Katherine S. Kayatta

  • March 17, 2020

Two Courts of Appeals Issue Decisions Addressing Whether Bristol-Myers Squibb’s Personal Jurisdiction Holding Extends to Class Actions

Appeals, Class Actions, Litigation
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We have previously written about the Supreme Court’s personal jurisdiction decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) and how the federal district courts were applying it.  Now, two Courts of Appeals have finally weighed in, issuing the very first appellate decisions addressing whether Bristol-Myers applies to class actions in federal courts.

In Molock v. Whole Foods Market Group, Inc., No. 18-7162, 2020 WL 1146733 (D.C. Cir. March 10, 2020), plaintiffs, current and former employees of Whole Foods, brought a putative class action seeking to recover alleged lost wages.  Defendant moved to dismiss and argued that the court lacked personal jurisdiction over the claims of nonresident putative class members.  The district court denied the motion, and Whole Foods appealed.  In a 2-1 decision, the D.C. Circuit held that the question of whether Bristol-Myers applied to class actions was premature and need not be addressed because no class had been certified and

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  • February 27, 2019

Supreme Court Unanimously Rejects Equitable Tolling of Rule 23(f)’s Time Limit to Petition for Interlocutory Appeal

Appeals, Supreme Court
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Yesterday, the Supreme Court in Nutraceutical Corp. v. Lambert unanimously held that Rule 23(f) is not subject to equitable tolling. After the District Court for the Central District of California decertified a class of consumers who alleged that Nutraceutical’s marketing of a dietary supplement violated California consumer-protection law, plaintiff Lambert filed a motion for reconsideration, which the court subsequently denied. Fourteen days later, Lambert petitioned the Ninth Circuit Court of Appeals for permission to appeal the decertification order under Rule 23(f). Nutraceutical opposed Lambert’s petition, arguing that it was untimely because more than four months had passed since the court’s decertification order. The Court of Appeals, however, deemed the petition timely and accepted the appeal, stating that the Rule 23(f) fourteen-day deadline should be equitably tolled under the circumstances as the time limit is “non-jurisdictional, and that equitable remedies softening the deadline are therefore generally available,” and Lambert had acted diligently in moving for reconsideration and subsequently filing his petition within fourteen days after

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  • February 12, 2019

Amendments to Rule 23 Now in Full Swing

Appeals, Class Action Settlements, Class Notice
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On December 1, 2018, the amendments to Fed. R. Civ. P. 23 took effect, principally altering portions of the Rule governing class action notice, settlement, and appeals. Although the amendments were approved earlier in 2018 by the United States Supreme Court, they had been in the works for some time.

In 2014, a subcommittee of the Advisory Committee on Civil Rules met with class action attorneys from both the plaintiffs’ and defense bar all across the country in a series of meetings, seeking input on amendments to Rule 23. One such meeting was held in October 2014 during the ABA’s National Institute on Class Actions, a two-day conference well-attended by counsel in private practice, in-house counsel, academics, and reporters from class action news services. Those of us in attendance had the opportunity to offer the subcommittee suggestions on how to amend the Rule to better address problems we encounter in practice, such as cy pres awards, professional objectors, and issue classes. Fast-forward four years later, and

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  • February 14, 2018

Federal District Courts Tackle Application of Bristol-Myers Squibb Co. v. Superior Court to Class Actions

Jurisdiction
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In June 2017, we wrote about the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) and how it would likely affect attempts by plaintiffs to pursue multi-state or nationwide class actions.  As predicted, the case law is rapidly developing in the district courts, where, in reliance on Bristol-Myers’ holding, defendants challenge courts’ jurisdiction in cases where non-resident plaintiffs assert claims against non-resident defendants not subject to general jurisdiction.

We expect the post-Bristol-Myers landscape will continue to evolve and at some point, the various Circuit Courts of Appeals will begin weighing in.  Until then, below we provide a brief overview of recent notable district court decisions on this topic.  As this overview shows, the majority of courts have held that under Bristol-Myers, they do not have personal jurisdiction over the non-resident defendants with regard to claims brought by the non-resident plaintiffs.

Courts have taken

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  • January 26, 2017

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

Class Certifications, Consumer Class Actions
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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

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  • July 06, 2016

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

Consumer Class Actions, US District Court - Mass
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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,

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  • March 23, 2016

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

Employment Class Actions, Supreme Court
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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…

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  • December 19, 2014

Supreme Court Clarifies Defendants’ Evidentiary Burden at Removal Stage as to the Amount in Controversy and Halts Tenth Circuit from Applying More Onerous Requirements on Defendants

Class Action Fairness Act, Supreme Court
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The United States Supreme Court held this week in Dart Cherokee Basin Operating Co., LLCv Owens that defendants removing cases from state to federal court, including class action defendants…

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