Consumer Class Defense Counsel

Note: We’d like to thank co-author Mai-Ahn Tran, summer associate, for her contributions to this post. Last month, the Ninth Circuit struck down a district court’s order approving a class settlement and awarding nearly $7 million in attorneys’ fees to class counsel in a consumer class action challenging the defendant’s labeling of cooking oil products. The Court of Appeals highlighted a “squadron of red flags” in the settlement agreement, including the inordinate provision for attorneys’…
Defendants have historically faced an uphill battle to defeat class certification in securities-fraud class actions. The United States Supreme Court’s recent decision in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System provides clarification regarding the scope of evidence a court must consider in ruling on such motions, although it does not significantly alter the landscape of class certification disputes in securities-fraud cases.  In Goldman, the plaintiffs alleged that Goldman maintained an artificially inflated stock…
On Friday morning, the Supreme Court issued its eagerly awaited opinion in TransUnion LLC v. Ramirez (No. 20-297). Justice Kavanaugh delivered the opinion of the Court, with which four Justices concurred; Justices Thomas, Breyer, Sotomayor, and Kagan dissented. As we previously reported here, the Supreme Court granted a writ of certiorari in Ramirez to review the question of “[w]hether either Article III or Rule 23 permits a damages class action where the vast majority…
In 2008, Illinois became the first state to enact a Biometric Information Privacy Act (BIPA). BIPA regulates “the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information” (i.e., fingerprints, iris scans, voiceprints). It prohibits private parties from collecting biometric identifiers and generating individual “profile” information derived from biometric identifiers without first notifying the individuals whose information is being collected, obtaining their consent, and making specific disclosures to them. The statute also…
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…