We’ve been monitoring the appellate battles over the enforceability of class- and collective-action waivers in the employment context since September 2016, when we pondered whether circuit splits would land the issue in the Supreme Court.  Since then, our colleagues in the Labor and Employment practice at McGuireWoods have supplied interim reports on the Supreme Court’s grant of certiorari in not one, not two, but three such cases, and on oral argument in those cases last fall.  Click here to read our colleagues’ succinct analysis of last week’s 5-4 decision upholding employee class- and collective-action waivers under the Federal Arbitration … Continue Reading

For years, companies doing business in New Jersey have been plagued by an archaic statute— the Truth in Consumer Contract,  Warranty and Notice Act (“TCCWNA,” pronounced Tick-wa-nah)—adored only by consumer class action lawyers.  Among other things, the statute prohibits companies from inserting provisions in their customer contracts and other notices that include harmless phrases like “void where prohibited by law” without also disclosing whether the provision is void in New Jersey.  To be fair, the statute also prohibits companies from including provisions that are clearly prohibited by law (think of a contract with a furniture dealer that tells the customer … Continue Reading

Just a brief update on the 9th Circuit’s most controversial class-action case of the year. As expected, the proponents of the settlement that was rejected have appealed the case to the Ninth Circuit en banc.

What is slightly less expected is the alliance of interests that have filed amicus briefs.  As Law360 reports, they include both automotive trade groups and consumer advocacy groups. (Unfortunately, the article does not include links to the amicus briefs.)

The plaintiffs’ advocacy groups have a clear cut argument: they have always asked for a minimal predominance requirement. Consumer groups and pro-manufacturing groups, … Continue Reading

Earlier this week, in In re Hyundai & Kia Fuel Efficiency Litig., the Ninth Circuit vacated a nationwide class action settlement, ruling that the lower court had abused its discretion by not considering whether the variations in the consumer-protection laws of the fifty states might predominate over common issues in the case. The ruling (by Judge Ikuta) was controversial from the start, arriving with an impassioned dissent from Judge Nguyen. And it’s that controversy that makes this opinion worth watching.

The facts of the case will sound familiar to experienced litigators. In the wake of an EPA investigation, several … Continue Reading

2017 was an unusually eventful year for lawyers who track the ascertainability requirement, which had, for the last five or so years, become a staple argument for class action defendants.  Here are the top issues that class action litigators had to contend with.

Circuit split on administrative feasibility.

This year, both the Second and the Ninth Circuits have held that administrative feasibility is not required to show ascertainability.  The Ninth Circuit may have gone even further: some of the language it used suggests that it may not view ascertainability a requirement at all for certifying a class.  (It had … Continue Reading

With the year ending, and McGuireWoods’s webinar next week on class actions’ Hot Issues of 2017 approaching, this seems like a good time to take note of a few of the trends we have seen arising in class actions over the last year.  Consider these appetizers for the main course on December 19.  So, with no further ado, here’s a taste of four ways in which class action lawyers have dealt with the Supreme Court’s ruling in Spokeo v. Robins in 2017.

Emerging Circuit split over data breaches? Appellate courts are split in interpreting Spokeo, particularly with regard to data … Continue Reading

Chicago-based litigators Sarah Zielinski and Jason Chrestionson bring us an update on the issue of individualized inquiry and Article III’s injury-in-fact requirement under the Supreme Court’s landmark decision in Spokeo, Inc. v. Robins.

Earlier this year, the Northern District of Illinois declined to certify a Telephone Consumer Protection Act (TCPA) class action even though the key issue in the case—whether class members had provided prior express written consent to receive prerecorded telemarketing calls—appeared to be a common question.  In Legg. v. PTZ Insurance Agency, Ltd., it seemed apparent “that none of the proposed class members” provided prior express … Continue Reading

Below, Chicago partner Michael R. Phillips shares his thoughts on a petition for certiorari that could have a big impact on the evidentiary standards applied to plaintiffs pursuing class certification.

A major California grower has asked the Supreme Court to resolve a circuit split by holding that evidence used to support class certification must be admissible.  The U.S. Court of Appeals for the Ninth Circuit is currently one of only two federal courts of appeal that allow class certification to be based on evidence that would not satisfy the standards for admissibility at trial.  A uniform rule requiring class certification … Continue Reading

Los Angeles labor and employment litigators Michael Mandel and Amy Beverlin bring us perspective on three class-action waiver cases currently awaiting decision by the Supreme Court, as well as a potential path forward for class-action waivers in employment contracts.

Everyone is talking about the future of class-action waivers in employment arbitration agreements after the Supreme Court launched its new term this month with oral argument in three closely-watched cases—National Labor Relations Board v. Murphy Oil USA, Inc. (5th Circuit), Epic Systems Corp. v. Lewis (7th Circuit), and Ernst & Young LLP v. Morris (9th Circuit).  In its impending decision, … Continue Reading

This week, partner Alicia A. Baiardo and associate S. Virginia Bondurant Price report on a recent dismissal of a product liability class action.

A recent 40-page opinion from the Central District of California illustrates how a Rule 12(b)(6) motion is still a viable vehicle to fight back against putative class actions.  We have seen an increase in the number of product liability consumer class actions over the past ten or so years where plaintiffs expressly disclaim personal injury and wrongful death damages and only allege damages of repair of the product, diminution in value of the product, overpayment of the … Continue Reading