Class Actions Brief Blog

Since March of this year, at least four purported class action lawsuits have been filed against universities, their affiliated athletic organizations, and the alleged operators of their athletic team websites, Sidearm Sports LLC and Learfield Communications LLC.

These cases allege that websites using Meta (Facebook) Pixel and other technology to monitor website traffic or activity violate the federal Video Privacy Protection Act and state and federal wiretapping statutes. An uptick of class action litigation under the VPPA began in 2022 with cases brought against a wide range ...

After a lively oral argument interrupted eight times by laughter, a unanimous Supreme Court reached a serious holding in Nutraceutical Corp. v. Lambert, No. 17-1094 (Feb. 26, 2019): that Fed. R. Civ. P. 23(f)’s 14-day period for requesting permission to appeal class certification orders cannot be equitably tolled.

The class-action plaintiff in Lambert sued for an alleged violation of the California consumer protection law. Although the district court originally allowed the plaintiff to proceed on behalf of a class, the court later ordered the class decertified. The plaintiff ...

Loyal readers may notice that Carolinas Class Action received a facelift and has been renamed Class Actions Brief. Given our experience with class actions across the country, we want to broaden the scope in order to report on cases outside the Carolinas. We hope you find this expansion both interesting and informative, and we welcome your feedback.

Thank you for reading,
Adam Doerr and David Wright
Editors

For what appears to have been a frivolous lawsuit, In re: Subway Footlong Sandwich Marketing and Sales Practices Litigation generated an interesting opinion from the Seventh Circuit full of class-action issues. The case originated when an Australian teenager posted a photo of an 11-inch Subway sandwich, with a tape measure, on his Facebook page. Coming in the midst of Subway’s $5 Footlongs^TM campaign, the picture went viral, and class-action cases were soon pending.

After early discovery showed that most “footlongs” were, in fact, 12 inches long, plaintiffs’ counsel ...

House Bill 239, which reduces the number of judges on the North Carolina Court of Appeals and provides for direct appeals of decisions regarding class action certification to the North Carolina Supreme Court, is now law. On April 26, the General Assembly voted to override Governor Cooper’s veto, and the bill has been enacted as Session Law 2017-7.

Our earlier analysis of the law did not address when the provision regarding appeals of class certification decisions would become effective. Similar legislative changes have generally informed practitioners and courts that they ...

Governor Cooper vetoed House Bill 239 on April 21, rejecting the General Assembly’s effort to reduce the number of judges on the North Carolina Court of Appeals from 15 to 12. The bill has been quite controversial, and four former North Carolina Supreme Court justices have said it would “seriously harm our judicial system.”  Although the bill does not speak in partisan terms, its practical effect would be to prevent Governor Cooper from appointing three (or perhaps two) new judges to the Court of Appeals to replace Republican judges who will reach the mandatory retirement age ...

Rep. Bob Goodlatte (R-Va.), the Chairman of the House Judiciary Committee, recently introduced a bill that would make significant changes to federal class action litigation. The Fairness in Class Action Litigation Act of 2017 (H.R. 985) states that it is intended to allow prompt recoveries to plaintiffs with legitimate claims and “diminish abuses in class action and mass tort litigation that are undermining the integrity of the U.S. legal system.”

In its current form, the draft bill would likely eclipse the 2005 passage of the Class Action Fairness Act as the most significant ...

As we explained in Part 1 of our analysis of Fisher v. Flue-Cured Tobacco Cooperative Stabilization Corporation, the North Carolina Supreme Court recently exercised jurisdiction over an interlocutory appeal and affirmed the certification of a class of hundreds of thousands of current and former tobacco farmers. In the first part, we discussed the Court’s jurisdictional analysis and North Carolina’s unique approach to interlocutory appeals of class certification orders. In this post, we discuss the Court’s substantive analysis of the class certification issues.

The ...

In its last batch of opinions for 2016, the North Carolina Supreme Court affirmed the certification of a class of more than 800,000 tobacco farmers in Fisher v. Flue-Cured Tobacco Cooperative Stabilization Corp. Because Fisher raises a number of interesting class certification issues, and because the North Carolina Supreme Court rarely issues opinions addressing North Carolina Rule 23, we are covering the decision in two parts. In this installment, we provide the background of the case and address the Court’s decision to accept jurisdiction over this interlocutory appeal. In ...

Earlier this year, we reported that Multiple Studies Show Increase in Securities Class Actions. Cornerstone Research, one of the groups covered in our earlier report, recently issued its 2016 Midyear Assessment. This new analysis, which covers cases filed in January through June of this year, is consistent with several of the trends we reported previously, including the increasing number of securities class actions, the rise in the number of cases against smaller companies, and the increase in the number of Fourth Circuit cases.

Of particular interest is the significant increase ...

Recent studies by PricewaterhouseCoopers, NERA Economic Consulting, Cornerstone, and Kevin LaCroix of D&O Diary have all found that federal securities class actions are on the rise. According to PwC, the data shows a trend towards more cases filed against smaller companies, especially for claims regarding accounting irregularities. Smaller companies also face a significant risk of claims regarding inadequate internal controls over financial reporting, likely due to their smaller size and more limited resources.

NERA found that standard federal securities class actions ...

Last month, we previewed the challenge to a settlement of litigation involving the Reynolds-Lorillard merger. The Business Court has helpfully made available the transcript of the hearing on approval of the settlement, which took place on February 12. At the hearing, the Court made clear that it was quite familiar with recent changes in merger litigation in Delaware, including the Trulia case, and stated that it was reviewing the settlement under “strict scrutiny,” not a “rubber stamp standard.” Notwithstanding a shareholder objection supported by Professor Sean ...

Cone v. American Airlines Group Inc., a case filed this Thursday in the Middle District of North Carolina, is one of dozens of antitrust suits filed against the major U.S. airlines in courts across the country in recent weeks. With the addition of North Carolina, suits are now pending in at least seven states and the District of Columbia. Terry Maxon, who blogs about the airline business for the Dallas Morning News, has identified at least 75 such cases.

The Plaintiffs in the MDNC case, as in the other actions, allege that the major domestic airlines conspired to raise the price of airline ...

Late last year, we explained the tricky statute of limitations issues that can arise regarding “cross-jurisdictional class action tolling.” The issue arose in some of the many Pella window cases pending before Judge Norton in the District of South Carolina. Those cases have now raised several more interesting timeliness issues—when plaintiffs can consolidate pending cases to avoid dismissal on timeliness grounds, and when a failure to move for certification waives class claims.

In October of last year, the Judicial Panel on Multidistrict Litigation (JPML) transferred ...

Not every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of July's filings:

Alexander v. Pella Corporation, No. 15-1828 (4th Cir. July 28, 2015) (docketing appeal from Order dismissing claims as untimely because cross-jurisdictional class action tolling did not apply and class members were not unnamed members of earlier suit and their claims did not relate back to the earlier complaint)

Presson v. DARA BioSciences, Inc., et. al., No. 15-CVS-9775 (Wake County Super. July 27, 2015) (putative class action on behalf of ...

This post is contributed by R. Steven DeGeorge, an attorney at Robinson Bradshaw & Hinson, whose practice focuses on insurance coverage, product liability, toxic tort and environmental disputes.

We don’t often report on insurance coverage issues in this space, but the importance of possible coverage for expensive class action litigation should not be overlooked. On May 13, Judge Voorhees issued a decision addressing how an insurer’s duty to defend class action litigation is affected by the definition of a putative class. The policyholder was sued in multiple putative class ...

In two recent studies of shareholder class actions over corporate mergers, the authors reached conclusions consistent with our experience with such cases in North Carolina: that nearly every acquisition of a public company results in shareholder litigation. The Cornerstone Research report found that 93% of public company acquisitions were challenged. Takeover Litigation in 2014, a separate study by Matthew Cain of the SEC and Steven Solomon of UC Berkeley, found that 94.9 of deals were challenged. (The two studies used slightly different cutoffs for their samples.)

Both ...

Unlike many pretrial rulings, “[a] district court’s order denying or granting class status is inherently tentative.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n. 11 (1978). Rule 23 expressly provides that “[a]n order that grants or denies class certification may be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). Indeed, as the Fourth Circuit observed, in a case our firm handled, “an order certifying a class must be reversed if it becomes apparent, at any time during the pendency of the proceeding, that class treatment of the action is ...

Funds from a class action settlement are generally distributed to class members. But in some cases, not all funds are claimed. In others, it may not even be possible or practical to distribute any funds to individual class members. A “cy pres” distribution is one way of dealing with this issue. The concept comes from trust law and means “as near as possible.” The goal of a cy pres settlement is to distribute funds in a way that indirectly benefits the class members.

Last fall, the issue of “cy pres” settlements got some press when Chief Justice Robert issued a warning note about ...