Michael R. Pennington

Mike Pennington has extensive experience in defending high stakes class actions and mass actions of all kinds, including class and mass actions involving mortgage servicing, insurance sales and claims practices, variable annuities, alleged product defects, construction defects, forced-placed insurance, due process and civil rights claims, and statutory damage class actions under the federal statutes such as the Fair Debt Collection Practices Act (FDCPA), the Real Estate Settlement Procedures Act (RESPA), the Telephone Consumer Protection Act (TCPA), and the Fair Credit Reporting Act (FCRA). In addition to chairing Bradley’s Class Action Team, Mike is also chair of DRI’s Class Action Task Force and DRI’s Class Action Specialized Litigation Group. View articles by Mike

Firm/Organization: Bradley Arant Boult Cummings LLP

Blogs: Declassified, Financial Services Perspectives

Latest Articles

Declassified

Silence Isn’t Always Golden—Sometimes It Lands You in Class Arbitration

By Stephen Parsley & Michael R. Pennington

August 8, 2019

As this blog has previously discussed, the availability of class arbitration has been significantly restricted after a series of U.S. Supreme Court decisions. However, we have also noted that express preclusion of class arbitration remains advisable for companies because they eliminate the ability of state courts and arbitrators to read permission for class arbitration into an arbitration clause that was never intended to allow class arbitration. A recent decision in the Supreme Court of…

Declassified

“Any” Doesn’t Mean “All”: In Home Depot, SCOTUS Says “Any Defendant” Doesn’t Include Third-party Defendants Facing Class Claims

By Dylan C. Black, Zachary A. Madonia, Michael R. Pennington & Nicholas A. Danella

June 3, 2019

To the surprise of many observers (including us), the Supreme Court held last week in Home Depot USA Inc. v. George Jackson that a third-party defendant could not remove class action claims – under either the general removal statute, 28 U.S.C. § 1441(a), or the Class Action Fairness Act (CAFA), 28 U.S.C. § 1453(b). Setting aside § 1441 (for the moment), we will remind the reader at the outset that CAFA broadly states…

Declassified

“Two Wrongs Don’t Make a Right, But a Few More Can Make a Unicorn”

By Michael R. Pennington & Scott Burnett Smith

May 9, 2019

Class actions typically involve a proposed class of plaintiffs seeking recovery from the same defendant on similar grounds. But that is not the only animal in the class action corral. Rule 23 makes this clear in its very first sentence: One or more members of a class may sue or be sued as representative parties on behalf of all members….” But this particular class action animal is more often imagined than seen. Indeed, as the…

Declassified

The Eleventh Circuit Finds Class Rep Has Standing to Settle a FACTA Class Action

By J. Thomas Richie, John E. Goodman & Michael R. Pennington

April 29, 2019

Bucking a recent trend and departing from both the Second Circuit’s Katz decision and the Third Circuit’s Kamal decision, the Eleventh Circuit found that a plaintiff had standing to settle a FACTA claim on behalf of a class. This decision—Muransky v. Godiva Chocolatier, Inc.—signals the continuing debate about what Spokeo means for federal statutory damages class actions. As is now familiar, FACTA (the federal “Fair and Accurate Credit Transactions Act”) prohibits merchants from printing…

Declassified

Lamps Plus v. Varela: It’s Lights Out for Class Arbitration under Ambiguous Arb Agreements

By Dylan C. Black, Michael R. Pennington, John E. Goodman & J. Thomas Richie

April 26, 2019

We have written before about the utility of class waivers in arbitration agreements as a defense to classwide arbitration. As we previously discussed, the U.S. Supreme Court decided in Stolt-Nielson S.A. v. AnimalFeeds Int’l Corp. that arbitration agreements that were silent on the question of class arbitration could not support the arbitration of class claims. Now, as we predicted, the court has taken the rule of Stolt-Nielson a step further, holding in Lamps Plus, …

Declassified

Say What? Ninth Circuit Says Affirmative Defenses Can’t Stop Class Certification Unless Defendant Proves the Merits of the Defense as to Every Single Class Member

By Michael R. Pennington, Sarah Sutton Osborne & Scott Burnett Smith

April 1, 2019

Just when you thought litigating Telephone Consumer Protection Act (TCPA) class actions was as unsafe as it could get for defendants, the Ninth Circuit said, “Not so fast.” In McKesson v. True Health, two chiropractic practices sought to represent a class of plaintiffs who allegedly received unsolicited faxes containing advertisements in violation of the TCPA. The district court denied class certification under Fed. R. Civ. P. 23(b)(3) on the grounds that consent was the…

Declassified

Another Punt: The Supreme Court Denies Certiorari in the Zappos Case

By J. Thomas Richie, Michael R. Pennington & Scott Burnett Smith

March 27, 2019

We wrote recently about how the certiorari petition in Zappos.com, Inc. v. Stevens was a possible vehicle to put the question of standing in data breach cases back before the Supreme Court. Alas, the Court denied the certiorari petition on March 25. Combined with the Supreme Court’s remand in Frank v. Gaos, those wishing for a landmark standing decision must wait a little longer. Given the small number of certiorari petitions granted, the odds…

Declassified

Frank v. Gaos: Remand, but Little Guidance.

By J. Thomas Richie, Michael R. Pennington & John E. Goodman

March 20, 2019

Today, the Supreme Court sent Frank v. Gaos back to the Ninth Circuit to address the issue of standing under Spokeo. Frank involved allegations of privacy violations. Plaintiffs brought class action claims against Google for alleged violations of the Stored Communications Act. The complaints alleged that when an Internet user conducted a Google search and clicked on a hyperlink to open one of the webpages listed on the search results page, Google transmitted information including…

Declassified

TIME STOPS FOR NO ONE: The Supreme Court Addresses Timeliness Issues in Two Separate Class Cases

By Michael R. Pennington & Zachary A. Madonia

February 28, 2019

The U.S. Supreme Court suddenly seems to have a little time on its hands. Or at least on its mind. In two different class action cases on its docket this week, the question at hand was timeliness. First, in Nutraceutical Corp. v. Lambert, the Supreme Court ruled that Rule 23(f)’s 14-day time limit for filing a Rule 23(f) petition for permission to appeal from an order granting or denying class certification is not flexible…

Declassified

Standing in Data Breach Cases Likely Heading Back to the Supreme Court

By J. Thomas Richie, Michael R. Pennington & Scott Burnett Smith

December 12, 2018

Data breach plaintiffs often have a very difficult time stating a concrete injury, and courts have wrestled with whether these plaintiffs can file suit in federal court. We have been watching this issue and writing about it frequently. The issue is whether plaintiffs have suffered an “injury in fact” that gives them Article III standing. The Supreme Court’s 2016 decision in Spokeo v. Robins took a narrow view of Article III standing where the…

Michael R. Pennington

Silence Isn’t Always Golden—Sometimes It Lands You in Class Arbitration

“Any” Doesn’t Mean “All”: In Home Depot, SCOTUS Says “Any Defendant” Doesn’t Include Third-party Defendants Facing Class Claims

“Two Wrongs Don’t Make a Right, But a Few More Can Make a Unicorn”

The Eleventh Circuit Finds Class Rep Has Standing to Settle a FACTA Class Action

Lamps Plus v. Varela: It’s Lights Out for Class Arbitration under Ambiguous Arb Agreements

Say What? Ninth Circuit Says Affirmative Defenses Can’t Stop Class Certification Unless Defendant Proves the Merits of the Defense as to Every Single Class Member

Another Punt: The Supreme Court Denies Certiorari in the Zappos Case

Frank v. Gaos: Remand, but Little Guidance.

TIME STOPS FOR NO ONE: The Supreme Court Addresses Timeliness Issues in Two Separate Class Cases

Standing in Data Breach Cases Likely Heading Back to the Supreme Court

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