Joshua D. Dunlap

  • July 16, 2020

A Survey and Comparison of Federal and Maine Class Action Law

Class Actions, Maine Decisions
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I’m pleased to say that I recently published an article, Class Actions: A Survey and Comparison of Federal Law and Maine State Law, that considers Maine class action law in light of federal law, particularly case law in the First Circuit.  While class actions are prevalent at the national level, the story thus far has been different in Maine – but that may be changing.

Since 2000, Maine courts have more frequently addressed class action issues. That trend could accelerate, given that plaintiffs may increasingly seek recourse to state courts if the Supreme Court is perceived to be taking a more hostile view of class actions. If this trend continues, Maine law regarding Rule 23 will continue to become more robust. It is likely that Maine law will continue to track federal class action law to some extent, though it has diverged—and may continue to diverge—to some extent as well.

The article provides a primer on the growing body

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  • November 18, 2019

After-Effects of In re Asacol: Recent District Court Decisions on Certification and Uninjured Class Members

Antitrust Class Actions, Class Certifications, Consumer Class Actions, First Circuit Decisions, US District Court - Mass, US District Court - Rhode Island
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About a year ago, I observed that the First Circuit in In re Asacol Antitrust Litigation had constrained plaintiffs’ ability to rely on affidavits to prove injury-in-fact.  In so doing, the First Circuit substantially curtailed its prior decision in In re Nexium Antitrust Litigation, which certified a class containing uninjured consumers because class members would be able to prove injury via affidavit.  In its In re Asacol decision, the First Circuit made it clear that trial-by-affidavit is a permissible means to establish injury only if the affidavits are unrebutted.

As the D.C. Circuit observed in relying on In re Asacol, that case “sharply limited” In re Nexium and established that “any winnowing mechanism” used to identify uninjured class members

must be truncated enough to ensure that common issues predominate, yet robust enough to preserve the defendants’ Seventh Amendment and due process rights to

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  • April 24, 2019

Lamps Plus, Inc. v. Varela: Class Arbitration Must Be Expressly Authorized

Class Arbitration, Supreme Court
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Class arbitration came back before the Supreme Court this term in Lamps Plus, Inc. v. Varela.  Today, the Supreme Court issued a 5-4 decision in Lamps Plus, holding that, under the Federal Arbitration Act, “courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.”  Rather, class arbitration must be expressly authorized by contract.

The facts of Lamps Plus are straightforward.  An employee had signed an arbitration agreement upon being hired to work for Lamps Plus.  After a data breach, the employee sued Lamps Plus in federal court.  Lamps Plus filed a motion to compel individual arbitration, and the district court granted the motion to compel but authorized arbitration on a class basis.  The Ninth Circuit affirmed, reasoning that the arbitration provision was ambiguous as to class arbitration and must be construed against the employer under California’s contra proferentem rule that ambiguities in a contract must be

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  • March 20, 2019

Questions Regarding Cy Pres Settlements Remain after Frank v. Gaos

Class Action Settlements, Supreme Court
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Today, in a case that was being watched closely for its potential ramifications for class settlements, the Supreme Court opted not to address the merits of the cy pres issues that were presented to it.  Frank v. Gaos involved a settlement that would have distributed millions of dollars to cy pres recipients and class counsel, but no money to class members.  Objectors complained that the settlement did not comply with the requirement that class settlements be “fair, reasonable and adequate,” and the Supreme Court granted certiorari to resolve that issue.  It ultimately did not.

Instead, the Supreme Court, in a per curiam decision, vacated and remanded for the lower courts to address whether the named plaintiff had Article III standing in light of Spokeo, Inc. v. Robins.  After the district court rejected the argument the plaintiff lacked injury and thus standing to pursue its claim that Google violated federal law by

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  • February 19, 2019

In re Celexa and Lexapro – The First Circuit Weighs in on China Agritech and American Pipe Tolling

Class Certifications, First Circuit Decisions
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The Supreme Court meant what it said in China Agritech, Inc. v. Resh – that is the primary lesson from the First Circuit’s January 30th decision in In re Celexa and Lexapro Marketing and Sales Practices Litigation.  As my partner, Don Frederico, explained in a blog post last year, the Supreme Court observed in China Agritech that its prior ruling in American Pipe & Constr. Co. v. Utah “tolls the statute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails.”  China Agritech went on to hold that “American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.”  The First Circuit, in In re Celexa and Lexapro, rejected a plaintiff’s attempt to read China Agritech narrowly.

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  • October 17, 2018

In re Asacol Antitrust Litigation – An Antidote to In re Nexium and “Ascertainability-by-Affidavit”

Antitrust Class Actions, First Circuit Decisions, US District Court - Mass
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When last I wrote about ascertainability, I noted that a debate over the propriety of “ascertainability-by-affidavit” continued to percolate within the First Circuit even as lower courts relied on In re Nexium Antitrust Litigation to certify classes containing uninjured class members.  Specifically, I noted a couple of developments.  First, in In re Asacol Antitrust Litigation, Judge Casper of the District of Massachusetts had rejected defendants’ ascertainability arguments and certified a class containing uninjured individuals, relying on In re Nexium for the proposition that uninjured individuals could be identified and excluded after certification via submission of affidavits.  Second, I also observed that Judge Kayatta had continued, via his dissent from denial of a Rule 23(f) petition in In re Dial Complete Marketing and Sales Practices Litigation, to express concern about the “casual reliance on ‘say-so’ affidavits” apparently sanctioned by In re Nexium.  In his words, the First Circuit

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  • June 26, 2018

In Cullinane v. Uber, First Circuit Addresses Arbitration Clauses in Online Contracts

Arbitration, Class Arbitration, Consumer Class Actions, First Circuit Decisions
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Yesterday the First Circuit weighed in on a hot topic – the enforceability of arbitration provisions in online contracts.  In Cullinane, several plaintiffs brought a putative class action alleging that Uber had violated Massachusetts’ consumer protection statute by assessing certain fees.  Uber filed a motion to compel arbitration under its Terms of Service, which contained an arbitration provision and class action waiver.  After the district court granted the motion, the First Circuit reversed, finding the arbitration provision unenforceable because Uber did not make its Terms of Service sufficiently conspicuous when its customers created a ride-sharing account.  Cullinane underscores the importance of obtaining customers’ affirmative consent to an online contract.

At the outset, the First Circuit acknowledged that the Federal Arbitration Action places arbitration provisions upon the same footing as other contract provisions. It also emphasized that arbitration is a matter of contract and that a valid contract must exist in order for the arbitration provision to be enforced.  The

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  • December 07, 2017

Ascertainability & In re Nexium – The Side-Effects Continue

Antitrust Class Actions, First Circuit Decisions, US District Court - Mass, US District Court - New Hampshire
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As various contributors to this blog have noted (here, here, and here), a divided panel of the First Circuit adopted a “loose” approach to the ascertainability requirement in In re Nexium Antitrust Litigation.  Specifically, while acknowledging that “the definition of [a] class must be ‘definite,’” the majority concluded that this requirement could be satisfied by a claims process by which class members would submit affidavits to show that they were injured.  According to the majority, such a process would be sufficiently feasible and protective of the defendants’ Seventh Amendment and due process rights.  Judge Kayatta authored a vigorous dissenting opinion, noting the “limitations of using affidavits in the manner proposed by the majority.”

Recently, the District of Massachusetts relied on In re Nexium to find that a proposed class was sufficiently ascertainable under similar circumstances.  In that case, In re Asacol Antitrust Litigation, end-payor purchasers of

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  • April 19, 2017

A New Justice: Any Change For Class Actions?

Current Affairs, Supreme Court
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This week, Justice Gorsuch donned his black robes and began hearing arguments alongside his new colleagues on the Supreme Court.  With his elevation to the high court, Justice Gorsuch assumes many new responsibilities.  Some, of the lighter kind, include opening the door during conferences with his colleagues and assuming oversight of the Court’s cafeteria menu.  More serious responsibilities will include weighing in on important class action cases that will undoubtedly be heard by the Court in the future.

Despite his lengthy judicial record from having served a decade on the Tenth Circuit, there are relatively few clues regarding Justice Gorsuch’s approach to class actions.  While on the court of appeals, he participated in only a few class action cases, which is not surprising given that the Tenth Circuit has not been a hotbed of class actions.  His handful of class action opinions, however, evidences not only his gift with the pen but also a restrained, textual approach to Rule 23.  These characteristics are

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  • May 17, 2016

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

Consumer Class Actions, Supreme Court
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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.

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