It has been a few weeks since we first posted about class actions and COVID-19. In that initial article, we analyzed the first coronavirus related lawsuit but were forced to prognosticate as to what an actual COVID-19 class action would look like as none had yet been filed, and how putative classes would attempt to clear the various hurdles of Rule 23 certification. We no longer have to speculate. Now, several weeks into this pandemic, numerous COVID-19 related class actions have been filed throughout the country in various different spaces—consumer, mass tort, securities, labor & employment, and banking and … 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 the span of two days, two United States Court of Appeals held that a nationwide class action could proceed against a defendant as long as the named plaintiff could satisfy specific personal jurisdiction. See Molock v. Whole Foods Market Grp., Inc., ___ F.3d ___, 2020 WL 1146733 (D.C. Cir. March 10, 2020); Mussat v. IQVIA, Inc., ____ F.3d. ____, 2020 WL 1161166 (7th Cir. March 11, 2020).
In Molock, “the defendant moved to dismiss all nonresident putative class members for lack of personal jurisdiction.” The district court denied the motion on the merits. On interlocutory appeal, a … Continue Reading
As we were drafting this blog post, each of us was sitting in our home offices self-quarantined from the outside world doing our part to flatten-the-curve and keep COVID-19 germs at bay. The news about the coronavirus is changing by the second and along with it closings and edicts the likes of which most of us have not seen in our lifetime. Focusing on the future of class actions stemming from this global pandemic doesn’t seem very neighborly in the moment, but our society is generally a litigious one and so it is at least worth a quick look.
The … 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)—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
TCPA class actions based on the receipt of unsolicited text messages have grown more common in recent years. However, the Eleventh Circuit’s decision in Salcedo v. Hanna, may upend that trend by holding that a single unsolicited text message did not generate the harm necessary to satisfy Article III standing to sustain a Telephone Consumer Protection Act (“TCPA”) claim.
In Salcedo, the Eleventh Circuit reviewed its own precedent, the legislative history of the TCPA, and the Supreme Court’s decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016)—which concluded that plaintiffs must allege concrete injuries and could not … 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
Sometimes settlement with a putative class of nationwide consumers is the best option for resolution. However, since the initial ruling of the Ninth Circuit in In re Hyundai & Kia Fuel Econ. Litig., the mechanism to go about doing so has been in flux. On June 6, 2019, the full en banc Ninth Circuit finally answered class action practitioners’ questions and affirmed the district court’s June 2015 final settlement approval order and certification of a nationwide class of consumers. The decision unravels the prior ruling of a divided three-judge panel of the Ninth Circuit, which previously vacated the class … Continue Reading
On Tuesday May 28, 2019, the United State Supreme Court declined to afford state court third-party, class action defendants the ability to remove a class action to federal court. See Home Depot U.S.A., Inc. v. Jackson, 17-1471 (May 28, 2019).
In Jackson, Citibank, N.A., filed a debt-collection action against George Jackson in North Carolina state court. Jackson answered this action and filed his own claims: (1) an individual counterclaim against Citibank and (2) a third-party class-action against Home Depot U.S.A., Inc., and Carolina Water Systems, Inc.
After Citibank dismissed its claims against Jackson, Home Depot filed a notice … Continue Reading