTA ,
EFTs ,
Fees ,
Loans ,
Spokeo v Robins ,
Standing
A Northern District of California judge refused to preliminarily approve a class settlement of Uber customers who used its “Rideshare Services” in which Uber would have paid class members $28.5 million. The court was...more
On August 31, the Ninth Circuit continued its trend of certifying “no injury” classes, this time in the context of an Agricultural Workers’ Protection Act claim that a Washington state fruit and vegetable farm violated the...more
On August 30, the Northern District of California thwarted a disgruntled timeshare owner’s attempt to arbitrate her dispute against a timeshare developer on a classwide basis. A timeshare purchaser alleged that Wyndham, the...more
Lawyers seeking to settle class actions pending in federal court by dismissing and refiling in state court beware! In two recent orders, a federal judge in the Western District of Arkansas ruled that the attorneys...more
On July 6, the Sixth Circuit addressed a question apparently left open by the Supreme Court in its recent Campbell-Ewald case. In Campbell-Ewald, the Supreme Court ruled that an unaccepted Rule 68 offer of judgment did not...more
The Seventh and Eighth Circuits both addressed motions to decertify classes the week of July 5—with divergent results. These cases illustrate the deference afforded district courts’ class certification determinations. Both...more
7/19/2016
/ Abuse of Discretion ,
Burden of Proof ,
Class Action ,
Class Certification ,
Eighth Amendment ,
Fourteenth Amendment ,
Hiring & Firing ,
Predominance Requirement ,
Prisoners ,
Termination ,
WARN Act