Class Actions Brief Blog

Since the Supreme Court’s opinion in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), litigants and courts alike have struggled to determine whether certain intangible harms are “concrete, particularized, and actual or imminent” such that a plaintiff has standing to sue. Indeed, this blog has previously analyzed cases addressing that question here and here.

The Fourth Circuit weighed in recently, holding that a subset of plaintiffs whose drivers’ license numbers were leaked and published online had standing to sue, but the plaintiffs whose numbers were leaked and ...

In Labcorp v. Davis, the U.S. Supreme Court was poised to decide if a federal court can certify a class that includes members who lack any Article III injury.  But as we discussed last month, the oral argument suggested that a procedural snag would stop the Court from deciding that question.

Sure enough, the Court has now decided not to decide the class-action question in Labcorp.  In a one-sentence order issued yesterday, June 5, the Court dismissed its review of the case as improvidently granted.  That order leaves the Ninth Circuit decision in Labcorp intact and the legal issue that has ...

A few months ago, we wrote about the U.S. Supreme Court’s decision to grant review in Labcorp v. Davis.  As we noted at the time, Labcorp raises a long-debated question of class-action law:  Can a federal court certify a class that includes members who lack any Article III injury?  As we also noted, the Supreme Court was expected to answer this question almost a decade ago in Tyson Foods, Inc. v. Bouaphakeo, but ultimately did not resolve it.

The wait may go on.  The Supreme Court held oral argument in Labcorp on April 29.  After more than two hours of discussion, most of the Justices appeared to ...

Life has its disappointments. Sometimes, you think you’ve won a free car, but it turns out that you’ve won only a couple of dollars. And sometimes, you think that an appellate court will clarify a thorny issue of class-action law, but the court leaves that issue unresolved. These scenarios coalesced in a recent decision from the North Carolina Supreme Court: Surgeon v. TKO Shelby LLC.

The Surgeon case arose when hundreds of people allegedly suffered the first disappointment above. A car dealership mailed out flyers that advertised a scratch-off contest. According to the ...

Our colleague Erik Zimmerman reported in an earlier post the memorable declaration from defense counsel in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021): when a legal violation results in no harm, those involved should “break out the champagne,” not “break out a lawsuit.”

In TransUnion, decided in 2021, the Supreme Court grappled with a question that has vexed federal courts in recent years: how much leeway should plaintiffs have to bring federal suits based on “intangible harms”? Article III courts have been redressing obvious harms to person and pocketbook since the ...

Class actions have long been difficult to certify in fraud cases.  But a recent district court decision in California takes a new approach that would make class certification in fraud cases the norm.  That decision is now on appeal to the Ninth Circuit, where Robinson Bradshaw filed an amicus brief on behalf of the Chamber of Commerce of the United States of America.  Our brief highlights the flaws in the district court’s decision and the damage that its approach to class certification would inflict on American businesses and the national economy.  This post summarizes our brief.

In DZ ...

Earlier this year, the Fourth Circuit published an updated roadmap for addressing objections to class settlement. The decision, 1988 Trust for Allen Children Dated 8/8/88 v. Banner Life Insurance Co., 28 F.4th 513 (4th Cir. 2022), will be an important resource for parties hoping to bypass objections en route to settlement. It will also be an important guidepost for class members pursuing objections with hopes of slowing down settlement traffic.

Allen Trust clarifies—for the first time in the Fourth Circuit—the burden of proof that applies when a class member objects to ...

Updated 8-16-22: StarKist and the other defendants filed their petition for certiorari in the Olean Wholesale Grocery case. A link to the Petition is here.

In September 2021 and again in June of this year, we wrote about the Ninth Circuit’s opinion in Olean Wholesale Grocery v. Bumble Bee Foods and the court’s opinion following rehearing en banc. The defendants in Olean obtained a extension to file a certiorari petition with the Supreme Court through August 8, 2022, so the last word may not have been written in Olean.

On July 5, 2022, the Ninth Circuit issued another notable class ...

Last September, we wrote about the Ninth Circuit’s opinion in Olean Wholesale Grocery v. Bumble Bee Foods and the court’s decision to rehear the case en banc.  The en banc Ninth Circuit has now waded back into the class certification waters, with mixed results for defendants.  While the en banc court tossed back the panel’s holding that the presence of more than a de minimis number of uninjured class members is fatal to certification, it also clarified certain procedural matters under Rule 23 that may lead to smoother sailing for defendants at the certification stage.

As we ...

In order to have a class certified, the plaintiffs have the burden of proving to the satisfaction of the court, “after a rigorous analysis,” that they comply with Rule 23—that is, that “there are in fact sufficiently numerous parties, common questions of law or fact, etc.”  Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 350-51 (2011) (internal quote omitted).  One of the findings required by Rule 23 is that common issues predominate, as discussed in last month’s blog post by Travis Hinman.  Predominance as to damages requires a showing that the members of a proposed class were ...

The extent to which the presence of uninjured class members may defeat class certification remains unsettled. While, standing alone, the existence of some uninjured class members may not be not fatal (depending on the circuit), just how many is too many to satisfy the predominance requirement of Rule 23(b)(3) is still in flux.

The Ninth Circuit waded into this debate earlier this year in Olean Wholesale Grocery Coop. Inc. v. Bumble Bee Foods LLC. Before the case made its way to the appellate court, the U.S. District Court for the Southern District of California certified three classes ...

At oral argument in TransUnion LLC v. Ramirez, TransUnion’s counsel told the U.S. Supreme Court that a lack of harm is a reason “to break out the champagne, not to break out a lawsuit.” The Court has now decided TransUnion, and its decision may make it harder for class-action plaintiffs to sue for non-traditional harms. As a result, class-action defendants may be inclined to pop a cork or two. The full implications of the decision remain to be seen, however, so the best course for now may be to keep the refreshments on ice.

TransUnion was a class action brought under a federal statute ...

It appears that the answer may be yes. In 2017, the General Assembly amended G.S. § 7A-27 to permit defendants to take interlocutory appeals from orders granting class certification. Prior to the amendment, plaintiffs could pursue interlocutory appeals from orders denying class certification, but defendants had no reciprocal right of appeal.

As amended, section 7A-27(a) states that “[a]ppeal lies of right directly to the Supreme Court” from “any trial court’s decision regarding class action certification under G.S. § 1A-1, Rule 23.” It also states that appeal lies of ...

There are 7 justices on the North Carolina Supreme Court, and 4 are required to constitute a quorum. But what if 5 of the 7 justices have a family history of public service that could prevent them from hearing an appeal?

In Lake v. State Health Plan for Teachers & State Employees, 852 S.E.2d 888 (N.C. 2021), a class of over 220,000 members (or their estates) of the North Carolina Teachers’ and State Employees’ Retirement System spanning over two decades challenged a law requiring them to pay a premium to obtain health insurance coverage. The retirees prevailed at the trial court level ...

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 ...

We’ve commented before in this space about the ongoing debate concerning the relationship between the predominance requirement of Rule 23(b)(3) and “issue certification” under Rule 23(c)(4). Yesterday, the Sixth Circuit weighed in on the subject. See Martin v. Behr Dayton Thermal Prods., No. 17-3663 (6th Cir. July 16, 2018). The case related to a “Superfund site” comprising a “low income area” of some 540 proprieties outside of Dayton, Ohio. Typical of the languid track of most class action actions, the Sixth Circuit addressed the district court’s decision on an ...

Updated 6-11-18: The Supreme Court’s decision earlier today in China Agritech confirms the validity of the observations in the original blog post below.  The Court held that American Pipe tolling does not apply to successive class actions.

In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown Cork & Seal v. Parker, 462 U.S. 345 (1983), the U.S. Supreme Court held that the pendency of a class action will toll limitations periods for absent class members until class certification is denied.

Much recent attention has been focused on China Agritech Inc. v. Resh

The United States Supreme Court, in a 5-3 decision authored by Justice Alito, reversed a Ninth Circuit case concluding that detained aliens have a statutory right to periodic bond hearings during the course of their extended detention.  See Jennings v. Rodriguez,  ____ U.S. ____, No. 15-1204 (U.S. Feb. 27, 2018).  The Court found that the Ninth Circuit’s statutory interpretation in favor of detained noncitizens was “implausible.”  In pedagogical fashion, Justice Alito explained that the Ninth Circuit had turned the doctrine of “constitutional avoidance” on its ...

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 ...

We don’t often get appellate guidance after a federal trial judge remands a case to state court following removal because 28 U.S.C. Sect. 1447(d) generally makes such a ruling unreviewable. But the Class Action Fairness Act (“CAFA”), 28 U.S.C. Sect. 1332(d), permits a court of appeals to accept an appeal of a remand from a class action. The Fourth Circuit exercised this right in Scott v. Cricket Communications, LLC, No. 16-2300 (4th Cir. July 28, 2017), in order to provide some guidance about the quantum and quality of proof required to prove the amount in controversy under ...

Standing to sue, a venerable piece of American jurisprudence for sure, continues to draw attention in recent class action cases, including in the Fourth Circuit. In its second decision this year evaluating last term’s Supreme Court decision, Spokeo v. Robins, 136 S. Ct. 1540 (2016), a unanimous panel of the Fourth Circuit found insufficient “an informational injury” the lead plaintiff advanced under the Fair Credit Reporting Act—the same statute under review in Spokeo.  Dreher v. Experian Information Solutions Inc., 856 F. 3d 337 (4th Cir. May 11, 2017). See also Beck v ...

Earlier this year, we hazarded a guess that the Supreme Court was split 4-4 regarding a Ninth Circuit decision holding that a named plaintiff could achieve appellate review of a decision denying class certification by voluntarily dismissing his individual claims. It turns out, based upon the Supreme Court’s decision in Microsoft Corp. v. Baker [], that the internal debate was not so much over whether the Ninth Circuit erred in allowing the appeal, but whether that error had both statutory and constitutional implications. The Supreme Court had accepted certiorari to review ...

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 ...

Largely following party lines, the House of Representatives on March 9, 2017, passed H.R. 985: Fairness in Class Action Act of 2017, which we highlighted in this space. One central feature of this bill, which we noted, is an appeal as of right of class certification decisions. This provision represents a radical departure from current practice, in which discretionary appeals are infrequently granted to the U.S. Courts of Appeal. A study done several years ago, which looked at seven years of filings, concluded that less than one quarter of such appeals are granted.

As we have ...

Today we continue our analysis of Judge Gorsuch’s class action opinions from the Tenth Circuit in an effort to better understand how he may rule if confirmed for the Supreme Court. Last week, we examined Judge Gorsuch’s decision in Shook v. Board of County Commissioners, and we will take up his remaining class action opinions below.

McClendon v. City of Albuquerque, 630 F.3d 1288 (10th Cir. 2011)

In McClendon v. City of Albuquerque, decided three years after Shook, Judge Gorsuch again demonstrates judicial restraint. In McClendon, prisoners brought a class action against the ...

The nomination of Tenth Circuit Judge Neil M. Gorsuch for the Supreme Court has jurists and reporters forecasting how, if confirmed, he will rule in cases raising “hot” Constitutional issues. The “hot” question for those of us who litigate class actions is how Justice Gorsuch would engage the next landmark class action, especially since he would replace Justice Antonin Scalia on the Court, author of two of the most significant class action opinions in recent years, Comcast Corp. v. Behrend and Wal-Mart Stores v. Dukes.

We will be examining some of Judge Gorsuch’s ...

In this space, we concentrate on class action decisions in the Carolinas, as well as Fourth Circuit and United States Supreme Court precedent. Occasionally, though, we venture beyond these jurisdictions to highlight issues of particular note, including those where courts are divided. We’ve previously reported here how offers of judgment interact with mootness. In Campbell-Ewald Co. v. Gomez, the United States Supreme Court held that an unaccepted settlement offer, even if it offers all relief sought in the case, does not render a case moot when the affected party seeks relief ...

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 ...

Last week, we observed that the Supreme Court appeared to be waiting for a ninth justice to decide in an important case involving appealability of class action certification decisions. A news report today* indicates that the Supreme Court has also pushed out arguments concerning the enforceability of class action waivers. As we recently reported in this space, the Court had agreed in three cases to decide whether the NLRA prohibits employers from requiring non-management employees covered by the NLRA to arbitrate their work-related claims individually. For employers ...

About a year ago, the United States Supreme Court granted Microsoft’s petition to review this question: “Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. Section 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.” Briefing in the case was completed last June, but the case has yet to appear in the calendar of the fourth sitting of the Supreme Court’s term, which began January 9, 2017. Although the reasons for the delay aren’t pellucid, this is an ...

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 ...

Characterizing an unpublished 2007 decision to the contrary as a “thin reed” displaced by later Supreme Court guidance, the Fourth Circuit held that the question of whether an arbitration agreement permits class proceedings is a “gateway” issue for the court, and not a procedural question left to the arbitrator to decide. Del Webb Communities Inc. v. Carlson, No. 15-1385 (4th Cir. March 28, 2016). The case was filed after a builder – facing numerous construction defect claims and an arbitrator’s decision whether to certify those claims as a class proceeding – filed a ...

Can a class action settlement agreement contain a fee-shifting provision that provides for a payment of attorneys’ fees? In a question of first impression, the North Carolina Court of Appeals said yes, subject to a trial court’s approval of the settlement at a fairness hearing.

In the long-running Ehrenhaus v. Baker case, the Plaintiff brought a class action challenging the merger of Wells Fargo and Wachovia. The parties ultimately entered into a settlement agreement that also provided for a payment of attorneys’ fees to Plaintiff’s counsel. The trial court approved the ...

The Fourth Circuit today handed down its second decision in Brown v. Nucor, a split decision from 2009. In the initial decision, over Judge Agee’s dissent, the panel majority had reversed the district court’s denial of class certification. On remand, the district court decided to revisit the certification decision in light of Wal-Mart v. Dukes, and decertified a class consisting of individuals who had not been promoted to supervisory positions. In a 154-page opinion, a split panel again reversed. Judge Gregory again wrote the majority decision, joined by Judge Keenan. Judge ...

In a previous post, we reported on Judge Jolly’s certification of a class of tobacco farmers suing a tobacco marketing cooperative in a Rule 2.1 case. The defendants have since appealed Judge Jolly’s decision to the North Carolina Court of Appeals.

On October 10, the North Carolina Supreme Court took the unusual step of certifying the case for review decision by the Court of Appeals. In fact, the case was not even fully briefed in the Court of Appeals. The case was part of a group of civil cases that the Supreme Court took from the Court of Appeals, as reported by the Raleigh News & ...

In a decision filed today, the North Carolina Court of Appeals held that the trial court did not abuse its discretion in declining to certify a class of Currituck County property owners upset about an easement affecting their coastal property. After observing that denial of class certification affects a substantial right, the Court upheld the trial court’s findings that the Parker’s Landing Property Owners’ Association Inc. (“POA”), the putative class representative, had a conflict with the members of the class and had not shown that “it would be impractical to join ...

Experian recently petitioned the Fourth Circuit to immediately review a district court’s order certifying an 88,000-member, nationwide class of consumers who requested Experian credit reports that listed accounts with the now-defunct Advanta Bank. In this case, Dreher v. Experian Information Solutions Inc., No. 14-325 (4th Cir. July 3, 2014), Experian requested an interlocutory appeal under Rule 23(f), contending that, among other things, the district court’s order that certified a class with members that had suffered no injury and found Rule 23’s predominance ...

Courts have understandably been reluctant to certify a class consisting of “persons who are injured by the defendant” or “individuals to whom the defendant is liable,” i.e., a class definition that depends on the outcome of the case. Such a “fail-safe” class is unfair to defendants:  if defendants win the case, there is no class that is bound by the result because the class consists solely of victors.

A West Virginia judge recently denied a former Dollar General employee her bid for class certification, finding the proposed class was fail-safe and therefore improper ...

In Johnson v. Amazon.com dedc LLC, No. 3:14-cv-01797 (D.S.C. May 2, 2014), seven South Carolina Amazon warehouse workers sued Amazon on behalf of themselves and similarly situated employees alleging unpaid overtime in violation of the Fair Labor Standards Act (“FLSA”) at Amazon’s fulfillment centers in West Columbia and Spartanburg. Plaintiffs allege that they should be compensated for time spent going through “intensive and time-consuming security screening” to enter and exit the fulfillment centers (Compl. ¶35) and for similar security procedures at the start ...

The so-called “Northern Beltway” around Winston-Salem – in part from litigation efforts and in part from lack of funding – has never really gotten off the ground. But property owners whose land and homes are affected by the future project complained that the State’s actions in putting them on the map for the roadway constitute a “taking” under inverse condemnation principles. And they brought a multi-count class action challenging the DOT’s actions. The trial court denied class certification, and a unanimous Court of Appeals affirmed in Beroth Oil Company v. NC ...

Family Dollar, a national discount store retailer based in Charlotte, was sued by a putative class of female store managers alleging gender discrimination in pay in the Western District of North Carolina. In January 2012, Judge Cogburn dismissed the class claims, holding that they weren’t viable under Dukes v. Wal-Mart Stores Inc., 131 S. Ct. 2541 (2011). His ruling was consistent with plaintiffs’ own declaration earlier in the case: they said their claims were “virtually identical” to those in the Wal-Mart case after the Ninth Circuit’s favorable decision (but before ...