On September 17, 2020, in a potentially groundbreaking decision that could have huge implications for the future of class actions, a split panel of the Eleventh Circuit held that incentive payments given to a named plaintiff in a class action are improper. See Johnson v. NPAS Solutions, LLC, No. 18-12344, “Slip Op.” (11th Cir. 2020).

Judge Newsom writing for the majority of him and Judge Baldock—a Tenth Circuit judge sitting by designation—held “that Supreme Court precedent prohibits incentive awards like the one” awarded in this case. Id. at 18. Specifically, the panel noted that Trustees v. Greenough, 105 … Continue Reading

Despite the ongoing COVID-19 pandemic, plaintiffs continue to file class actions, shouldering defendants with potentially massive discovery costs. With the economic slowdown associated with the pandemic, businesses face increased pressure to manage litigation costs like these. One way to manage those costs is to rethink the traditional approach to conducting class action discovery.

Traditionally, courts have bifurcated discovery into class and merits stages based on the notion that narrow class discovery will preserve party resources until and unless a class is certified. However, this benefit often proves illusory as plaintiffs undertake, and courts allow, broad class discovery that substantially overlaps … Continue Reading

In response to governmental recommendations, stay-at-home orders, and shelter-in-place orders, colleges and universities transitioned to distance learning to keep their students, staff, visitors, and communities safe and healthy.  Nonetheless, the plaintiffs’ bar has viewed this as an opportunity to pounce and even advertise to sue colleges and universities nationwide.  Indeed, plaintiffs’ attorneys have filed over 60 class action lawsuits against higher education institutions and many, many more are likely to come.

A review of many of these class actions provides a roadmap to the strategy and what is likely to be asserted against your institution if it has not already … Continue Reading

As pandemic response task forces at the federal and state levels ramp up price gouging investigations and enforcement actions across the country, civil plaintiffs attorneys have jumped to the forefront by utilizing private causes of action to file price gouging-based class action lawsuits against dozens of major retailers and food supply companies.   Senate Majority Leader Mitch McConnell’s prediction that the COVID-19 crisis will be the “biggest trial lawyer bonanza in history” appears to be taking shape, as the number of putative class action lawsuits targeting price spikes in products that span the consumer spectrum—including N95 masks, toilet paper, hand sanitizer, … Continue Reading

As previously reported, the U.S. District Court for the District of Maryland denied multiple motions brought by a number of small business owners related to seeking emergency relief to enjoin Bank of America from imposing eligibility restrictions on borrowing under the Payroll Protection Program (PPP) established by the Small Business Administration (SBA), under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The decisions in Profiles, Inc., et al. v. Bank of America Corp., et al., issued most recently on April 17, 2020, were a major victory for financial institutions and lenders. On the merits, the district court

… Continue Reading

For those who haven’t previously been following, this is our third installment on COVID-19 class actions.  The first installment was prospective and authored prior to any filed class actions.   The second installment examined the first certified class and putative class actions filed in the mass tort and consumer spaces.   In this installment, we discuss and analyze recent coronavirus-related putative class actions in the areas of banking, privacy, higher education, and securities.

Banking Class Actions:

On March 27, 2020, Congress passed and the President signed, the Coronavirus Aid Relief and Economic Security Act (“CARES Act”). In the weeks following the … Continue Reading

It has been a few weeks since we first posted about class actions and COVID-19. In that initial article, we analyzed the first coronavirus related lawsuit but were forced to prognosticate as to what an actual COVID-19 class action would look like as none had yet been filed, and how putative classes would attempt to clear the various hurdles of Rule 23 certification. We no longer have to speculate.  Now, several weeks into this pandemic, numerous COVID-19 related class actions have been filed throughout the country in various different spaces—consumer, mass tort, securities, labor & employment, and banking and … Continue Reading

We recently discussed Circuit Court rulings allowing nationwide class actions where the named plaintiffs could satisfy specific personal jurisdiction.  Since then, the Fifth Circuit has held that a defendant did not waive its personal jurisdiction defense to plaintiffs’ nationwide class allegations by raising the defense for the first time in opposition to class certification.  See Cruson v. Jackson Nat’l Life Ins. Co., ___ F.3d. ___, 2020 WL 1443531 (5th Cir. Mar. 25, 2020).  The Court did not go on to reach the merits of the defense, instead finding that plaintiffs failed to make an adequate predominance showing under Rule … Continue Reading

In the span of two days, two United States Court of Appeals held that a nationwide class action could proceed against a defendant as long as the named plaintiff could satisfy specific personal jurisdiction.  See Molock v. Whole Foods Market Grp., Inc., ___ F.3d ___, 2020 WL 1146733 (D.C. Cir. March 10, 2020); Mussat v. IQVIA, Inc., ____ F.3d. ____, 2020 WL 1161166 (7th Cir. March 11, 2020).

In Molock, “the defendant moved to dismiss all nonresident putative class members for lack of personal jurisdiction.”  The district court denied the motion on the merits.  On interlocutory appeal, a … Continue Reading

As we were drafting this blog post, each of us was sitting in our home offices self-quarantined from the outside world doing our part to flatten-the-curve and keep COVID-19 germs at bay. The news about the coronavirus is changing by the second and along with it closings and edicts the likes of which most of us have not seen in our lifetime. Focusing on the future of class actions stemming from this global pandemic doesn’t seem very neighborly in the moment, but our society is generally a litigious one and so it is at least worth a quick look.

The … Continue Reading