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Circuit Split on Incentive Payments to Class Representatives Deepens

Two years ago, in Johnson v. NPAS Solutions, LLC, the Eleventh Circuit upended decades’ worth of precedent by categorically forbidding incentive payments to class representatives in class action settlements...more

What to Expect When You’re Expecting a Biometric Class Action: Settlements

Biometric class actions have proliferated in recent years — and with more states eyeing comprehensive data privacy legislation, companies that use biometric data should plan for the surge to grow. With rare exceptions, these...more

Setting Boundaries for the Field of Discretion: Fifth Circuit Clarifies that Daubert Standard Applies to Expert Opinions at Class...

In a decision that narrows the path to class certification in federal court, the Fifth Circuit has held that a plaintiff must clear the Daubert hurdle when expert evidence is relevant to the decision of a federal court to...more

Eleventh Circuit Rejects Administrative Feasibility as a Requirement for Class Actions

Can a plaintiff represent a class without showing that there’s a feasible way to identify the absent class members? In its recent decision in Cherry v. Dometic Corp., the Eleventh Circuit has become the latest circuit to...more

No Worse for Butter: Ninth Circuit Says Popcorn’s “Secret” Ingredient Does Not Confer Article III Standing

The Ninth Circuit recently determined that the mere presence of artificial trans fats in popcorn (i.e., the “butter” in butter flavored popcorn) does not create an injury that confers Article III standing. In McGee v. S-L...more

Competing Duties and Courts: 11th Circuit Clarifies Procedures and Counsel Duties in Competing Class Actions

The 11th Circuit recently addressed the issue of competing or overlapping class actions, which often create problems for both the plaintiffs’ counsel and the defense. In Medical and Chiropractic Clinic, Inc. v. Oppenheim, the...more

The En Banc 11th Circuit Clarifies “Risk of Identity Theft” Standing

In a decision that narrows the path to federal court for plaintiffs seeking statutory damages with no actual harm, the full 11th Circuit has held that a plaintiff must plead a concrete injury to bring a claim based on an...more

11th Circuit Forbids Incentive Payments

You need to read Johnson v. NPAS Solutions, LLC. This recent decision from the 11th Circuit fundamentally changes the rules of obtaining approval for class action settlements. Johnson’s introduction emphasizes that the...more

D.C. Circuit Avoids Decisive Ruling on Personal Jurisdiction in Class Actions

We have repeatedly mentioned the long-awaited decision in Molock v. Whole Foods Market Group, Inc. from the District of Columbia Circuit. While we hoped this opinion would finally provide some circuit-level clarity about how...more

“I told you never to call me here”: Eleventh Circuit Decertifies TCPA Class Containing Absent Class Members Without Article III...

The Eleventh Circuit last month issued a significant class action opinion in Cordoba v. DirectTV, LLC, vacating a class certified in a TCPA class action and remanding the case. The issue underlying the court’s decision was...more

It’s None of Your Business: Sixth Circuit Says Arizona Lacks Article III Standing to Intervene to Challenge a Class Settlement

Does a state, whose citizens are among the absent class members in a class action settlement, have Article III standing to challenge the supposed unfairness of the settlement? In Chapman v. Tristar Products, Inc., the Sixth...more

“Who’s Gonna Pay for All This?” Can Prevailing Litigants Have Their E-discovery Charges Taxed as Costs Against Their Losing...

Parties in today’s complex litigation world, and their counsel, need no reminder of the ubiquity of electronic discovery and the tremendous expense it occasions. Even before 2006, when “electronically stored information”...more

One Spam Text Does Not Confer Standing in the Eleventh Circuit

One unwanted text message does not confer standing in federal court in the Eleventh Circuit — so holds the court in Salcedo v. Hanna. The case confirms that one text message is qualitatively, and jurisprudentially, different...more

A Quick Study in Doxing and Personal Jurisdiction: Vangheluwe v. GotNews

In the digital age, the internet not infrequently stretches the bounds of traditional jurisprudence and raises tricky new questions. An example from earlier this year is Vangheluwe v. GotNews, LLC, where a federal court in...more

Ask and You Shall Be Deemed to Have Consented to Receive: The Eleventh Circuit Affirms TCPA Fax Summary Judgment

Consent is the most powerful weapon companies have against TCPA liability, and a recent Eleventh Circuit opinion illustrates how. In Gorss Motels, Inc. v. Safemark Systems, L.P., the Eleventh Circuit affirmed summary judgment...more

Yes, But Were You Hurt? Another Data Breach Case Dismissed for Lack of Damages

While a war rages on the issue of standing in data breach cases, the need to prove damages is presenting an even greater hurdle for plaintiffs, as we have noted previously. One clear illustration of this trend is Attias v....more

The Eleventh Circuit Finds Class Rep Has Standing to Settle a FACTA Class Action

Bucking a recent trend and departing from both the Second Circuit’s Katz decision and the Third Circuit’s Kamal decision, the Eleventh Circuit found that a plaintiff had standing to settle a FACTA claim on behalf of a class....more

Another Punt: The Supreme Court Denies Certiorari in the Zappos Case

We wrote recently about how the certiorari petition in Zappos.com, Inc. v. Stevens was a possible vehicle to put the question of standing in data breach cases back before the Supreme Court. Alas, the Court denied the...more

Frank v. Gaos: Remand, but Little Guidance.

Yesterday, the Supreme Court sent Frank v. Gaos back to the Ninth Circuit to address the issue of standing under Spokeo. Frank involved allegations of privacy violations. Plaintiffs brought class action claims against...more

Third Circuit Reinforces That FACTA Class Actions Remain Ideal Targets for Spokeo Challenges

Almost one year ago, we wrote about the impact of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) on Fair and Accurate Credit Transaction Act (FACTA) class actions and offered practical pointers for defendants confronting...more

Injury-in-Fact vs. Actual Damages — Avoiding a Jurisdictional Sideshow in Data Breach Class Actions by Challenging Damages, Not...

Following the Supreme Court’s ruling in Spokeo v. Robins, which held that federal plaintiffs alleging a statutory violation must have suffered a real, concrete injury in order to have Article III standing, many defendants...more

Practical Effects of the Rule 23 Amendments – Really, Not Very Much

The December 2018 revisions to Rule 23 are relatively minor, and early cases applying the amended rule confirm that no major changes have occurred. The Southern District of Iowa summed up the theme in Swinton v. SquareTrade,...more

Bristol-Myers Squibb Continues to Be a Mixed Bag in the Class Action Context

Courts are still going both ways on applying Bristol-Myers Squibb to class actions. Two recent decisions highlight this split. The first—and we’ll always start with the good news—comes out of the District of Massachusetts...more

Standing in Data Breach Cases Likely Heading Back to the Supreme Court

Data breach plaintiffs often have a very difficult time stating a concrete injury, and courts have wrestled with whether these plaintiffs can file suit in federal court. We have been watching this issue and writing about it...more

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