On first glance, one might think that packaged tuna, price-fixing conspiracies, and uninjured class members have little in common. A closer look at the recent Ninth Circuit odyssey of Olean Wholesale Grocery Cooperative, Inc....more
Over the past several years, the U.S. Court of Appeals for the 9th Circuit appeared poised to sanction a generous approach to certifying proposed classes under Rule 23 of the Federal Rules of Civil Procedure. Recently,...more
INTRODUCTION - What do you get when you cross allegedly defective refrigerators, a dangerous chemical agent, and a hotly contested topic in class action practice? The answer is: a precedential opinion from the U.S. Court of...more
Lessons Learned From the Home Affordable Modification Program for the Next Wave of Mortgage Class Action Litigation - As the country grapples with the impacts of the COVID-19 pandemic, financial service providers should hold...more
The CARES Act’s Impact on Furnisher Liability Under the Fair Credit Reporting Act - As part of the federal government’s efforts to provide relief from the economic impact of the COVID-19 pandemic to consumers, Congress took...more
The novel coronavirus (“COVID-19”) has caused severe business disruptions throughout Massachusetts. Many companies doing business in Massachusetts have been forced to indefinitely shut their doors, while others are facing...more
In 2004, the Supreme Court of Texas first addressed the issue of whether an arbitrator or a judge decides if an arbitration agreement permits (or prohibits) class arbitration....more
In their 2013 concurrence in Oxford Health Plans LLC v. Sutter, Justice Samuel Alito, joined by Justice Clarence Thomas, questioned whether absent class members “will be bound by the arbitrator’s ultimate resolution of th[e]...more
In a recent 8-3 en banc decision, the Ninth Circuit affirmed the district court’s approval of an estimated $210 million class action settlement in In re Hyundai and Kia Fuel Economy Litigation....more
The U.S. Supreme Court has issued numerous decisions over the past decade addressing arbitration agreements. In one of the Roberts Court’s first forays into the arbitration arena, the Court held that class or collective...more
Less than a week apart, the U.S. Courts of Appeals for the Tenth and Eleventh Circuits issued similar rulings regarding class arbitration. Both courts examined the question of whether the incorporation of American Arbitration...more
The U.S. Supreme Court has again emphasized that parties to arbitration agreements have great latitude in structuring their agreements, including the ability to require bilateral — as opposed to class — arbitration. ...more
6/4/2018
/ Arbitration ,
Arbitration Agreements ,
Class Action Arbitration Waivers ,
Epic Systems Corp v Lewis ,
Ernst & Young v Morris ,
Federal Arbitration Act ,
Murphy Oil v NLRB ,
NLRA ,
NLRB ,
Remand ,
Reversal ,
Savings Clause ,
SCOTUS
In Stolt-Nielsen S.A. v. AnimalFeeds International Corp., the U.S. Supreme Court held that “a party may not be compelled” under the Federal Arbitration Act (“FAA”) “to submit to class arbitration unless there is a contractual...more
In what appears to be a first-of-its-kind ruling, the District Court for the Southern District of New York recently concluded that a federal district court has the authority to vacate an arbitrator’s class certification award...more
On October 5, 2017, the Consumer Financial Protection Bureau (the “CFPB”) released its final rule targeting what it refers to as “payday debt traps” (the “Rule”). Among other things, the Rule will require lenders to make...more
Employers that have class- or collective-action waivers in their employee arbitration agreements (or are contemplating implementing them) need not wait much longer for the U.S. Supreme Court to decide whether such waivers are...more
The United States Supreme Court recently granted certiorari in a trio of cases—Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP v. Morris, No. 16-300; and NLRB v. Murphy Oil USA Inc., No. 16-307—to decide on a...more
1/30/2017
/ Arbitration ,
Arbitration Agreements ,
Certiorari ,
Class Action ,
Class Action Arbitration Waivers ,
Collective Actions ,
Ernst & Young ,
Federal Arbitration Act ,
Mandatory Arbitration Clauses ,
Murphy Oil USA ,
NLRA ,
NLRB ,
SCOTUS
Over the past four years, the federal circuit courts have frequently been called upon to address the proper role and scope of the “ascertainability” requirement in the class certification analysis. The results have varied by...more
On June 2, 2016, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) proposed a new rule under its authority to supervise and regulate certain payday, auto title, and other high-cost installment loans (the “Proposed...more
Congress enacted the Federal Arbitration Act in the 1920s to deter hostility toward arbitration. Despite numerous Supreme Court rulings over the decades upholding that goal, arbitration continues to face hostility. The...more
Is the availability of class-wide arbitration a “gateway” question for courts, or are arbitrators charged with such a decision once a matter is compelled to them? In Dell Webb Communities, Inc. v. Carlson, the Fourth Circuit...more
Many of us have had a similar experience. We receive a gift card, put it in a “safe” place with other gift cards, and forget it exists. Inevitably, we uncover the gift card and find ourselves asking questions such as: Does...more
Guaranties are common practice in the commercial lending industry. Typically, the borrower is a small corporation, limited liability company, or similar entity that is thinly capitalized with few (likely encumbered) assets....more
The U.S. Court of Appeals for the Third Circuit (the “Court”) has spoken again on the issue of “who decides” whether parties must arbitrate a dispute on a classwide basis. In 2014, the Court ruled that “unless the parties...more
The concept of “ascertainability” serves as an important arrow in the quiver of a defendant seeking to prevent certification of a putative class action in federal court. Recently, the issue of what a plaintiff must...more