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The Latest from the Class Action Battlefront

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

By Stephen Parsley & Michael R. Pennington on 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…

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“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 on 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…

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SCOTUS Blows Down Apple’s House Made of Illinois Brick

By Nicholas A. Danella & Zachary A. Madonia on May 21, 2019

In a 5-4 split decision, the U.S. Supreme Court appears to have reworked a longstanding precedent that has been a foundation of antitrust litigation for more than 40 years—the “direct purchaser” rule of Illinois Brick, which generally forecloses “downstream” purchasers from suing for alleged violations of the Sherman Act. Apple Inc. v. Pepper addressed a “market” that almost certainly is familiar to the reader: Apple’s iPhone “App Store.” The Supreme Court allowed a putative class…

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

By Michael R. Pennington & Scott Burnett Smith on 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…

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“Sorry, Wrong Number”: Northern District of California Denies Certification in TCPA Class Action

By John E. Goodman on May 6, 2019

As we have noted before, whether a claimant under the Telephone Consumer Protection Act (TCPA) gave “prior express consent” to receiving communications from the defendant is frequently a critical issue (and often the only issue standing between the defendant and massive class action liability). A recent decision from the Northern District of California in a “wrong number” class action, Revitch v. Citibank, N.A., is illustrative of the consent battleground. The TCPA prohibits, inter…

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Ninth Circuit to Decide Transgender Inmate’s Right to Sex-Reassignment Surgery; First and Fifth Circuits Have Rejected Similar Constitutional Claims

By Michael Bentley on April 30, 2019

Prison healthcare litigation has been on the rise throughout the country. Private healthcare providers for state prison systems are often caught up in class actions or complex injunctive-relief litigation targeting both the provider and the state for alleged shortcomings in the types and adequacy of care provided, matters which are often a function of state funding and policy decisions. In recent years, an increasing number of cases have raised this question: Does the Eighth Amendment…

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

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

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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 on 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, …

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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 on 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…

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Think before Hitting “Send”: Supreme Court Upholds Liability under Securities Laws for Forwarding Someone Else’s False Statement

By Jeffrey R. Blackwood & Dylan C. Black on March 28, 2019

Be careful before you forward that email. That’s the lesson from the recent Supreme Court decision in Lorenzo v. Securities and Exchange Commission, in which the court held that that the director of investment banking for a broker-dealer was liable for participating in a scheme to defraud investors when he forwarded two emails prepared by his boss. The contents of the emails reported that the investment target had “confirmed assets” of $10 million, a statement Mr.…

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The Latest from the Class Action Battlefront

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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

SCOTUS Blows Down Apple’s House Made of Illinois Brick

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

“Sorry, Wrong Number”: Northern District of California Denies Certification in TCPA Class Action

Ninth Circuit to Decide Transgender Inmate’s Right to Sex-Reassignment Surgery; First and Fifth Circuits Have Rejected Similar Constitutional Claims

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

Think before Hitting “Send”: Supreme Court Upholds Liability under Securities Laws for Forwarding Someone Else’s False Statement

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