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As we touched on last summer,[1] whether a district court may certify a class action without resolving challenges to the admissibility of fact or expert evidence is still an unsettled question.  This question is particularly important with respect to expert evidence, given that class certification frequently hinges on competing experts’ opinions regarding the propriety of an aggregate action.  If an expert’s opinion is deemed inadmissible, the party proffering it is almost certain to be on the receiving end of an adverse certification ruling.
Continue Reading Northern District of Ohio Holds Expert Evidence Must Be Admissible to Be Considered at Class Certification

A new Seventh Circuit decision – Santiago v. City of Chicago – bolsters the strategy among some class action defense lawyers to not bifurcate class certification and merits discovery.[i] This strategy instead contemplates that the opposition to Plaintiff’s class certification motion will be filed simultaneously with a motion for summary judgment. The Seventh Circuit’s…

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 Associations, stand down: Sixth Circuit Casts Doubt on Associational Standing

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…

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 in writing to become such a party” and the consent is filed with the court.  29 U.S.C. § 216(b).  In other words, each employee’s lawsuit is “commenced,” and the statute of limitations stops running for that individual, on the date he or she files a signed consent.
Continue Reading How to ‘Commence’ an FLSA Lawsuit: More Than Meets the Eye

On June 29, Gov. Ron DeSantis signed into law Senate Bill 1120, which amends the Florida Telemarketing Act and creates a state-law analog to the federal Telephone Consumer Protection Act.

Read on to learn about five key features of the new Florida statute, which went into effect July 1.

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 the Court’s holding in five simple words: “No concrete harm, no standing.”
Continue Reading No-Injury Class Actions: U.S. Supreme Court Issues Final Ruling (Part II)

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 A New Avenue for Defendants in Securities Fraud Class Actions: Supreme Court Holds “Generic” Nature of Statements Is “Important Evidence” of Price Impact at Class Certification

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…