Class Action Defense

  • May 23, 2023

Part 2 – Slowing the Spread of Litigation: An Update on First Circuit COVID-19 Tuition Refund Class Actions

Class Action Litigation, Class Actions, Class Certifications, First Circuit Decisions, Litigation, Massachusetts Decisions, US District Court - Mass
Authors:
Practice area:

Part 2: The Legal Backdrop

In Part 1 of this series, we provided a brief overview and introduction of the Boston-based COVID-19 tuition refund class action cases, noting generally that most similar suits haven’t made it very far, as courts tend to rule early and often for the educational institution. Below is a brief discussion of some common pitfalls that have repeatedly plagued this type of litigation.

Framing the Case

One threshold hurdle is that COVID-19 tuition reimbursement cases against public colleges and universities are often dismissed in the earliest stages of litigation under sovereign immunity, leaving cases against private institutions with the most possibility for advancement. Even in those cases, however, courts often find that plaintiffs’ claims are not properly framed. For example, although some states permit claims for educational malpractice, plaintiffs often run into problems in attempting to establish a basis on which to evaluate the quality of services provided by the educational institution. To

Continue Reading...
  • May 18, 2023

Supreme Court Agrees to Hear Appeal from First Circuit of Website Accessibility Tester Case

Appeals, Class Action Litigation, Class Actions, Consumer Class Actions, First Circuit Decisions, Litigation, Standing, Supreme Court, US District Court - Maine
Authors:
Practice area:

On March 27, 2023, the Supreme Court granted a petition for a writ of certiorari by Acheson Hotels in Acheson Hotels, LLC v. Deborah Laufer, Case No. 21-1410. In its petition to appeal from an earlier First Circuit decision analyzed in a prior post,  Acheson Hotels asks the Supreme Court to resolve the following question:

Does a self-appointed Americans with Disabilities Act “tester” have Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation?

In support of its petition, Acheson Hotels argued that the question was ripe for resolution by the Supreme Court based on the distinct divide among the circuit courts on the question presented and the errors it claims plagued the First Circuit’s decision.

The First Circuit’s Decision on Laufer’s Standing to Bring her Claim

In

Continue Reading...
  • April 28, 2023

Slowing the Spread of Litigation: An Update on First Circuit COVID-19 Tuition Refund Class Actions

Class Action Litigation, Class Actions, First Circuit Decisions, Litigation, Massachusetts Decisions, US District Court - Mass
Authors:
Practice area:

Part 1: Introduction and Overview

Earlier this month, Boston University prevailed in one of the few surviving Boston-based COVID-19 tuition refund class action suits. The U.S. District Court in Boston granted BU’s Motion for Summary Judgment finding that BU “did not make an open-ended promise to provide an ‘on-campus experience’ in exchange for a ‘semester cost.’” Unlike student-plaintiffs in other, largely unsuccessful COVID tuition refund litigation, the plaintiffs in this case made arguments based not on the difference in quality of in-person versus online education but rather based on their contracts with the university, which plaintiffs said constituted a “binding promise to provide students in-person instruction (or tuition refunds should in-person classes become unavailable), a promise on which students relied in prospectively paying their tuition.” Although the Court disagreed, Judge Richard Stearns, citing a still-live COVID tuition litigation case against Brandeis University, found that “BU must still provide restitution for the difference in value between what they were

Continue Reading...
  • April 27, 2023

District of Maine Applies the First Circuit’s Murray Decision to Approve Class Action Settlement

Appeals, Class Action Settlements, Class Actions, Class Certifications, Class Representative, Employment Class Actions, First Circuit Decisions, Lead Plaintiff, Litigation, US District Court - Maine
Authors:
Practice area:

In early 2023, the District of Maine was the first district court to apply and interpret a recent and notable First Circuit ruling that should be top-of-mind for class action attorneys and litigants seeking approval of settlements for cases brought on behalf of multiple plaintiff classes and including class representative incentive awards.

That notable First Circuit class action decision from December 2022 was Murray v. Grocery Delivery E-Services USA, Inc., 55 F.4th 340 (1st Cir. 2022), in which the appellate court considered a challenge to the approval of a class action settlement under Federal Rule 23(e).

The First Circuit Scrutinizes Multi-Class Settlements and Deepens the Circuit-Court Divide on Incentive Awards

In Murray, with a 31-page opinion written by Judge Kayatta, the First Circuit vacated the district court’s approval of the proposed settlement and remanded for further proceedings. The case is particularly noteworthy for its determination that members of different classes required separate

Continue Reading...
  • November 16, 2022

District of Massachusetts Dismisses Data Breach Class Action for Lack of Injury

Class Actions, Consumer Class Actions, First Circuit Decisions, Litigation, Privacy Class Actions, Standing, US District Court - Mass
Authors:
Practice area:

On October 18, 2022, in Webb v. Injured Workers Pharmacy, LLC, the District of Massachusetts dismissed a class action complaint brought by former pharmacy patients alleging that their sensitive personal information had been exposed in a data breach affecting more than 75,000 customers. In its analysis, the court determined that the named plaintiffs and putative class members could not satisfy the injury-in-fact requirement for constitutional standing. Plaintiffs Webb and Charley had claimed the breach caused “anxiety, sleep disruption, stress, and fear” and cost them “considerable time and effort” monitoring their accounts.

The court rejected these factual allegations as an insufficient basis to confer constitutional standing under Article III:

The Complaint does not sufficiently allege that the breach caused any identifiable harm. It is only alleged that Webb and Charley spent “considerable time and effort” monitoring their accounts and, in Webb’s case, dealing with the IRS. Plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based

Continue Reading...
  • August 09, 2022

Massachusetts Supreme Judicial Court Reverses Denial of Motion to Compel Arbitration, Holds Grubhub Drivers Must Arbitrate Employment Claims

Class Actions, Class Arbitration, Employment Class Actions, Massachusetts Decisions
Authors:
Practice area:

On July 27, 2022, in Archer v. Grubhub, the Massachusetts Supreme Judicial Court considered whether Grubhub delivery drivers within the Commonwealth are exempt from arbitration under Section 1 of the Federal Arbitration Act (FAA). FAA Section 1 exempts “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The SJC joined numerous other courts in determining such drivers are not a class of transportation workers exempt from the FAA and that the electronic arbitration agreements with class action waivers among the drivers and Grubhub are binding. The ruling reversed the Superior Court judge’s denial of Grubhub’s motion to compel arbitration.

Section 1 of the FAA Does Not Exempt Grubhub Drivers

At the heart of the case was an electronic agreement among the plaintiff drivers and Grubhub that was executed through an online portal through which the plaintiffs had to activate a hyperlink titled “Arbitration Agreement” with an option to view the text of the

Continue Reading...
  • May 06, 2022

Is It Time to Update Mass. R. Civ. P. 23?

Class Actions, Jurisdiction, Massachusetts Decisions
Practice area:

Over the past 25 years, I have had the good fortune of getting to know and working with both plaintiff and defendant class action lawyers from many states, and to teach class action practice in dozens of local and national CLE programs and at a great law school. I also have represented clients in class action cases in many jurisdictions, both state and federal, including the state courts of Massachusetts. All of these experiences have given me the opportunity over an extended period to learn and reflect upon the varieties of class action practice.

When I speak with my counterparts from other states, one thing I tell them invariably makes their jaws drop — namely, that Massachusetts’ version of Rule 23 does not allow opt outs. I have not done an exhaustive review of all state class action rules, but based on my experience and my interactions with out-of-state class action lawyers, we seem to be the only state that does not permit class members to

Continue Reading...
  • April 19, 2022

Kingara v. Secure Home Health Care Inc. and the Precertification Powers of the Massachusetts Courts

Class Actions, Class Notice, Massachusetts Decisions
Practice area:

The Backdrop

Class actions are like butterflies; they must undergo a metamorphosis before they fly. The transformation occurs when a court grants class certification. At that instant, what had started out as an individual lawsuit emerges as its own entity, with a number of legal consequences flowing from the change. Among them, plaintiff’s counsel becomes class counsel, representing and owing fiduciary duties to the entire class; the court also becomes a fiduciary, charged with its own responsibility for protecting absent class members (including, importantly, the duty to scrutinize proposed class settlements); and class members become represented parties, which triggers the ethical rules that limit or prohibit defense counsel from communicating with them.

The situation before class certification is different. Because the class does not yet exist, most courts recognize that the fiduciary duties of plaintiff’s counsel and the court to putative class members do not kick in (or, at least, not fully), and defense counsel is generally free to communicate directly with

Continue Reading...
  • July 16, 2020

A Survey and Comparison of Federal and Maine Class Action Law

Class Actions, Maine Decisions
Authors:
Practice area:

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

Continue Reading...
  • April 03, 2020

First Circuit Holds That College Does Not Owe Fiduciary Duties to Students, Rejects Data Privacy Class Action Claims

Class Actions, First Circuit Decisions, Privacy Class Actions
Authors:
Practice area:

On March 25, 2020, the First Circuit Court of Appeals in Squeri v. Mount Ida College upheld the lower court’s dismissal of prospective and former Mount Ida College students’ claims against the college and its Board of Trustees arising from the college’s abrupt closure and sale of its campus to UMass Amherst in May 2018. No. 19-1624, 2020 WL 1445400 (1st Cir. Mar. 25, 2020). On appeal, the student plaintiffs urged the First Circuit to dramatically expand students’ ability to sue colleges under Massachusetts law, opening the door to new litigation risks for academic institutions. The First Circuit declined this invitation, noting that Massachusetts law does not allow for the broader theories of liability they sought to assert.

The students’ allegations against Mount Ida and the lower court’s dismissal of their claims

The students’ class action claims arose out of the college’s abrupt and permanent closure after six weeks’ notice to students that they would need to continue their studies

Continue Reading...