Consumer Class Defense Counsel

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The Eleventh Circuit, sitting en banc, has vacated a pre-Spokeo “beat the clock” class action settlement for lack of standing post-Spokeo.  This decision is reflective of a developing trend in the Eleventh Circuit to undertake exacting reviews of class action settlements.  The decision was issued less than six weeks after an Eleventh Circuit panel vacated a district court order in another case for failure to sufficiently explain the grounds for approving a class settlement in…
Article III standing is a threshold jurisdictional requirement in all cases, including putative class actions. It is well settled that a named plaintiff must have constitutional standing throughout a case for subject matter jurisdiction to exist. The federal circuit courts, however, are split on whether unnamed class members must have standing at the class certification stage—or whether the standing requirement is satisfied so long as the class representative has standing. The Second, Eighth, and D.C.…
The California Supreme Court recently held that claims brought by the government for civil penalties under California’s unfair competition law (B&PC § 17200, et seq.) and false advertising law (B&PC § 17500, et seq.) are to be tried by a court, not by a jury.  Under the California Constitution, litigants have the right to a jury trial in cases involving legal claims, but this right does not apply where the claims are solely equitable in…
While not authorized by Rule 23, incentive awards to class representatives are a common feature of class action settlements. Nevertheless, a divided Eleventh Circuit panel ruled last Thursday that such payments are strictly prohibited by “on-point Supreme Court precedent” from the 1880s. The decision in Johnson v. NPAS Solutions, LLC, No. 18-12344, 2020 WL 5553312 (11th Cir. Sept. 17, 2020), reversed and vacated a district court order that approved a settlement after the Eleventh Circuit concluded…
Cannabis companies are increasingly the targets of putative class action lawsuits brought under the Telephone Consumer Protection Act (TCPA). Dozens of lawsuits alleging TCPA violations have been filed against cannabis industry participants, including marketers, and lawsuits continue to be filed at a steady rate.  August alone saw a TCPA lawsuit filed against an industry giant, as well as a notable federal decision regarding a cannabis marketer’s request to stay a TCPA lawsuit against it. On…
The ongoing COVID-19 pandemic has brought with it a surge of class action lawsuits targeting fitness clubs, entertainment venues, educational institutions, manufacturers of consumer products, and insurance companies, among others.  When we last reported on this trend in late July, over 500 new putative class actions related to COVID-19 had been filed.  New filings have continued to mount, though relatively few of these cases have concerned instances of harm due to infection. On July 27,…
Recently, the Consumer Financial Protection Bureau (CFPB) issued a compliance aid that addresses frequently asked questions related to the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) and the COVID-19 pandemic. The compliance aid provides further interpretation of a policy statement the CFPB issued in April and is intended to assist creditors in understanding their reporting obligations in the current environment.  As a practical matter, a compliance aid is not a “rule” under the…
The Seventh Circuit held last Thursday that individuals who object to a class action settlement voluntarily assume a limited fiduciary duty to other class members, which they can breach by settling their classwide objections for personal profit. The decision in Frank v. Target Corp., No. 19-3095, 2020 WL 4519053 (7th Cir. Aug. 6, 2020), seeks to put an end to what the court called “objector blackmail.” All attorneys should take heed of this decision when…
As businesses around the country slowly start to reopen after COVID-19 closures caused by state and local government-mandated operation restrictions, plaintiffs have flocked to the courts filing class actions against membership clubs that did not fully refund fees charged while access to facilities and amenities were limited or unavailable.  The most frequent targets of these suits are fitness, health, and social clubs who face consumer class claims for breach of contract, business torts and violations…
The Class Action Fairness Act of 2005 (“CAFA”) greatly expanded federal subject matter jurisdiction over class action lawsuits. By providing for diversity jurisdiction where the parties are not completely diverse (i.e., where some defendants have the same citizenship as some plaintiffs), CAFA permits more class actions to be filed in (and removed to) federal court than would be allowed otherwise. Yet CAFA is not an all-powerful jurisdictional cure all, as the Ninth Circuit acknowledged this…