In Association of American Physicians & Surgeons v. United States Food and Drug Administration (“AAPS”), __ F.4th __, 2021 WL 4097325 (6th Cir. Sept. 9, 2021), the Sixth Circuit Court of Appeals recently cast doubt on the continued viability of the associational standing doctrine.… Continue Reading

Last year, the Seventh and D.C. Circuits addressed the contours of personal jurisdiction in federal class actions.  Now, the Ninth Circuit Court of Appeals has joined the mix in Moser v. Benefytt, Inc., __ F.4th __, 2021 WL 3504041 (9th Cir. Aug. 2021).

In Moser, after the district court denied the defendant’s 12(b)(6) motion to dismiss, the plaintiff “asked the district court to certify two nationwide classes.”  In response, the defendant challenged class certification, arguing the district court lacked personal jurisdiction over all nonresident putative class members “under Bristol-Myers.”  Reasoning the defendant “waived its personal jurisdiction … Continue Reading

On July 16, in Smith v. Professional Transportation Inc.,[1] the Seventh Circuit answered what might at first seem like an unnecessary question:  how does a plaintiff “commence” an FLSA lawsuit?  Under most circumstances, of course, a named plaintiff need only file a Complaint, and the lawsuit is off and running.  But unlike Rule 23 class actions, the FLSA requires putative collective action members to affirmatively opt into a collective action by giving their consent in writing.  Specifically, the statute says that “[n]o employee shall be a party plaintiff to any such [collective] action unless he gives his consent … Continue Reading

The following article originally appeared on Law360 (Part 1 and Part 2).

In the 2013 case Comcast Corp. v. Behrend,[1] the U.S. Supreme Court explained that a party seeking class certification must satisfy the requirements of Federal Rule of Civil Procedure 23 through evidentiary proof.

What few practitioners may recall, however, is the question for which the court granted certiorari: “Whether a district court may certify a class action without resolving whether the plaintiff has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”

While the court’s … Continue Reading

On June 25, 2021, the United States Supreme Court issued its opinion in TransUnion LLC v. Ramirez (“Ramirez”), holding that all plaintiffs, to include absent class members, must demonstrate that they have suffered a concrete harm in order to have Article III standing to sue for damages.  Building off its decision in Spokeo v. Robins, LLC, the Court confirmed that even where Congress passes a law creating an individual cause of action, uninjured plaintiffs do not have standing to sue in federal court simply because that law is violated.  Justice Kavanaugh, writing for a 5-4 majority, summarized … Continue Reading

Monday, the Supreme Court issued its highly anticipated ruling in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, holding that the generic nature of an alleged misrepresentation may be important evidence of price impact to rebut the Basic presumption of reliance and thus should be considered at class certification.

The decision provides defendants facing securities fraud class actions – particularly so-called “inflation maintenance” cases – with an important tool to defeat class certification.… Continue Reading

Two U.S. Circuit Courts of Appeals recently weighed in on what it takes to establish standing to pursue a Telephone Consumer Protection Act (TCPA) claim. The 5th Circuit held that receipt of one unwanted text message is enough to satisfy Article III, which deviates from a prior 11th Circuit decision holding that one text message does not confer standing. On the other hand, the 3rd Circuit held that a TCPA plaintiff did not have standing where the plaintiff alleged only a TCPA violation, but no harm. Finally, the 11th Circuit issued an opinion interpreting the Fair Debt Collection Practices Act … Continue Reading

For far too long, companies facing consumer and product liability litigation have relied solely on personal jurisdiction doctrine to try avoiding unfavorable forums applying unfavorable law. Personal jurisdiction doctrine, though useful, is ultimately a tool that produces inconsistent results.

Instead, companies facing consumer and product liability litigation should turn to another, well-developed body of law that may more consistently establish the procedural boundaries of any potential litigation: the law of contract. Courts have recognized that plaintiffs and defendants can pre-suit contract to terms governing any future tort litigation, including the place of suit, the law that applies, whether arbitration is … Continue Reading

The Court of Appeals for the Ninth Circuit issued a decision recently in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC (“Olean Wholesale”), confirming that district courts must rigorously examine competing expert evidence when determining whether the requirements of class certification have been satisfied.

In Olean Wholesale, litigation related to the long-running tuna price-fixing saga, purchasers of packaged seafood alleged a price-fixing conspiracy against the three largest domestic producers of packaged tuna. At class certification, the parties’ experts disagreed on whether a sufficient portion of the proposed class had been harmed by the alleged … Continue Reading