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
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
Below, Chicago-based litigator Matt Gold weighs in on the implications of last week’s Supreme Court decision rejecting the sliding scale approach to specific jurisdiction in mass tort proceedings.
On June 19, 2017, the Supreme Court reinforced its narrow application of specific jurisdiction in mass tort proceedings in an 8-1 decision in Bristol-Myers Squibb Company v. Superior Court of California. In the class action context, this ruling may impede future class representatives attempting to forum shop by filing suit in a state court that not only lacks general jurisdiction over the defendant, but also lacks a direct connection to the … Continue Reading
Washington, DC-based litigator James Freije brings us an analysis of the Supreme Court’s latest class certification decision.
Resolving a current split amongst multiple federal circuits, the United States Supreme Court recently ruled in Microsoft Corp. v. Baker that federal courts of appeals lack jurisdiction to review orders denying class certification after plaintiffs voluntarily dismiss their claims with prejudice. Justice Ginsburg wrote the majority opinion, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan, overturning the United States Court of Appeals for the Ninth Circuit, citing a lack of jurisdiction under 28 U.S.C. § 1291 (“§ 1291”). In a separate opinion concurring … Continue Reading
Commercial litigator Brooks Gresham and products liability litigator Trent Taylor bring us some timely thoughts about reliance from a recent decision by the U.S. District Court for the Northern District of California in a food-labeling class action.
Leonardo da Vinci, among many other laudable epithets, has been called “the last person who knew everything,” as he is thought to have learned all of the scientific knowledge that was available at the time. Whether or not true, undoubtedly Leonardo would be overwhelmed by the amount of knowledge available today, instantaneously, at the touch of a button. Indeed, in the United States … Continue Reading
Those who tuned in to McGuireWoods’ data breach class action webinar last month know that attacking the plaintiff’s standing can be an effective defense strategy in these cases. Here’s our analysis of the most recent appellate decision on that issue.
Last Tuesday, the Second Circuit Court of Appeals affirmed the district court’s dismissal of a putative class action filed against a merchant in connection with a data breach of customer information, holding that the cardholder failed to allege sufficient injury to establish standing.
The decision adds yet another data point for practitioners feeling out the boundaries for when the exposure … Continue Reading
As you probably know, on Wednesday, the Supreme Court finally issued its long-awaited opinion in Campbell-Ewald Co. v. Gomez. Tammy Adkins & Helen Arnold of McGuireWoods’s Chicago office wrote up an excellent summary, which I’m quoting below:
… Continue Reading
On January 20th, 2016, in Campbell-Ewald Co. v. Gomez, a case closely watched by both sides of the class action bar, the U.S. Supreme Court ruled in an opinion authored by Justice Ruth Bader Ginsberg that an unaccepted Rule 68 offer of judgment did not moot the Telephone Consumer Protection Act (TCPA) putative class action brought by plaintiff Jose Gomez.
Courts look down on offers of judgment in class actions as a procedural trick. Used properly, however, they are an effective early screen for cases that can’t be certified.
One of the most heated debates in the last five years of class action practice has been the proper use of Rule 68’s offer of judgment. Defendants like the offer of judgment because it can either moot a case early in (thus shutting down lawsuits that could cost hundreds of thousands of dollars to defeat in conventional litigation), and because the cost-shifting procedures place some of the financial risk of the … Continue Reading
Two couples, the Varsamises and the Giannopolouses, sued Iberia Air Lines for not properly compensating them after their international flights were delayed. Their counsel soon ran into plaintiff-related difficulties: the Giannopolouses were not typical of the class (and wound up accepting Iberia’s Rule 68 offer of judgment); the Varsamises’ claims were dismissed at the summary judgment stage. The class action was over; all that was necessary was for someone to call time of death. And Iberia filed a motion for final judgment to do just that.
At that point, plaintiffs’ counsel filed a motion of their own, “to reopen discovery … Continue Reading