Class Actions Brief Blog

Earlier this month, the Supreme Court declined to hear an appeal from the Ninth Circuit’s decision in Lytle v. Nutramax Laboratories Inc. affirming the certification of a class of owners of elderly dogs, alleging that the Cosequin supplement sold for canine joint health and mobility has no such benefit. That decision threatens to turn the circuit split over the standard for expert opinion at class certification into a major rift by permitting plaintiffs in the Ninth Circuit to rely on an expert model for which the expert “has not collected all of the necessary data to perform his ...

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 ...

One of the key issues at class certification is whether plaintiffs have met their burden to establish commonality and predominance: that “questions of law or fact common to class members predominate over any questions affecting only individual members,” as required by Fed. R. Civ. P. 23(b)(3). Plaintiffs often rely on an expert model purporting to show that injury and damages can be determined classwide, so those issues do not defeat predominance.

A recent series of cases, most involving the insurance value of cars totaled in accidents, provide a useful reminder that, when a ...

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 ...

Statutes defining minimum damages per violation, such as many consumer protection laws, often inspire class actions. Plaintiffs argue that certification of such classes is easier because they avoid issues of individualized damages. But in the aggregate, these damages can become immense. As a recent case from the Ninth Circuit shows, however, the Constitution places outer limits on the damages available in these class actions.

Due Process Limits on Aggregate Statutory Damages

Wakefield v. ViSalus Inc., 51 F.4th 1109 (9th Cir. 2022) involved a class action under the Telephone ...

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 ...

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 ...

There is no shortage of consumer class actions these days, but most of these cases are settled or dismissed. If trials are rare, trials of class actions are rarer, if only because of the stakes.   

In 2017, Dish Network tried its luck with a jury in the Middle District of North Carolina regarding claims that it made over 50,000 telephone solicitations to 18,000 residential phone numbers on the Do-Not-Call list in violation of the Telephone Consumer Protection Act. Dish lost and the Court trebled the jury award of $400 per call, resulting in $61,342,800 in total damages with $20.4 million in ...

In a December order, Judge Eagles awarded $20.4 million in attorneys’ fees to Class Counsel in Krakauer v. Dish Network. The motion for fees was unchallenged by Dish Network, and all but a handful of the 18,000 class members approved of the amount.

The facts of Krakauer are familiar to longtime readers of Class Actions Brief. Plaintiffs sued Dish Network under the Telephone Consumer Protection Act (“TCPA”) for allowing their agent to repeatedly call plaintiffs despite their listing on the Do Not Call Registry. As we previously reported, after a trial in January 2017, a jury ...

Those who follow class action law probably will be familiar with In re Trulia (2016), the seminal decision of the Delaware Court of Chancery that put the brakes on disclosure-only settlements.  Before Trulia, these controversial settlements were ubiquitous in deal litigation, in which shareholders of a company file a class action lawsuit seeking to stop the company from engaging in a merger or acquisition on the ground the company failed to disclose sufficient information about the transaction.  Under a typical disclosure-only settlement, the company agrees to supplement its ...

Today we provide you with an update on a previous blog post addressing Dish Network’s plea for a new trial after a jury awarded damages of $20.5 Million in a telemarketing class action lawsuit. After a five-day trial in January, a jury awarded damages by assigning $400.00 to each of the 51,119 distinct phone calls made in violation of the Telephone Consumer Protection Act (the “TCPA”).

Although Dish hoped for a new trial, Judge Eagles issued a text order denying Dish’s Motion for Judgment as a Matter of Law and Motion for a New Trial on May 16, 2017.

After the jury verdict, both ...

Occasionally, we see something outside of the Carolinas that is quirky enough to merit a mention in this space.  Such is the Seventh Circuit’s recent decision in Mulvania v. Sheriff of Rock Island County, No. 16-1711 (7^th Cir. Mar. 9, 2017).  According to Wikipedia, “In 2015 Rock Island (Illinois) was ranked the 32nd ‘Best Small City’ in the country.”  Not influencing those rankings, apparently, was the policy of the Rock Island County Jail, which “requires female detainees to wear either white underwear or no underwear at all.”  What, you ask, might be the “compelling ...

Dish Network has asked the Middle District of North Carolina for a new trial in its telemarketing class action lawsuit after a jury found Dish liable for violations of the Telephone Consumer Protection Act. After a five-day trial ending on January 19th, a jury awarded damages to the class of $20.5 million.

The lawsuit was filed in 2014 by lead plaintiff Thomas Krakauer alleging Satellite Systems Network, an authorized Dish dealer, called him multiple times between 2009 and 2011 despite being listed on the Do Not Call registry. In September 2015, Judge Catherine Eagles certified two ...

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 ...

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 ...

Yesterday, the Supreme Court issued its opinion in Tyson Foods, Inc. v. Bouaphakeo, voting 6 – 2 to uphold a jury verdict in favor of employees in a donning and doffing action. The class of employees, certified under Iowa Wage and Hour law pursuant to Rule 23, and as a collective action under the Fair Labor Standards Act, worked in the kill, cut and retrim departments of a pork processing plant. They were required to use protective gear and complained that they weren’t paid for the time spent to put on and take off the necessary protection equipment. Because Tyson didn’t keep records ...

Since the Supreme Court’s decision in Wal-Mart, courts have been struggling to breathe life into Rule 23(b)(2) when monetary damages are a possibility. Wal-Mart held that back pay constituted the kind of individualized monetary relief that was hardly “incidental” to claims of injunctive relief, upon which (b)(2) classes are essentially founded. In Berry v. LexisNexis Risk and Information Analytics Group Inc., No. 14-2006 (4th Cir. Dec. 4, 2015), the Fourth Circuit grappled with this issue, albeit in the context of a nonmonetary (b)(2) settlement that, by its terms, continued to allow class members to pursue certain claims for monetary relief.

The Supreme Court began its new Term on October 5, and already the Court is slated to hear several cases that could have major impacts on class-action litigation. Among the issues facing the Court are:

▪ whether a defendant can render a putative class action moot by offering the named plaintiff all the relief the plaintiff could recover individually if the plaintiff were to prevail, even if the plaintiff rejects the offer (Campbell-Ewald Company v. Gomez);

▪ whether a plaintiff has standing to bring a claim (including a class claim) where the plaintiff’s statutory rights were ...

We have reported recently in this space on the certification of state wage and hour claims. Judge Gergel recently continued with this trend, certifying a class of Jamaican workers at the Kiawah Island Golf Resort who contend they weren’t paid enough by the Resort. See Moodie v. Kiawah Island Inn Co. LLC, No. 2:15-cv-1097 (D.S.C. Aug. 24, 2015). Defendants argued that the differences in class members were such that the court would have to certify six classes, but the Court rejected that notion, saying the argument stemmed from a “novel proposition that Plaintiffs must propose [a ...

The North Carolina Business Court today rebuffed an attempt by “self-pay” patients receiving emergency treatment to challenge the hospital’s charges on a class-wide basis. In Hefner et al. v. Mission Hospital Inc., et al., No. 12-CVS-3088 (N.C. Business Court Dec. 8, 2014), Judge Gale found that there “is a panoply of potential issues factoring into the ultimate questions of reasonableness [of patient charges] because every patient treated at Mission received different services and was billed for different amounts.” A key consideration in deciding whether to ...

A recurrent question under Rule 23 is whether and when individual issues pertaining to damages can engulf otherwise common questions and make class litigation unwieldy. The dilemma is clear: On the one hand, doesn’t it make sense to try the common liability issue once rather than over and over again? On the other hand, trying a bunch of individual damages issues, that differ from plaintiff to plaintiff, doesn’t sound either like class litigation or a model of efficiency. The United States Supreme Court, in Comcast Corp. v. Behrend, has emphasized that lack of commonality in ...

Lecroy v. CSX Transportation, Inc., No. 2:14-cv-02128 (D.S.C. June 2, 2014) arises from a CSX train derailment at the underpass of Cypress Gardens Road in Berkley County, South Carolina, which caused a bridge to collapse. A purported class of Berkley County citizens filed a negligence and strict liability action against CSX, seeking damages for the “cost for transportation,” including costs associated with a 22-mile detour route around the collapsed bridge. The lawsuit alleges a strict liability claim under South Carolina’s Anti-Blocking Statute, S.C. Code § 57-7-240

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 ...