• 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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  • November 06, 2018

In re Asacol Antitrust Litigation: Article III Standing in Multi-State Class Actions

Antitrust Class Actions, Class Certifications, First Circuit Decisions, Jurisdiction
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In his October 17th post, Josh Dunlap describes in detail the First Circuit’s landmark ruling in In re Asacol Antitrust Litigation concerning classes that include uninjured members. As Josh points out, although the district court had referred to ascertainability in its decision certifying the class, the First Circuit opinion reversing class certification did not, and for good reason. The case did not raise an ascertainability issue at all, but rather an issue of an overly broad class definition that encompassed significant numbers of uninjured class members (the court estimated 10 percent of potential class members had not been harmed because they would have purchased the branded drug even had the generic been allowed on the market). The ill-fated class was defined to include all purchasers of the defendant’s product, not just all such persons who would have purchased the generic alternative. Presumably, all purchasers of the drug could have been identified through prescription records, but plaintiffs failed to show that it

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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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  • June 11, 2018

SCOTUS Resolves Circuit Split Regarding American Pipe Tolling

Supreme Court
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In an opinion authored by Justice Ginsburg and joined by all of the Justices (though with only a concurrence from Justice Sotomayor), the Supreme Court today ruled that its 1974 ruling in American Pipe & Constr. Co. v. Utah does not toll the statute of limitations for successive class actions. Justice Ginsburg summarized the Court’s holding as follows:

American Pipe 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. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.

The case, China Agritech, Inc. v. Resh, was the third in a series of putative class actions brought to address alleged federal securities law violations. Each of the first two lawsuits was filed within the two-year statute of limitations

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  • May 23, 2018

Supreme Court Affirms Class Action Waivers in Employment Arbitration Agreements

Class Arbitration, Employment Class Actions, Supreme Court
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Since the Federal Arbitration Act’s (FAA) enactment in 1925, parties have sparred over the enforceability of arbitration agreements in a number of contexts. In recent years, the battle has focused on the enforceability of class or collective action waivers, pursuant to which parties agree to forgo their right to proceed on a class basis and to pursue claims in arbitration on an individual basis instead. Between 2011 and 2013, the United States Supreme Court issued several opinions enforcing class action waivers in the consumer context, but none dealt with employment arbitration agreements. On Monday, the United States Supreme Court removed any doubt that class or collective action waivers contained in employment arbitration agreements are enforceable, affirming a potential cure for the employment class action epidemic.

The argument that employment class action waivers are different from consumer class action waivers derives from Section 7 of the National Labor Relations Act (NLRA), which guarantees employees the right to engage in collective activities

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  • March 30, 2018

Campbell-Ewald in Massachusetts

Consumer Class Actions, Jurisdiction, Massachusetts Decisions
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On March 6th, in Silva v. Todisco Services, Inc., Judge Kenneth Salinger, sitting in the Business Litigation Session of the Massachusetts Superior Court, held that a defendant’s tendering of the maximum amount of damages a plaintiff might recover in a putative class action did not moot either the plaintiff’s individual claims or the claims of putative class members. In rejecting defendant’s “pick-off” attempt, Judge Salinger aligned Massachusetts state court practice with federal case law, including the United States Supreme Court’s decision in Campbell-Ewald v. Gomez, and subsequent federal decisions. His reasons for doing so, while perhaps consistent with Massachusetts precedent, were somewhat different from the federal court rationale and could have unintended consequences.

In Campbell-Ewald, the Supreme Court held that an unaccepted offer of judgment does not moot a named plaintiff’s claim, and therefore cannot prevent a putative class action from moving forward. The Court based its decision on principles of contract law (once rejected, an

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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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  • 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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  • November 14, 2017

Consumer Financial Services Arbitration: Another Perspective

Arbitration, Class Arbitration, Consumer Class Actions, Legislation
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Much has been said and written about Congress’ rejection of the CFPB proposal to ban class action waivers in arbitration agreements between consumers and financial services companies. One of the most frequent statements I have heard from some politicians in the media is that Congress has voted to ban class actions against banks. As is true with many political statements from both sides of the aisle, this one is only partially true. Here are a few additional (but not alternative) facts to place Congress’ action in context.

  • The CFPB rule, and not Congress’ rejection of it, would have represented a change in the law. Since the Supreme Court’s 2011 decision in AT&T Mobility v. Concepcion, class action waivers have generally been enforceable in contracts for consumer financial services. The CFPB proposed rule was based on the agency’s authority granted under the Dodd-Frank Act. However, Congress and the President had the final say regarding whether the rule would take effect, and
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