James Bogan III

James Bogan III

Kilpatrick Townsend & Stockton LLP

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Fifth Circuit refuses to address non-CAFA grounds for remand where defendant petitioned to appeal remand decision under CAFA (28...

Takeaway: The Class Action Fairness Act (CAFA) provides class action defendants with the means to secure federal jurisdiction over putative class actions filed in state court, as well as a mechanism to appeal decisions by...more

6/29/2022  /  CAFA , Class Action , Federal Jurisdiction , Jurisdiction , Putative Class Actions

SCOTUS displays short memory in rejecting the prejudice requirement for waivers of the right to arbitrate

Takeaway: In Morgan v. Sundance, Inc., --- S. Ct. ----, No. 21-328, 2022 WL 1611788 (May 23, 2022), the Supreme Court rejected the arbitration-specific rule requiring a finding of prejudice for a waiver of the right to...more

6/1/2022  /  Arbitration , Arbitration Agreements , Employment Litigation , Federal Arbitration Act , Morgan v Sundance , Motion to Compel , SCOTUS , Waivers

Data breach class actions: Southern District of New York dismisses action against health care providers for lack of standing

Takeaway: In a prior article, we reported on the Second Circuit’s decision in McMorris v. Carlos Lopez & Associates, LLC, 995 F.3d 295 (2d Cir. 2021), in which the court, ruling on an issue of first impression, set out a...more

5/26/2022  /  Article III , Class Action , Corporate Counsel , Cybersecurity , Data Breach , Hackers , Injury-in-Fact , Popular , Standing

BIPA class actions – liability of third-party vendors

Takeaway: We have written a number of articles about the explosion of class action litigation under Illinois’s Biometric Information Privacy Act (BIPA). See BIPA – an ideal “no injury” class action (Feb. 9, 2022) and BIPA...more

4/25/2022  /  Biometric Information , Biometric Information Privacy Act , Corporate Counsel , Data Collection , Data Privacy , Fingerprints

En banc Ninth Circuit reinstates class certification ruling in Bumble Bee price-fixing case, arguably solidifying a circuit split...

Takeaway: A year ago we wrote about the Ninth Circuit’s decision in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021), where a panel held that a district court abused its...more

4/22/2022  /  Class Action , Class Certification , Class Members , Predominance Requirement , Uninjured Class Members

Internet contracts – beyond clickwrap and browsewrap

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

4/15/2022  /  Browsewrap Agreement , Clickwrap Agreements , Contract Terms , Corporate Counsel , Online Contracts , Terms of Use , Websites

Eleventh Circuit clarifies procedural and appellate jurisdictional issues pertaining to CAFA’s local controversy exception

Takeaway:  The Class Action Fairness Act (CAFA) provides class action defendants with the means to secure federal jurisdiction over putative class actions filed in state court, as well as a mechanism to appeal decisions by...more

4/1/2022  /  Appeals , CAFA , Class Action , Jurisdiction , Putative Class Actions , Remand

Data breach class actions: Fifth Circuit rules that unsecured storage leading to a breach does not constitute “knowing disclosure”...

Takeaway:  Federal and state statutes that provide minimum damages awards for each statutory violation, such as the federal Telephone Consumer Protection Act and Illinois’s Biometric Information Privacy Act, provide ideal...more

3/28/2022  /  Class Action , Cybersecurity , Damages , Data Breach , DPPA

Ninth Circuit: proof of injury is a merits issue that can doom class treatment

Takeaway: When a district court certifies a damages class action, it often cites the long line of cases holding that, because damages for each class member can be determined after a class action trial on liability,...more

3/21/2022  /  Class Action , Class Certification , Class Members , Corporate Counsel , Damages , FRCP 23

Eleventh Circuit: putative class action may proceed against airline that did not disclose fee in its customer contracts

Takeaway:  Adhesion contracts have become ubiquitous in modern internet commerce, and we have written a number of articles about how businesses prepare their on-line contracts to shield themselves from liability generally and...more

3/1/2022  /  Breach of Contract , Class Action , Consumer Contracts , Exit Fees , Fees , Putative Class Actions

Tenth Circuit affirms dismissal of false advertising class action predicated on puffery

In a recent post, we reported on the Second Circuit’s affirmance of a district court order dismissing a false advertising class action based on alleged misrepresentations that amounted to nothing more than puffery. See...more

2/22/2022  /  Advertising , Class Action , False Advertising , Misrepresentation

BIPA – an ideal “no injury” class action

Takeaway:  Last year, we reported on a Seventh Circuit decision endorsing a “no injury” pleading strategy for violations of Illinois’s Biometric Information Privacy Act (BIPA).  The strategy, calculated to prevent the removal...more

2/9/2022  /  Biometric Information , Biometric Information Privacy Act , Class Action , Data Collection , Data Privacy , Personally Identifiable Information

Ninth Circuit: class representative may not tailor class definitions to accommodate personal and not class-wide merits issues

Takeaway: The individual claims asserted by a class representative – as well as the defenses that apply to those claims – form the foundation of any effort to certify a class under Rule 23. If the claims of the class...more

1/13/2022  /  Class Action , Class Certification , Class Members , Class Representatives , FRCP 23(b)(3)

SCOTUS to decide whether FAA preempts California’s prohibition on the arbitration of PAGA representative claims

We have written a number of articles about California’s restrictions on arbitration agreements, including California’s “McGill rule,” which provides that arbitration agreements cannot waive claims for “public injunctive...more

12/20/2021  /  Arbitration , Arbitration Agreements , Federal Arbitration Act , PAGA , Preemption , SCOTUS

Fifth Circuit examines mechanisms to secure federal jurisdiction in class action and arbitration contexts

Takeaway:  When litigating class certification and motions to compel arbitration, defense attorneys virtually always prefer federal over state courts.  In two cases involving home security provider ADT, L.L.C. (ADT), and a...more

12/20/2021  /  Arbitration , Class Action , Class Certification , Federal Arbitration Act , Motion to Compel

S.D. Fla.: concealment theory warrants class treatment under FDUTPA but not RICO

Takeaway:  Class actions brought under federal RICO present significant risks for defendants.  They present the opportunity for certification of nationwide or multi-state classes under a federal statute, and the remedies...more

12/20/2021  /  Class Action , Consumer Protection Laws , FDUTPA , RICO , Unfair or Deceptive Trade Practices

Ninth Circuit holds product label preemption defense requires evidence and does not extend to materially-different statements on...

Takeaway: The quickest, most efficient way to kill a putative class action remains a successful Rule 12 motion to dismiss. But in ruling on such a motion, a district court generally cannot stray beyond the allegations in...more

11/19/2021  /  Class Action , Motion to Dismiss , Poultry Products Inspection Act (PPIA). , Preemption , Product Labels

Eleventh Circuit distills federal preemption, FDUTPA safe harbor, and damages issues in Bombay Sapphire Gin putative class action

Takeaway: Antiquated laws can give rise to creative class actions. In the nineteenth century, the Florida Legislature criminalized the use of a food ingredient ultimately declared safe for consumption by the Food and Drug...more

11/19/2021  /  Class Action , FDUTPA , Preemption , Unfair or Deceptive Trade Practices , Wine & Alcohol

Ninth Circuit: California antitrust law does not apply to the claims of a nationwide class

Takeaway: Consumer class actions primarily target a damages remedy. In the antitrust context, state antitrust law provides the path to damages for indirect purchasers, because federal antitrust law bars indirect purchaser...more

11/1/2021  /  Antitrust Litigation , Antitrust Violations , Class Action , Class Certification , Damages , FRCP 23(b)(3) , Predominance Requirement

Third Circuit examines propriety of issue certification under Federal Rule 23(c)(4)

Takeaway: Federal Rule 23(c)(4) provides: “When appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Although class plaintiffs often seek “issue certification” as an...more

10/27/2021  /  Class Action , Class Certification , Class Members , FRCP 23(c)(4)

Third Circuit forbids “one-way intervention” in cases combining FLSA opt-in collective claims with Rule 23 opt-out claims

Takeaway: In theory, class litigation should be fair. Class members should not be permitted to see how a case will play out at trial before deciding whether to opt out of a damages class – a practice known as “one-way...more

10/27/2021  /  Class Action , Class Members , FLSA , Opt-Outs , Wage and Hour

Second Circuit false advertising class actions predicated on puffery are doomed to fail

Takeaway: Although a district court deciding a Rule 12 motion to dismiss must draw every inference in favor of a plaintiff, courts know puffery when they see it. In George v. Starbucks Corp., --- Fed. Appx. ----, No....more

9/29/2021  /  Class Action , False Advertising , Motion to Dismiss , Putative Class Actions , Starbucks

Ninth Circuit reexamines California’s McGill rule – which prohibits contractual waivers of “public injunctive relief” – through...

Takeaway: One would think that “public injunctive relief” – especially under California law – would be a broad remedy. Not so, according to the majority opinion in Hodges v. Comcast Cable Communications, LLC, --- F.4th...more

9/28/2021  /  Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers , Federal Arbitration Act , Injunctive Relief , Preemption , The McGill Rule

Second Circuit rules Trump parties forfeited arguments on appeal

Takeaway: The importance of preserving issues for appeal when litigating a case before a trial court – from the outset of the case all the way through post-trial motions – cannot be overstated. As a general matter, a...more

9/1/2021  /  Appeals , Arbitration , Class Action , Donald Trump , Equitable Estoppel , Motion to Compel

M.D. Pa. orders the production of cybersecurity report in data breach class action

Takeaway: Counsel for companies that suffer a data breach often hire an outside cybersecurity firm to remediate the breach and assist counsel in preparing for and defending against litigation. These companies typically take...more

9/1/2021  /  Class Action , Cyber Attacks , Cybersecurity , Data Breach , Data Protection , Data Security , Hackers , Popular
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JD Supra Privacy Policy

Updated: Dec 28, 2021:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

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Collection of Information

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We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

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How We Protect Your Information

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Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
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You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

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There are different types of cookies and other technologies used our Website, notably:

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JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

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If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

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Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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