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

Almost exactly a year ago, the first COVID-19 tuition reimbursement lawsuits were filed against higher education institutions across the United States and we warned of the continued onslaught of such litigation.  With the filing of those reimbursement class actions decreasing, higher education institutions should be cognizant of a potential new wave of COVID-19 class actions: privacy class action lawsuits related to the COVID-19 vaccine.… Continue Reading

On April 1, 2021, the U.S. Supreme Court issued its long-awaited opinion in Facebook v. Duguid, which resolved a circuit split regarding the meaning of “automatic telephone dialing system” (autodialer or ATDS) under the Telephone Consumer Protection Act (TCPA). In a decision authored by Justice Sonia Sotomayor, the court adopted the narrow, pro-defendant definition of autodialer.… Continue Reading

On March 30, 2021, the United States Supreme Court heard oral argument in Transunion LLC v. Ramirez, No. 20-297, a case that could have far-reaching implications on absent class member standing, particularly where the injuries of these absent class members would be impossible or difficult to establish.  The Court agreed to address whether Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury like what the class representative suffered.… Continue Reading

The Sixth Circuit Court of Appeals’ recent opinion in Lyngaas v. Curaden AG (“Lyngaas”), has important implications for federal class actions regarding personal jurisdiction and the use of non-admissible evidence to support class certification.

In Lyngaas, a plaintiff brought a class action against Curaden AG, a Swiss entity, and its U.S. subsidiary, Curaden USA, for allegedly violating the TCPA.  The basis for the plaintiff’s allegations were two unsolicited fax advertisements sent on behalf of Curaden USA to the plaintiff and 46,000 other individuals across the country.  These advertisements did not mention Curaden AG.

Curaden AG argued the … Continue Reading

Recently, in the Matter of Navistar MaxxForce Engines Mktg., Sales Practices, & Prod. Liab. Litig. (“Navistar”), the Seventh Circuit Court of Appeals was asked to adopt the “reasonable indication” approach, which would allow class members to opt out of a class based on any reasonable indication of their desire to exclude themselves.  Finding the application of such an approach to be impractical, the court refused to adopt it.

Navistar involved the settlement of a class action in which class members accused Navistar of selling trucks with defective engines.  Prior to approving the settlement, the district court required that all … Continue Reading

In Uzuegbnam v. Preczewski, the Supreme Court held that the award of nominal damages is sufficient to redress a past injury, satisfying Article III’s redressability requirement.  While at first blush, the opinion may appear to lessen the burden on any plaintiff in satisfying Article III standing, the more likely outcome is that the holding will be limited to the purely constitutional cases based on federal question jurisdiction.  Nevertheless, creative “uninjured” plaintiffs may try to harness the ruling to proceed in federal court on nominal damages claims in cases not involving a federal question—for example a putative class action under … Continue Reading

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