Those who tuned in to McGuireWoods’ data breach class action webinar last month know that attacking the plaintiff’s standing can be an effective defense strategy in these cases.  Here’s our analysis of the most recent appellate decision on that issue.

Last Tuesday, the Second Circuit Court of Appeals affirmed the district court’s dismissal of a putative class action filed against a merchant in connection with a data breach of customer information, holding that the cardholder failed to allege sufficient injury to establish standing.

The decision adds yet another data point for practitioners feeling out the boundaries for when the exposure … Continue Reading

Last week, David S. Reidy provided his analysis of the California Supreme Court’s recent decision invalidating an arbitration and class waiver provision in a credit card customer agreement.  We jumped at the chance to republish his McGuireWoods Legal Alert here.

On April 6, the California Supreme Court issued the latest in an ongoing series of cases resisting preemption of California state law under the Federal Arbitration Act (FAA) and again testing the limits of the U.S. Supreme Court’s jurisprudence under the FAA.

The decision purports to limit the enforceability in California of arbitration clauses that address injunctive relief, and will … Continue Reading

McGuireWoods’ class action and data privacy and security teams will be presenting a webinar on the tactical defense of data privacy and breach class actions on April 5, 2017 at 1:00 p.m. EST.  Panelists Laura A. Lange, Jarrod D. Shaw, A. Brooks Gresham, and Andrew J. Trask will discuss merits issues, certification issues, and settlements in these increasing frequent cases. You can register here.… Continue Reading

Our colleague John F. O’Brien III brings us this helpful breakdown of the proposed Fairness in Class Action Litigation Act of 2017. 

On March 9, 2017, the Fairness in Class Action Litigation Act of 2017 passed the House, 220-201, split almost entirely along party lines. No Democrats voted for the bill and only 14 Republicans voted against it. The proposal faces a number of obstacles, but if it passes, it will be the most sweeping revision of federal class action law to date.

Chairman of the House Judiciary Committee, Bob Goodlatte (R-Va.), who introduced the bill, was a principal author … Continue Reading

Earlier this month, I wrote about the class-action provisions of the new Fairness in Class Action Litigation Act, which has passed out of the Judiciary Committee and is headed for a floor vote in the House.  At the end of that post, I promised a further explanation of the mass action provisions as well.  These provisions are aimed primarily at multi-district litigation (MDL), which is rapidly becoming a substitute for class proceedings when dealing with numerous personal-injury claims.

Section 4 – would amend the federal jurisdiction statute, allowing the court to sever claims made by an in-state plaintiff if … Continue Reading

Today, we at Class Action Countermeasures are proud to post an analysis of the recent Target litigation appellate opinion by members of our class action and data privacy groups: Laura A. LangeShawna J. English, and Bethany Lukitsch.

The $10 million settlement class in the Target data breach case was unraveled by the Eighth Circuit Court of Appeals in a recent decision that will force the district court to address the impact of the Supreme Court’s decision in Spokeo v. RobinsThe Eighth Circuit remanded the case to the district court, finding that the lower court Continue Reading

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The House of Representatives has reintroduced the Fairness in Class Action Litigation Act (FICALA), and it’s more substantial than the 2015 version.  The previous version, you may recall, attempted to reinforce the typicality requirement to minimize the number of “no injury” class actions brought.  It cleared the House, but died in the Senate.  It appears that House Republicans sense an opportunity with the new administration to enact more sweeping class reforms.
I testified in support of the 2015 Act, and having read the new bill, I like it even more. I think it lives up to its … Continue Reading

As recently reported by our colleague Brennan Bolt in one of our sister blogs, Labor Relations Today, the Supreme Court has answered a question I posed a few months ago by granting cert in not one, not two, but three cases involving the enforceability of class/collective action waivers in employment agreements.  These decisions pit the National Labor Relations Board’s position that class/collective action waivers are inconsistent with the rights granted by the National Labor Relations Act, and therefore unenforceable, against the Federal Arbitration Act’s strong and long-standing policy favoring arbitration.  We’ll be watching these cases closely as … Continue Reading

The following post, written by Shawna English and Laura Lange, was first published on McGuireWoods’s Password Protected blog.  We’ve paid a lot of attention this year to how district and circuit courts have applied Spokeo, and welcomed the opportunity to reprint it here.

Earlier this year, the Supreme Court, in Spokeo, Inc. v. Robins, held that a bare procedural violation of a statutory requirement, divorced from any concrete harm, does not establish the injury-in-fact necessary to maintain a lawsuit in federal court. As the year comes to an end, it is clear that Spokeo has undoubtedly had an … Continue Reading

Last week, I had the privilege of attending the FJC’s 2016 Complex Litigation Conference, held in conjunction with Emory Law School’s Institute for Complex Litigation and Mass Claims.  [Disclosure: I serve on the Institute’s Next Generation Board.]  The conference covered issues in both class action and MDL cases, and was taught by luminaries on both sides of the complex litigation bar, and the audience largely comprised federal judges from various districts around the country.

Given the candor shown by both sides, as well as the judges’ willingness to ask questions and discuss their experiences, I’m going to treat the … Continue Reading