About

Pierce Atwood is pleased to present this class action blog with a focus on decisions of the state and federal courts within the boundaries of the First Circuit. With decades of national class action experience and offices in every First Circuit state, our goal is to serve as a primary resource for companies that face class litigation in Massachusetts, Maine, New Hampshire and Rhode Island, as well as to provide timely information about significant class action developments, strategies and trends on a national level.

Court Denies Uber Motion to Compel Arbitration of Class Antitrust Claims Because Mobile App’s Terms of Service Were Inconspicuous

Practice area:

Late last week, influential federal judge Jed Rakoff of the Southern District of New York denied a motion to compel arbitration of an antitrust class action complaint pending against ride-hailing pioneer Uber Technologies. The case, Meyer v. Kalanick and Uber Technologies, Inc., Case No. 15 Civ. 9796 (S.D.N.Y. July 29, 2016),  may represent an installment in the pendulum swing against mandatory arbitration and class action waiver clauses in consumer contracts.

Uber’s mobile app contains a hyperlink to terms and conditions that include a mandatory arbitration clause.  But Judge Rakoff, applying California law, ruled that consumers registering for Uber service were not obligated to visit or click through those terms in the app version at issue, and therefore never assented to arbitration. The court also found that Uber’s terms of service hyperlink was presented to Android users in “barely legible” fine print at the bottom of the screen, and that its arbitration clause was buried in “nine pages of highly legalistic

Bellerman v. Fitchburg Gas & Electric Light Co. – Lack of Injury in Massachusetts Consumer Claims

Practice area:
Industries:

In 2014, we posted about the Massachusetts Supreme Judicial Court’s decision in Bellermann v. Fitchburg Gas & Electric Light Co.  In that case, plaintiffs sought relief under the Massachusetts consumer protection statute, G.L. c. 93A, because of the defendant utility’s alleged failure properly to prepare and plan for a major winter storm, and its allegedly deceptive communications made to consumers before and during the storm.  The SJC affirmed the trial court’s denial of class certification because plaintiffs could not establish that defendant’s conduct caused similar injury to consumers on a class-wide basis.

On remand, plaintiffs filed a renewed motion for class certification relying on a different liability theory – that they had suffered economic injury by overpaying for a level of emergency preparedness, required by Department of Public Utility regulations, which the defendant allegedly failed to provide.  This time a different trial court judge certified two classes under this diminution-in-value theory (a business customers class and a residential customers class), but

District of Massachusetts Grapples with Campbell-Ewald’s Unanswered Questions

Practice area:

Chief Judge Saris and Judge Sorokin of the District of Massachusetts recently tackled questions left unanswered by the Supreme Court’s opinion earlier this year in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (see Don Frederico’s prior post for a full discussion of Campbell-Ewald).

In South Orange Chiropractic Center, LLC v. Cayan LLC, 2016 WL 1441791, No. 15-13069 (D. Mass. April 12, 2016), the defendant, seeking to slip through the door left ajar by Campbell-Ewald, sought to deposit $7,500 with the court, providing the named plaintiff in a putative Telephone Consumer Protection Act (TCPA) class action with full relief. In addition, the defendant agreed to have judgment entered against it for allegedly sending plaintiff an unsolicited fax in violation of the TCPA, to pay for costs, to be enjoined from future conduct as to plaintiff or others, and to preserve evidence, and presented the plaintiff with a stand-alone settlement agreement,

Spokeo, Inc. v. Robins and the No-Injury Class Action

Practice area:

Class action practitioners have been closely watching Spokeo, Inc. v. Robins, a case before the Supreme Court on appeal from the Ninth Circuit.  Spokeo presented the Court with the opportunity to decide whether a plaintiff may maintain a class action absent any injury other than the violation of a statutory right.

Consumer Financial Protection Bureau Publishes Proposed Rule Precluding Class Action Waivers in Arbitration Clauses

Practice area:

The CFPB today released a proposed rule that would ban consumer financial services providers such as banks, credit card issuers, and small-dollar lenders from using mandatory arbitration clauses to prohibit consumers from filing or joining class actions against them. Please click here for further analysis and potential impacts of the proposed rule.

Pazol v. Tough Mudder, Inc.: Muddying the waters on proof of jurisdictional facts under CAFA?

Practice area:

The Class Action Fairness Act of 2005 (CAFA) was intended to make it easier for defendants to remove class action lawsuits from state court to federal court.  For example, CAFA introduced the concept of minimal as opposed to complete diversity, and waived the absolute one year deadline normally applicable to removal petitions as well as the requirement that all defendants join the petition.  It remains the removing defendant’s burden…

First Circuit Denies Review in Building Products Case

Practice area:
Industries:

On October 2, 2015, we posted about the District of Massachusetts’ denial of class certification in a case in which we represent a building products company that sold allegedly defective decking.  We’re pleased to report that yesterday the First Circuit denied Plaintiffs’ petition for review of the class certification denial under Rule 23(f). 

Defendants should embrace, rather than fear, Tyson Foods

Uncategorized
Practice area:

As my colleague, Katherine Kayatta, alluded to in her detailed post earlier this week, much of the initial commentary on the Supreme Court’s Tyson Foods decision has been to the effect that the decision may crack open the door to representative proof in class cases.  While plaintiffs will no doubt seek to use it that way, I don’t read the decision as providing a lot of meaningful support for such an effort.  And, indeed, I think defendants should embrace rather than fear the decision in many respects.

The Supreme Court’s Vindication of The In re Nexium Dissent

Uncategorized
Practice area:

We have commented previously on several aspects of the Supreme Court’s recent decision in Tyson Foods.  One additional important aspect that deserves special attention in the First Circuit is the issue of how to cull uninjured class members prior to judgment, an issue a divided panel of the First Circuit addressed in In re Nexium last year. 

Supreme Court Permits Use of Statistical Evidence to Prove Classwide Liability, but Declines to Adopt Categorical Rule

Practice area:

In Tyson Foods, Inc. v. Bouaphakeo, et al., the United States Supreme Court affirmed a judgment in favor of a class of Tyson employees, holding that averaged statistical analysis or so-called “representative evidence” presented by the class’s experts properly established classwide liability in the case.  The Court rejected, however, the requests of all parties and amici curiae to adopt a broad and categorical rule governing the use of representative and statistical evidence in class actions, stating that…