James Bogan III

James Bogan III

Kilpatrick Townsend & Stockton LLP

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Class Action
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RICO class actions: District of New Jersey dismisses with prejudice federal RICO claims asserted by indirect purchasers

Takeaway: Class actions brought under federal RICO present significant risk, because they present the opportunity for certification of a nationwide class under a federal statute and the remedies provided under federal RICO –...more

7/9/2020  /  Class Action , Dismissal With Prejudice , RICO , The Clayton Act

Sixth Circuit: incorporation of AAA Rules delegates “gateway” issue of arbitrability to the arbitrator

Takeaway: We have written a number of articles about class arbitration. See, e.g., Fifth Circuit: arbitrator’s decision to conduct class arbitration cannot be vacated (May 11, 2020). A key issue is whether the parties’...more

7/1/2020  /  American Arbitration Association , Arbitration , Arbitration Agreements , Class Arbitration

Ninth Circuit: Lost interest of under $4 sufficient to confer standing in consumer class action

Takeaway: When a company discovers it has been imposing improper charges, it might proactively seek to remedy the situation by refunding the charges. To avoid litigation, however, the company must consider including...more

6/29/2020  /  Article III , Class Action , Corporate Counsel , Injury-in-Fact , Putative Class Actions , Standing

Design defect class actions: split Ninth Circuit panel affirms exclusion of common defect expert testimony

Takeaway: Federal appellate courts review a district court’s rulings on motions for class certification and to exclude expert testimony for an abuse of discretion. The Ninth Circuit’s recent decision in Grodzitsky v....more

5/27/2020  /  Class Action , Class Certification , Design Defects , Expert Testimony

Big pharma antitrust class actions: Third Circuit gives primer on predominance in vacating class certification

Takeaway: Class action litigation tends to be complicated, especially for trial courts resolving motions for class certification. These motions usually require courts to pour through dense briefing and evidentiary...more

5/18/2020  /  Class Action , Class Certification , Pharmaceutical Industry , Predominance Requirement

Fifth Circuit: arbitrator’s decision to conduct class arbitration cannot be vacated

Takeaway: A lot of ink has been spilled on the issue of class arbitration, but this much is clear: If a federal court decides the class arbitration issue, then the proponent of class arbitration should lose, unless the...more

5/11/2020  /  Arbitration , Class Arbitration , Federal Arbitration Act , FLSA , Vacated

Data breach class actions: Illinois federal court dismisses negligence claims for lack of common law duty and based on the...

Takeaway: In a data breach class action, the typical panoply of claims asserted include tort claims (such as negligence and negligence per se), contractual claims (such as claims for breach of express and implied contracts),...more

5/1/2020  /  Class Action , Corporate Counsel , Cybersecurity , Data Breach , Data Protection , Economic Loss Doctrine , Negligence , Popular

Second Circuit rejects personal jurisdiction over claims by out-of-state class plaintiffs and again quashes claim of “reasonable...

The issue of personal jurisdiction in class action litigation continues to be addressed by the federal appellate courts. We recently published an article about the Seventh Circuit’s decision in Mussat v. IQVIA, No. 19-1204,...more

4/13/2020  /  Class Action , Class Certification , Dunkin' Donuts , Personal Jurisdiction

Class action standing: Ninth Circuit holds members of a damages class must demonstrate Article III standing

Takeaway: The Ninth Circuit recently held “that each class member must have standing to recover damages.” Ramirez v. TransUnion, LLC, 951 F.3d 1008 (9th Cir. 2020). But the panel held this requirement only applies to the...more

4/1/2020  /  Article III , Class Action , FCRA , Standing

False advertising class actions – “complete multivitamin” misrepresentation enough to state claims under New Jersey and Florida...

Takeaway: Where a plaintiff alleges that product labeling does not comply with pronouncements by the Food & Drug Administration (FDA), it can be difficult for a class defendant to obtain the dismissal of false advertising...more

3/11/2020  /  Class Action , False Advertising , Misrepresentation , Product Labels

E.D. Texas rules that fraudulent overcharge theory supplies standing for civil RICO class action

Takeaway: To have standing to sue in federal court, Article III of the Constitution requires an injury in fact caused by the challenged conduct. Federal RICO standing requires a bit more: a RICO plaintiff must demonstrate an...more

2/28/2020  /  Article III , Boeing , Class Action , Fraud , RICO , Southwest Airlines , Standing

RICO class actions: D.N.J. rejects claim for private injunctive relief under Federal RICO

Takeaway: The issue of whether a federal RICO plaintiff may obtain equitable relief may be the longest-running circuit split under the federal RICO statute. In Scheidler v.National Organization for Women, 537 U.S. 393 (2003),...more

2/28/2020  /  Class Action , Injunctive Relief , Pharmaceutical Industry , RICO

Ninth Circuit deepens circuit split in pharmaceutical industry-specific RICO proximate cause ruling

Takeaway: To have standing to assert a civil RICO claim, federal RICO’s proximate cause requirement demands that there be a “direct relation” between the RICO violation and injury. ...more

2/3/2020  /  Fraud , Health Care Providers , Pharmaceutical Industry , Physicians , Prescription Drugs , RICO

Second Circuit endorses class arbitration

Takeaway: The concept of class arbitration has recently faced stiff headwinds. In Lamps Plus, Inc. v. Varella, 139 S. Ct. 1407 (2019), the Supreme Court ruled that a party cannot be required to participate in a class...more

1/3/2020  /  American Arbitration Association , Arbitration , Arbitration Agreements , Class Arbitration , Corporate Counsel

E.D.N.Y.: Class certification evidence must be admissible

Takeaway: In a prior post, we reported on the Ninth Circuit’s decision in Sali v. Corona Regional Medical Center, 889 F.3d 623 (9th Cir. 2018) that class certification evidence need not be admissible (Ninth Circuit deepens...more

9/17/2019  /  Admissibility , Admissible Evidence , Class Action , Class Certification , Evidence

D.C. Circuit denies class certification where putative antitrust class includes uninjured class members

In a prior post [First Circuit addresses an issue that continues to vex (and split) the circuits: should a class be certified that includes uninjured class members? (October 24, 2018)], we reported on a First Circuit...more

9/3/2019  /  Antitrust Litigation , Class Action , Class Certification , Class Members

Class-wide damages model: Ninth Circuit cabins Comcast

Takeaway: In a prior post – Leveraging Comcast – beating predominance where challenged product has some value (April 16, 2019) – we reported on a decision by Judge Lucy Koh of the Northern District of California...more

8/22/2019  /  Automotive Industry , Class Action , Comcast v. Behrend , Damages , FRCP 23(b)(3) , Nissan , Predominance Requirement , Product Defects

California Supreme Court adopts Seventh Circuit's weak view of ascertainability

Takeaway: The ascertainability requirement for class actions has divided both California and federal appellate courts. In Noel v. Thrifty Payless, Inc., --- P.3d ----, No. S246490, 2019 WL 3403895 (CA July 29, 2019), the...more

8/15/2019  /  Ascertainable Class , Class Action , Class Certification , FRCP 23 , FRCP 23(b)(3)

Second Circuit again affirms dismissal of diet soda consumer fraud class action

Takeaway: In prior posts, we have reported on the dismissals of putative class actions asserting that the “diet” in “diet soda” is false or misleading. See Second Circuit: another nail in the diet soda coffin (April 30,...more

7/30/2019  /  Class Action , Consumer Fraud , Dismissals , Misleading Statements

CAFA Third Circuit Holds That Denial Of Class Certification Does Not Divest District Court Of CAFA

Takeaway: A federal court should not lose jurisdiction under the Class Action Fairness Act (CAFA) when it denies a motion for class certification. In a prior post – Getting it wrong – remanding a removed class action back...more

7/24/2019  /  CAFA , Class Action , Class Certification , Putative Class Actions , Remand

Class arbitration is – almost – dead

Recently, the Supreme Court imposed yet another roadblock to class arbitration in Lamps Plus, Inc. v. Varela. Relying on Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., the Court ruled that ambiguous language in an...more

7/22/2019  /  Arbitration , Arbitration Agreements , Class Arbitration , Federal Arbitration Act , Lamps Plus Inc v Varela

Data breach class actions – Eighth Circuit affirms merits dismissal in the SuperValu data breach litigation

Takeaway: In the wake of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), defendants in data breach class actions regularly move to dismiss on standing grounds, arguing the complaint’s allegations do not plausibly allege an...more

6/26/2019  /  Class Action , Corporate Counsel , Cybersecurity , Data Breach , Data Protection , Dismissals , Motion to Dismiss , Popular , Standing

Trade Secret Preemption and Insurance Coverage for Trade Secret and Related Claims

Virtually every state has adopted The Uniform Trade Secrets Act (“UTSA”) in one form or another. As enacted, the UTSA typically preempts “other laws of this State providing civil remedies for misappropriation of trade...more

6/24/2019  /  Intellectual Property Litigation , Intellectual Property Protection , Misappropriation , Trade Secrets , Uniform Trade Secrets Acts

Ninth Circuit upholds arbitration provision testing the “outer limits” of what constitutes an enforceable arbitration agreement

Takeaway: Adhesion contracts are ubiquitous in modern internet commerce, and the rules of contract formation are generally the same for paper and on-line contracts. Parties are generally bound by terms and conditions...more

6/17/2019  /  Arbitration , Arbitration Agreements , Class Action , Contract of Adhesion

Seventh Circuit holds Zestimates nonactionable opinions

A consumer fraud class action must be grounded on allegations of false or deceptive statements of fact. Opinions, including estimates clearly labeled as estimates, do not constitute statements of fact that can support a...more

6/5/2019  /  Class Action , Consumer Fraud , Unfair or Deceptive Trade Practices , Zillow
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JD Supra Privacy Policy

Updated: May 25, 2018:

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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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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.

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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
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

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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
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

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Contacting JD Supra

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We use cookies and other tracking technologies to:

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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.

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