Consumer Class Defense Counsel

At Class Certification Stage, Non-Expert Evidence Must Be Reliable, but Not Necessarily Admissible: As the Supreme Court explained 40 years ago in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982), district courts must undertake a “rigorous analysis” to ensure that the requirements for class certification under Rule 23 have been satisfied. This analysis may require the court to “probe behind the pleadings,” while at other times, “the issues are plain enough…
On March 1, 2021, the Consumer Product Safety Commission (CPSC) signaled its intent to increase enforcement of its product safety regimen by seeking to more than double its current $135 million budget via a public letter from Robert Adler, acting chairman of the CPSC, to Rosa DeLauro, chairwoman of the United States House of Representatives Committee on Appropriations.1 While the result of this funding request is yet to be determined, a separate $50 million appropriation and…
While the United States Supreme Court has made clear that class action waivers in arbitration clauses can be enforced, plaintiffs’ counsel continue to find creative ways to challenge these types of arbitration agreements. Last month, in a 2-1 decision, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit reversed a district court victory for Branch Banking & Trust (the “Bank”) and ruled that the Bank could not compel arbitration of its…
Last week, the United States Court of Appeals for the Ninth Circuit issued a decision vacating a district court order certifying three plaintiff classes pursuing damages for alleged price-fixing conspiracies in the tuna industry. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, Case No. 19-56514, — F.3d –, 2021 WL 1257845 (9th Cir. Apr. 6, 2021). Although the decision addresses issues regarding antitrust injury and the use of econometric models to prove antitrust…
The Supreme Court on Thursday issued its long-awaited ruling on what constitutes an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA), in Facebook Inc. v. Duguid, Case No. 19-511. The TCPA prohibits certain telephone calls or texts sent with the use of an ATDS, which is defined as “equipment which has the capacity — (A) to store or produce telephone numbers to be called, using a random or sequential number…
When consumers make grocery store runs to pick up vanilla ice cream or vanilla almond milk, are they concerned with whether the product is derived solely or primarily from vanilla beans versus being simply vanilla flavored? This is the question that multiple courts have had to decide in response to a continuing stream of cases alleging that various food and beverage companies have mislabeled their vanilla products. So far, decisions show that a plain vanilla…
A recent decision from the Northern District of California — Lopez, et al. v. Apple — highlights the continued impact of the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins in shaping Article III standing jurisprudence for consumer cases. Consistent with our prior reporting on Ninth Circuit constitutional standing issues, courts in the Ninth Circuit remain vigilant, even at the pleading stage, in rejecting cases where the plaintiff’s theory of harm, as alleged,…
Rule 23(a) numerosity is one of the less frequently litigated class certification requirements, which makes the U.S. Court of Appeals for the Seventh Circuit’s recent decision in Anderson v. Weinert Enterprises, Inc. notable. There, the Seventh Circuit held that the district court did not abuse its discretion when it considered factors relating to the practicability of joinder, based on the evidence before it, when denying certification of a proposed class consisting of thirty-seven members. Plaintiff…
Last Thursday, the Seventh Circuit issued its fourth opinion in two years addressing Article III standing in the context of Illinois’s Biometric Information Privacy Act (BIPA). The court handed the plaintiff in Thornley v. Clearview AI, Inc. a “win,” concluding she lacked Article III standing to pursue her BIPA claims in federal court and, therefore, affirming the district court’s decision to grant her motion to remand the case back to state court. Given the recurring…
Today, the United States Supreme Court granted a writ of certiorari in Trans Union LLC v. Ramirez. At issue is an eight-figure judgment obtained by a certified class of consumers for statutory and punitive damages based on violations of the Fair Credit Reporting Act (“FCRA”), which was upheld by a divided Ninth Circuit panel. The Supreme Court’s order accepts the following Question Presented for review: “Whether either Article III or Rule 23 permits a…