McGuireWoods partners Davis Walsh and Samuel Tarry are editors of a timely new book providing practical guidance for handling infectious disease litigation, from COVID-19 pandemic disputes to localized outbreaks that require specialized knowledge. “Infectious Disease Litigation: Science, Law & Procedure” is published by the American Bar Association and becomes available Feb. 12.

“Public health concerns have permanently changed some of the ways we hold each other accountable, and professional litigators, business leaders, and litigants need a new reference map — one that better acknowledges the intersection of law and science,” Walsh and Tarry wrote in the book’s introduction.… Continue Reading

Since the Supreme Court’s May 16, 2016 decision in Spokeo, Inc. v. Robins, Article III standing has continued to be a major focus in federal courts.  The Sixth Circuit’s opinion in Primus Group, LLC v. Smith & Wesson Corp., et al., 2021 WL 423741 (6th Cir. Feb. 8, 2021), continued this focus.

In Primus Group, an entertainment venue filed a class action against eight firearms manufacturers.  In the class action, Primus purported to represent “[a]ll persons entitled to freely attend schools, shopping locations, churches, entertainment venues, and workplaces in the United States without the intrusion of individuals armed … Continue Reading

Earlier this week, the Eleventh Circuit joined the Second, Sixth, Eighth, and Ninth Circuits in rejecting administrative feasibility as a prerequisite to certification under Rule 23, deepening a split with the First, Third, and Fourth Circuits.  In Cherry v. Dometic Corporation, the court reversed the district court’s denial of class certification based on administrative feasibility.  __ F.3d __, 2021 WL 346121, at *3-5 (11th Cir. Feb. 2, 2021).  The Eleventh Circuit also held that denial of class certification did not divest the district court of jurisdiction, ordering the case to proceed in the district court.  See id. at *6.… Continue Reading

On September 18, 2020, we wrote an article discussing how the United States Court of Appeals for the Eleventh Circuit in Johnson v. NPAS Solutions, LLC, No. 18-12344 (11th Cir. 2020) held that class action incentive payments were improper because “incentive award[s] constitute[] a salary, a bounty, or both[.]”

While the Eleventh Circuit mulls on whether to review this issue en banc, on January 14, 2020, the United States Court of Appeals for the Sixth Circuit weighed in on the issue further deepening the circuit split if the Eleventh Circuit does not reverse course.

In Shane Group, Inc. … Continue Reading

For more than a decade, United States District Courts have taken a stark approach to the need for appropriate class definitions and ascertainability in federal class actions.  Mueller v. CBS, Inc., 200 F.R.D. 227, 233 (W.D. Pa. 2001) (a class definition cannot be “amorphous, vague or indeterminate.”); Adair v. Johnston, 221 F.R.D. 573, 577 (M.D. Ala. 2004) (“[F]or a party to represent a class, the class sought to be represented must be adequately defined and clearly ascertainable.”).

The United States Courts of Appeals have followed suit.  Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th … Continue Reading

Earlier this year, we posted a three-part series on the Coronavirus and Class Action litigation (Part One, Part Two, and Part Three of our Coronavirus and Class Action litigation series).  More recently, and almost a month ago, we posted an article on class action waivers and arbitration.  As luck would have it, the United States District Court for the Central District of California has afforded us an opportunity to address both issues in a single, connected article.

On October 20, 2020, Judge Klausner issued his order in Archer, et al. v. Carnival Corporation.  No. 2:20-cv-04203, … Continue Reading

On October 13. 2020, White Castle System, Inc. petitioned the United States Court of Appeals for the Seventh Circuit for permission to seek an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).  This petition arises out of the United States District Court for the Northern District of Illinois’ opinion on White Castle’s motion for judgment on the pleadings issued on August 7, 2020.  The matter hinged on whether repeated collection of the same biometric information from an employee without prior consent constituted separate violations of the Illinois Biometric Information Privacy Act (BIPA).

Summary of District Court’s Cothron v. White Castle … Continue Reading

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