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

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

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

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

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

We recently discussed Circuit Court rulings allowing nationwide class actions where the named plaintiffs could satisfy specific personal jurisdiction.  Since then, the Fifth Circuit has held that a defendant did not waive its personal jurisdiction defense to plaintiffs’ nationwide class allegations by raising the defense for the first time in opposition to class certification.  See Cruson v. Jackson Nat’l Life Ins. Co., ___ F.3d. ___, 2020 WL 1443531 (5th Cir. Mar. 25, 2020).  The Court did not go on to reach the merits of the defense, instead finding that plaintiffs failed to make an adequate predominance showing under Rule … Continue Reading

In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Supreme Court held that Article III requires plaintiffs to establish a “concrete and particularized” injury-in-fact, “even in the context of a statutory violation.”  Although the Supreme Court noted that “intangible” injuries, including the “violation of a procedural right” can be sufficient in some circumstances, the Supreme Court made clear that “a bare procedural violation, divorced from any concrete harm” to the plaintiff cannot satisfy the injury-in-fact requirement.  Given the limited guidance provided by the Supreme Court, the circuit courts have taken differing approaches to what constitutes an injury-in-fact … Continue Reading

Welcome to a three-part series that provides an overview of the California Invasion of Privacy Act (CIPA), examines recent CIPA litigation involving smart speakers, and proposes defenses in response to an alleged violation.

CIPA in the Age of Smart Devices

The California Invasion of Privacy Act (CIPA)[1]—traditionally used by law enforcement and the plaintiffs’ bar to address illegal recording/eavesdropping on phone calls—has seen renewed interest in the age of smart speakers. Smart speakers, such as Amazon’s Alexa, Google Home and Apple’s Siri, are voice-enabled devices where the user utters a “wake word” to activate a “virtual assistant”.  A … Continue Reading

When and how can a defendant in a putative class action defeat a proposed class?  Defendants served with class action complaints frequently struggle with this question.  Typically, defendants wait until class certification briefing following lengthy discovery to contest class treatment.  This waiting game carries a high cost – discovery in class action cases is usually lengthy (even when bifurcated to address class certification first), expensive, and contentious, carried on while potentially ruinous exposure dangles over the defendant’s head.  Many defendants therefore consider filing early motions to strike class allegations prior to or during discovery to attempt to narrow the class—or … Continue Reading