Practice Points

2022

U.S. Supreme Court Eliminates Prejudice Requirement from Waiver of Arbitration Rights Calculus
By Peter Cho – June 8, 2022
The significant ruling has broad implications for companies that include standard arbitration clauses in their employment contracts.

A Reminder That Rule 23 Requires Hearings on All Proposed Class Settlements, Even If There Are No Objectors
By Joseph A. Fischetti – January 13, 2022
Defense attorneys should make efforts to ensure that district courts hold fairness hearings even when nobody objects to a settlement.

CAFA Coupons and Judicial Scrutiny of Pre-Certification Settlements in the Ninth Circuit
By Jason Kellogg and Tony Bell – January 4, 2022
The court provides guidance on the definition of “coupon” under CAFA and emphasizes that pre-certification settlements warrant heightened scrutiny.

2021

Ninth Circuit Applies Heightened Scrutiny to Approval of Pre-Certification Class Settlement
By D. Scott Carlton and Philip Hwang – October 19, 2021
Practitioners should closely examine the economic realities of a class settlement when determining the settlement’s monetary value.

Exacerbating Circuit Split, Sixth Circuit Holds Inadmissible Evidence May Be Relied on at Class Certification Stage
By D. Scott Carlton and Kiaura Clark – May 4, 2021
Specifically, the court held that use of unauthenticated and ultimately inadmissible non-expert summary-report logs were proper evidence to support granting class certification.

Eighth Circuit Identifies Damages Hurdle for Payment for Order Flow Class Certification
By Nick Morgan, D. Scott Carlton, Kyle Jones, and Michael Mottweiler – April 30, 2021
A claims process with $11 million left over. Who gets the $11 million?

A Class Action Trial and $61 Million Judgment
By Bill Boies – March 16, 2021
A claims process with $11 million left over. Who gets the $11 million?

The Delaware Supreme Court Provides Guidance Regarding Section 220 Inspection Requests to Investigate Corporate Wrongdoing
By Neeckaun Irani and Shireen Leung – February 22, 2021
The decision rejects two objections commonly raised by corporate defendants seeking to resist or limit Section 220 inspection demands.

N.J. District Court Holds That Article III Standing Requirements Are Not Relaxed in MDL Class Actions
By Neeckaun Irani and Shireen Leung – February 5, 2021
Claims for lack of Article III standing were dismissed because the named plaintiffs improperly brought state claims in states where plaintiffs neither lived nor were injured.

Eleventh Circuit Offers Guidance to Class Counsel Regarding Duties Owed to Class Representative and Class Members
By D. Scott Carlton and Bryant Lin – January 26, 2021
Two key points for class counsel to consider.

SCOTUS to Review Ninth Circuit Holding on Injury Standards for Class Members to Establish Standing
By David Singh and Neeckaun Irani – January 8, 2021
The Court granted certiorari to consider “whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”

2020

Arbitration Where You’re Not Expecting It
By Joseph A. Fischetti – November 23, 2020
The Third Circuit’s decision in Remicade and how expansive arbitration clause interpretations can close the courthouse doors to claims the parties did not contemplate.

Ninth Circuit: CAFA Does Not Override the Magnuson-Moss Warranty Act’s Requirement to Name 100 Plaintiffs
By D. Scott Carlton and Emily Monroe – August 18, 2020
The decision is an excellent reminder for litigants that CAFA does not operate to displace the MMWA’s jurisdictional requirements.

Second Circuit Holds Past Purchasers Are Not Eligible for Class Certification Under Rule 23(b)(2)
By D. Scott Carlton and Neeckaun Irani – August 14, 2020
The court holds that district court erred in certifying past purchasers as a Rule 23(b)(2) settlement class because class members would not benefit from injunctive relief.

Sixth Circuit Holds Class Action Dismissal Only Covers Named Plaintiffs Prior to Class Notification
By Neeckaun Irani – March 26, 2020
The summary judgment decision binds only named plaintiffs when court issues summary judgment order dismissing entire case after class is certified but before class notification.

Ninth Circuit: Identification of Potential Clients Alone Is Not a Permissible Discovery Purpose
By Neeckaun Irani – March 6, 2020
The court finds clear error in allowing discovery to identify class members before class-certification.

Derivative Suits 101: Tips for Successful Settlements
By D. Scott Carlton – January 17, 2020
The unique procedural posture of shareholder derivative suits requires court approval of settlements under Rule 23.1 of the Federal Rules of Civil Procedure. Settling parties must be diligent in satisfying the settlement prerequisites to ensure the settlement is approved by the court.

2019

Competition Class Action Certification Made (Even) Easier in Canada
By James Musgrove and Jeffrey Simpson – November 4, 2019
The Supreme Court of Canada released a long-anticipated decision in Pioneer Corporation et al. v. Godfrey, wrestling with several important questions covering Canada’s Competition Act.

Class Actions 101: Six Tips for Approaching Class Action Settlements
By D. Scott Carlton – October 31, 2019
Settling a class action lawsuit poses unique challenges and imposes specific obligations on the parties.

Under the Magnifying Glass: Class Action Settlements Experiencing Increased Scrutiny Nationwide
By Lindsay Breedlove – October 22, 2019
And more takeaways from the 23rd Annual National Institute on Class Actions.

Class Actions 101: How to Obtain (or Defeat) Class Certification
By Adam Polk – October 22, 2019
Learn the major rules of the road for prosecuting or defending class cases.

Keeping Tabs on Circuit Splits Post-Spokeo
By Jason Kellogg – October 15, 2019
The Eleventh Circuit addresses standing to sue under the TCPA, rejecting the Ninth Circuit’s decision that a single text message can establish concrete injury.

The D.C. Circuit Affirms Denial of Class Certification Because Antitrust Plaintiffs Failed to Offer Proof of Classwide Injury
By D. Scott Carlton – September 13, 2019
The court’s opinion provides excellent guidance to counsel handling class action claims.

California Supreme Court Adopts Relaxed Approach to Ascertainability Requirement in False Advertising Case
By Adam Polk – August 27, 2019
The plaintiff alleged that an inflatable pool's packaging suggested the pool was able to hold four adults comfortably, when in reality, the pool had difficulty accommodating four children.

Ninth Circuit Upholds Point of Sale Damages Theory in Products Liability Class Actions
By Jason Kellogg – August 23, 2019
The case involves faulty clutches in new Nissan vehicles.

Ninth Circuit Resuscitates Nationwide Settlement Classes
By Jason Kellogg – July 1, 2019
En banc panel holds state law variations play no role in settlement approval calculus.

Supreme Court Sticks to Statutory Text, Limiting Counterclaim Defendants’ Ability to Remove Suits to Federal Court
By Lindsay Breedlove and Dennie Zastrow – May 30, 2019
SCOTUS addresses state court counterclaim defendants’ removal powers in Home Depot v. Jackson.

Supreme Court Rejects “Who Sets the Price” Alternative to Illinois Brick
By Adam Polk – May 28, 2019
The Court holds app purchasers can pursue antitrust damages claims against Apple.

Seventh Circuit: The Need for Extrinsic Evidence Is Not an Automatic Bar to Class Certification
By Adam Polk – May 8, 2019
The case is Red Barn Motors v. NextGear Capital.

Contractual Ambiguity Does Not Provide a Sufficient Basis to Compel Class Arbitration under the Federal Arbitration Act
By Scott Carlton – May 6, 2019
SCOTUS rules in Lamps Plus Inc. v. Varela.

Post-Bristol Myers: Personal Jurisdiction in Nationwide Class Actions Over Non-Resident Class Members Remains in Flux
By Scott Carlton – April 29, 2019
It appears that until the federal courts of appeals or the U.S. Supreme Court weighs in, uncertainty over whether plaintiffs must establish personal jurisdiction for the claims of absent class members will persist.

The #MeToo Movement and the Shareholder Derivative Action
By Scott Carlton – April 24, 2019
The theories of liability for sexual misconduct continue to expand and capture new, deep-pocketed defendant groups.

Cy Pres Lives Another Day: Supreme Court Remands Frank v. Gaos for Spokeo Standing Analysis
By Elizabeth Kramer – March 21, 2019
The case involves allegations that Google violated users’ privacy by disclosing their internet search terms to other website owners.

Tax Tips for Class Action Settlement Agreements
By Julia Damasco – February 12, 2019
A primer on how to make taxes clear and minimize negative consequences.

Top Tips for Approaching Funders to Secure Legal Finance
By Christine Azar – February 12, 2019
Learn how the process works and how to “get to yes.”

Illinois Supreme Court Rules in Biometric Information Privacy Act Case
By Jennifer Mesko and Emily Knight – February 12, 2019
A statutory privacy loss is injury enough.

2018

Eighth Circuit: Challenging Standing May Be a Double-Edged Sword
By the Class Actions & Derivative Suits Committee – November 1, 2018
A defendant should carefully consider when and how to challenge these cases.

Ninth Circuit Provides Evidentiary Freedom at Class Certification Stage
By the Class Actions & Derivative Suits Committee – October 26, 2018
The case involves a wage and hour class action challenging an employer's practice of rounding clock-in times to the nearest quarter hour.

Ninth Circuit: Central District of California’s 90-Day Deadline to Move for Class Certification Incompatible with Rule 23
By Adam E. Polk – October 25, 2018
The decision provides needed clarity to those practicing in the Central District.

Supreme Court Again Addresses Sixth Circuit’s Yard-Man Inferences
By Beau D. Hollowell – October 25, 2018
For the third time in three years, SCOTUS addresses the Sixth Circuit's inferences for determining the duration of benefits under collective-bargaining agreements.

Supreme Court Holds Employers Do Not Violate National Labor Relations Act by Requiring Employees to Agree to Arbitrate
By James N. Boudreau – July 6, 2018
The ruling comes in Epic Systems v. Lewis.

Recent Ninth Circuit Decision Highlights Uncertainty Regarding the Duty to Disclose a Product Defect under California Law
By CADS Emerging Issues Subcommittee – July 6, 2018
The court’s discussion in Hodsdon v. Mars, Inc. highlights a key area of potential uncertainty that may affect many consumer class actions.

Supreme Court to Review Cy Pres-Only Settlement in Google Privacy Case
By Simon Grille – July 6, 2018
The case arises from allegations that the tech giant violated its users’ privacy rights by disclosing their search terms to other websites.

Fourth Circuit: No Presumption of Timeliness Where One Class Action Plaintiff Moves to Intervene in Another Class Action Prior to the Opt-Out Deadline
By Adam E. Polk – July 6, 2018
The Scott decision is a departure from the rule in the Third Circuit, which recognizes a presumption of timeliness for intervention motions filed by class members before the opt-out deadline.

California Supreme Court: Unnamed Class Members Must Intervene or Move to Vacate to Gain Right to Appeal Class Settlements
By Adam E. Polk – May 8, 2018
Learn how this year's Hernandez decision is distinct from federal practice.

California Appellate Court Holds that Expert Evidence Submitted in Support of Certification Must Be Admissible
By Robert J. Herrington – May 8, 2018
Practitioners should be cognizant of the Apple decision and prepared to meet the evidentiary requirements of Sargon at the class certification stage.

U.S. Supreme Court Hears Oral Argument in China Agritech Tolling Case
By Simon Grille – May 8, 2018
The argument highlights divisions among the Justices concerning the policies underlying class actions.

Recent Ninth Circuit Decision Undercuts Nationwide Class Actions
Practitioners should keep their eyes on the Hyundai decision.

The Top 10 Class Action-Related Developments of 2017
By Paul Karlsgodt – January 31, 2018
In a relatively quiet year for class actions, there were at least enough noteworthy developments to put together a quick list.

2017

Ninth Circuit: No Formal Motion for Reconsideration Motion Needed to Toll 23(f) Deadline
By Adam E. Polk – September 26, 2017
The suit alleges that a pharma company sold an aphrodisiac supplement that was not approved by the FDA.

Plaintiffs Cannot Amend Their Complaint Post-Removal to Change the Nature of the Class to Divest the Federal Court of CAFA Jurisdiction: Ninth Circuit
By Antonieta Pimienta – June 7, 2017
The ruling comes in Broadway Grill v. Visa Inc.

Circuit Split Deepens over the Enforceability of Class Action Waivers in Employment Disputes
By Matthew Mall – June 1, 2017
In advance of the October 2017 Supreme Court argument, the Sixth Circuit rules in National Labor Relations Board v. Alternative Entertainment.

Eighth Circuit Clarifies CAFA’s Local-Controversy Exception Applies to Local Citizens, Not Mere Residents
By Adam E. Polk – May 25, 2017
In Hargett v. RevClaims, the court aligned itself with the Seventh Circuit.

Shrink-Wrap Arbitration Clauses Must Be Conspicuously Displayed: Ninth Circuit
By Adam E. Polk – April 24, 2017
The court ruled that receipt of a warranty brochure accompanying a device does not mean a contract has been formed.

Predispute Arbitration Clauses Targeting Public Injunctive Relief Are Unenforceable: CA Supreme Court
By Adam E. Polk – April 24, 2017
The ruling comes down in McGill v. Citibank, N.A.

Individual Issue of Interpretation or Understanding Does Not Predominate with Form Contracts: Third Circuit
By Caroline E. Oks – April 4, 2017
The case is Gillis v. Respond Power, LLC.

Third Circuit Emphasizes the Need to Provide Reasonable Notice of Arbitration Clauses
By Jennifer L. Mesko and Michael J. Ruttinger – March 30, 2017
The case involves an unwieldy user's manual for a Samsung Galaxy smartphone.

Update on the Fairness in Class Action Litigation Act
By Robert J. Herrington – March 14, 2017
If the act becomes law, class action practitioners can expect major changes.

Ninth Circuit: Cy Pres Awards Must be Tailored to Plaintiffs’ Claims to Justify a Class Action Release
By Adam Polk – February 14, 2017
The case is Koby, et al. v. ARS National Services, Inc.

Rule 23 Does Not Include an “Administrative Feasibility” Requirement: Ninth Circuit
By Adam E. Polk – January 17, 2017
The case is Briseno v. ConAgra Foods, Inc.

Think Twice Before Seeking Dismissal for Lack of “Standing”
By Robert J. Herrington – January 17, 2017
Tips for thinking through when and how to present standing challenges.

2016

District Court: CAFA Class Actions Lacking Article III Standing Must Be Remanded to State Court, Not Dismissed
By Matthew Mall – October 27, 2016
Practitioners should weigh this potential outcome carefully when considering whether to challenge standing in a class action pending in federal court.

Ninth Circuit: Delegation Clauses Are Arbitrable
By Adam E. Polk – October 27, 2016
The appeals court did not deviate from established California law invalidating Private Attorney General Act waivers.

Third Circuit: Six Factors Decide Rule 23(a)(1) Numerosity
By Adam E. Polk – October 27, 2016
Learn the rules from a so-called pay-for-delay antitrust case involving a branded drug called Provigil.

Third Circuit: Lack of Damages “Predominance” in Law School Employment Statistics Case
By Joshua S. Levy – October 13, 2016
The court also clarifies the appropriate level of District Court “scrutiny” at class certification.

Sixth Circuit Reverses District Court, Finds Standing for FCRA Claims in the Wake of Spokeo
By Ashley Bruce Trehan – October 12, 2016
Another case attempting to interpret the parameters of Article III standing in statutory class actions.

Spokeo's "Concreteness Versus Particularity" Dichotomy
By Ashley Bruce Trehan – May 31, 2016
What will this Supreme Court ruling really mean?

Ninth Circuit Issues Ruling on Post-Campbell-Ewald Rule 68 Offers
By Adam E. Polk – May 31, 2016
The case is Chen v. Allstate Insurance Co.

Supreme Court Rules Certain Securities Cases May Proceed in State Court
By Adam E. Polk – May 31, 2016
The case is Chen v. Allstate Insurance Co.

Ninth Circuit: Severance of Unconscionable Provision of Arbitration Clause Preferred When Feasible
By Manfred Muecke – March 31, 2016
The application of unconscionability to arbitration agreements remains a gray area.

Second Circuit Rules in Gallego v. Northland Group, Inc.
By William J. Holley, II – May 31, 2016
A panel considered the proposed class settlement of a Fair Debt Collection Practices Act claim.

Supreme Court Rules in Tyson Foods
By Andrew J. McGuinness – March 29, 2016
The case rejects Comcast v. Behrend.

MA District Court Discounts Ninth Circuit's Approach to Coupon Settlements
By Ashley Trehan – February 25, 2016
Just what is a “coupon” that would trigger CAFA’s stringent provisions?

H.R. 1927 Passes House and Heads to Senate
By Ben V. Seessel – February 15, 2016
The Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016 makes it through.

Third Circuit Vacates Arbitrators' Decision on Availability of Class Arbitration
By Matthew Mall – February 10, 2016
The parties’ dispute arose after Scout Petroleum purchased Chesapeake Appalachia’s rights under several oil and gas leases in Pennsylvania.

Data Breach Class Actions: 2015 Year in Review and 2016 Preview
By Kristin A. Shepard – February 3, 2016
A quick look back and ahead.

2015

Sixth Circuit Approves Certification of Classes to Pursue Plaintiffs' "Snake Oil" Theory of Liability
By E. Colin Thompson – September 21, 2015
A majority rejected arguments made by pharma giant Procter & Gamble.

Southwest Airlines In-Flight Alcohol Suit Causes Circuit Split
By Erin Wilson – September 15, 2015
The underlying suit involved certain drink vouchers that the airline stopped honoring.

Ninth Circuit Rules in Bridewell-Sledge v. Blue Cross of California
By Matthew Mall – September 15, 2015
The future impact of the opinion remains uncertain.

Seventh Circuit Rejects Third Circuit's "Heightened" Ascertainability Analysis
By E. Colin Thompson – August 18, 2015
Defendants opposing class certification in the Seventh Circuit still will have the opportunity to challenge proposed class definitions as failing to satisfy the traditional superiority and manageability requirements of Rule 23.

Ninth Circuit: PAGA Cause of Action Is Not a Class Claim under CAFA
By Manfred Muecke – August 18, 2015
Under this ruling, California-based plaintiffs seeking to avoid removal may now look to strategically plead wage and hour complaints that seek greater amounts of damages under a PAGA claim with lesser amounts claimed under class-based causes of action to avoid reaching the amount-in-controversy threshold under CAFA.

CA Supreme Court: Arbitration Agreement Challenge Allowed under Unconscionability Rule
By Teresa H. Michaud – August 14, 2015
In light of Sanchez, individuals and companies utilizing arbitration agreements in consumer transactions in California should scrutinize the terms of their contracts to assess whether the provisions unreasonably favor the drafter.

Eleventh Circuit Rules in Ewing Indus. Corp. v. Bob Wines Nursery, Inc.
By Meghan Hausler – August 11, 2015
The Ewing court acknowledged that several other circuits have distinguished, criticized, or declined to follow Griffin II.

Seventh Circuit Favors Data Breach Victims
By Jim Halpert, Amanda Fitzsimmons, and Chelsea Mutual – July 24, 2015 2015
A panel concluded that customers who have been the victims of data breaches have standing to sue even before fraudulent charges appear on their cards when they allege an increased risk of future harm or harm-mitigation expenses.

Eleventh Circuit Rules in Karhu v. Vital Pharmaceuticals
By E. Colin Thompson – July 17, 2015
Self-identification, the majority found, suffers from two intertwined problems.

Ninth Circuit Adheres to Narrow Interpretation of "Local Single Event" Exception
By Ruben F. Reyna – July 14, 2015
In a 2–1 decision, the court narrowly construed the exception to apply only where all claims arise from a single event or happening rather than from a continuing set of circumstances

Ninth Circuit Dismisses Appeal in Eminence Investors v. Bank of New York Mellon
By Manfred Muecke – April 15, 2015
In 2011, plaintiff-appellant Eminence Investors, L.L.L.P. filed a California state action against the Bank of New York Mellon for breach of fiduciary duty and gross negligence relating to the issuance of public financing bonds.

Ninth Circuit Rules in Jordan v. Nationstar Mortgage
By William J. Holley – April 10, 2015
A panel addressed the question whether the term "removable" refers to the first date on which any basis for removal is disclosed or the date a basis for CAFA removal is disclosed.

Eleventh Circuit Limits Courts' Jurisdiction over Unnamed Class Members Prior to Class Certification
By William J. Holley – February 20, 2015
A panel limited a district court's jurisdiction over, and a class representative's standing with respect to, unnamed class members prior to class certification.

SCOTUS: Dismissal of a Single Case in an MDL Is Immediately Appealable
By Manfred Muecke – January 30, 2015
The case is Gelboim v. Bank of America Corp.

Ninth Circuit Clarifies Evidentiary Requirements When CAFA Removal Is Challenged
By Aaron T. Morris – January 25, 2015
The case is Ibarra v. Manheim Investments, Inc.

Third Circuit Holds That Rule 23(B)(2) Classes Do Not Have To Be Ascertainable
By David Garner – January 25, 2015
Ascertainability is not a requirement for certification of a Rule 23(b)(2) class seeking only injunctive and declaratory relief.