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RICO class actions in the employment context – Georgia federal court denies motion to dismiss Georgia RICO claim based on...

Takeaway: A civil RICO claim – especially one framed as a putative class action – can be a powerful cause of action, given the civil remedies for RICO violations, which include treble damages and mandatory fee-shifting. ...more

Sixth Circuit vacates certification of ten statewide classes against Nissan based on district court’s failure to ascertain common...

Takeaway: The Sixth Circuit recently emphasized how demanding Rule 23’s commonality requirement can be. In In re Nissan North America, Inc. Litigation, --- F.4th ----, No. 23-5950, 2024 WL 4864339 (6th Cir. Nov. 22, 2024),...more

RICO class actions – Northern District of Georgia sends Georgia RICO class action based on federal predicates back to state court

Takeaway: RICO defendants usually move to dismiss civil racketeering claims. And when it comes to motions to dismiss, RICO defendants almost always prefer to be in federal – as opposed to state – court. Accordingly,...more

11/27/2024  /  CAFA , Class Action , IRS , Motion to Dismiss , RICO

E.D.N.Y. deals blow to plaintiffs’ claims – including mislabeling, false advertising and RICO claims – in multidistrict litigation...

Takeaway: When it comes to mislabeling and related claims, and especially when human safety is not implicated, express preemption under the federal Food, Drug and Cosmetic Act (FDCA) remains a powerful tool in the hands of...more

Eighth Circuit rejects district court’s certification at all costs approach in securities fraud case

Takeaway: Sometimes it seems a district court is determined to certify a class at all costs. In Ford v. TD Ameritrade Holding Corp., --- F.4th ----, No. 22-3232, 2024 WL 4021358 (8th Cir. Sep. 3, 2024), the district court...more

Conflicting online terms – E.D. Va. rules that “arbitrability delegation” clause requires that arbitrator resolve conflict

Takeaway: We have written many articles about the use of consumer-facing terms containing mandatory arbitration agreements. “Clickwrap” agreements – agreements that require consumers affirmatively to accept terms – are the...more

Fine print prevails: Second Circuit affirms dismissal of deceptive business act claims against Stanley Black & Decker

Takeaway:  Is a label clearly false or only ambiguously false?  Where a label is ambiguous – and therefore subject to an interpretation that would render it deceptive – the ambiguity can be clarified by fine print.  The fine...more

Second Circuit rules that “account update” mailed by bank failed to bind customer to arbitration agreement/class action waiver

Takeaway: We have written many articles about how businesses seek to enter enforceable arbitration agreements containing class action waivers with their customers, whether through “browsewrap” or “clickwrap” agreements or by...more

Second Circuit reverses district court, ruling that website interface provided reasonable notice of arbitration agreement and that...

Takeaway: Technology advances. Business processes evolve. Internet transactions become increasingly ubiquitous. Contract formation, however, remains an old-fashioned concept. An Internet consumer must, at a minimum, be...more

District of Rhode Island invalidates “naked” class action waiver on public policy grounds

Takeaway: We have written many articles about including class action waivers in consumer-facing arbitration agreements as a means of reducing class action litigation risk. The key to enforcing those waivers is the...more

Seventh Circuit: disputed issues of fact require a trial on the issue of whether an account user received notice of an agreement...

Takeaway: We have written many articles about the implementation of arbitration agreements and class action waivers as mechanisms to reduce exposure to class action litigation. One of the most effective means of...more

Second Circuit: presumption of fairness no longer applies to class settlements negotiated at arm’s length

Takeaway:  When evaluating the fairness of a proposed class settlement, Federal Rule 23(e)(2) requires a district court to take into account, among other considerations, the terms of any proposed award of attorneys’ fees and...more

Ninth Circuit: conjoint analysis fails to show class-wide damages for fraud and negligent misrepresentation claims

Takeaway:  We have written about the use of survey-based conjoint analyses to prove class-wide damages.  See Ninth Circuit summarily reverses exclusion of conjoint survey with “major flaws” (January 18, 2022).  Recently,...more

Data breach class actions: Eleventh Circuit rules that an employer has a common law duty under Georgia law to safeguard employees’...

Takeaway:  We have written several articles about the development of Georgia common law in data breach litigation.  In one article, we discussed the Georgia Supreme Court’s decision in Department of Labor v. McConnell, 305...more

Sixth Circuit solidifies circuit split by rejecting “juridical link” exception to class action standing

Takeaway: Federal Rule 23 authorizes representative litigation in the form of class actions that satisfy its various requirements. The policy underlying the rule is efficiency. For example, the numerosity element (Rule...more

Eleventh Circuit strikes again, vacating class settlement for lack of standing

Takeaway: We have written about Eleventh Circuit decisions on Article III standing and its relationship to the proper approval of a class action settlement. See Eleventh Circuit holds that every class member must have...more

RICO class actions: D. Conn. rules that legal entity must have or share a common fraudulent purpose to qualify as a RICO...

Takeaway: There are, essentially, two ways to defeat a RICO class action: through the denial of class certification or by the dismissal of the RICO claims on the merits. We have written a number of articles about both the...more

Eleventh Circuit Grants en banc Review to Resolve Controversial TCPA Standing Ruling [Video]

Atlanta Partner Jay Bogan recently covered the Eleventh Circuit in his new Class Action blog post discussing the TCPA Standing Ruling....more

3/27/2023  /  Class Action , Standing , TCPA

Eleventh Circuit grants en banc review to resolve controversial TCPA standing ruling

We have written about the Eleventh Circuit’s controversial ruling in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019). See Eleventh Circuit reinvigorates Spokeo in single text message TCPA case (Sep. 11, 2019). In Salcedo,...more

Fifth Circuit Affirms District Court’s Striking of Class Allegations [Video]

Partner Jay Bogan discusses the Fifth Circuit affirming of district court’s striking of class allegations and dismissal of inadequately alleged fraud-based claims....more

2/6/2023  /  Class Action , Dismissals , Fraud

Fifth Circuit affirms district court’s striking of class allegations and dismissal of inadequately alleged fraud-based claims

Takeaway:  We have written several articles about motions to strike class action allegations. See, e.g., Motions to strike: Eighth Circuit reverses district court refusal to strike class allegations (July 29, 2021).  In a...more

Ninth Circuit rules that excessive, aggregated awards of statutory damages are subject to review on constitutional due-process...

Takeaway: Statutes that impose per-violation statutory damages, like the Telephone Consumer Protection Act (TCPA), can lead to astronomical class action verdicts. In Wakefield v. ViSalus, Inc., 51 F.4th 1109 (2022), a Ninth...more

12/21/2022  /  Damages , Due Process , Statutory Damages , TCPA

SCOTUS grants cert. to determine whether an appeal of an order denying a motion to compel arbitration automatically stays district...

Takeaway: To control litigation risk, a business might include an arbitration clause and class action waiver in its consumer-facing terms and conditions. When a consumer files a putative class action against that business,...more

Data breach class actions: Ninth Circuit addresses forum selection and personal jurisdictional issues in case against foreign...

Takeaway:  Businesses oftentimes rely on contractual provisions to shield themselves from litigation risk.  But some provisions are more effective than others.  In Baton v. Ledger SAS, No. 21-17036, 2022 WL 17352192 (9th Cir....more

Fifth Circuit: civil RICO class action against Southwest Airlines and Boeing cannot stand for lack of Article III injury-in-fact

Takeaway: Over two years ago, the Eastern District of Texas denied a motion to dismiss a putative civil RICO class action alleging an “overcharge-by-fraud” theory, where the class representatives appeared to have suffered no...more

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