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

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

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 U.S. Supreme Court Adopts Narrow Autodialer Definition in 9-0 Defense Victory

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 Will No-Injury Class Actions Have Any Leg to Stand on? U.S. Supreme Court Hears Argument in TransUnion v. Ramirez

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

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.

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