Consumer Class Actions

Ninth Circuit Widens Circuit Split on Ascertainability in Briseno v. ConAgra Foods, Inc.

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On this blog, we have previously written about the growing split among the federal circuits concerning courts’ approaches to ascertainability. The Third Circuit, in a string of cases within the last five years, adopted a test requiring that class members must be identifiable without extensive and individualized fact-finding or “mini-trials,” and a plaintiff must present evidentiary support to demonstrate that a model it proposes to satisfy Rule 23’s requirements will be effective.  The Eleventh Circuit in Karhu v. Vital Pharmaceutical, Inc. similarly found that a plaintiff must establish an administratively feasible method by which class members can be identified.

In Mullins v. Direct Digital, LLC, the Seventh Circuit rejected the Third Circuit’s approach, finding that the Third Circuit’s test was a “heightened” requirement above and beyond Rule 23’s requirements.  The Seventh Circuit adopted a more lenient approach and looks only at whether a class can be ascertained by objective criteria, not whether there’s an administratively feasible way to identify

Spokeo Should Not Fall on Deaf Ears in Privacy Class Actions

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On the May morning that the Supreme Court handed down its ruling in Spokeo, Inc. v. Robins, I was among those who read the case as a bellwether. The Spokeo appeal addressed a long-festering issue about whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm (and therefore cannot otherwise invoke federal jurisdiction) by authorizing a private right of action based on a bare violation of a federal statute.  Spokeo is a Fair Credit Reporting Act (FCRA) case, but its standing issue infects many other statutory privacy cases. FCRA is part of a growing regime of statutes creating per-violation monetary penalties for consumers to pursue whenever a business strays from the particular statute’s procedural requirements. The Telephone Consumer Protection Act (TCPA), the Fair Debt Collection Practices Act (FDCPA), and the Fair and Accurate Credit Transactions Act (FACTA) are examples of the federal regime, while California’s Invasion of Privacy Act (CIPA) and Song-Beverly Act are two state

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

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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

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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

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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

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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

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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.

First Circuit Denies Review in Building Products Case

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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). 

A Byrd in the Hand

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Recently, I had the privilege of moderating a panel in Boston discussing hot topics in class actions.  We had a terrific group of panelists, including three (besides myself) who represent defendants in class actions and one who represents plaintiffs.  This imbalance was attributable to the nature of the organization sponsoring the program as a business-oriented legal foundation.