Does class certification strip a defendant of its right to compel arbitration against unnamed class members? The Third Circuit recently held that it does not, unless the party seeking arbitration has waived that right by expressly or impliedly demonstrating an intentional relinquishment or abandonment of it. Salvatora v. XTO Energy, Inc., ___ F.4th ___, *3 (3d Cir. 2026). What, then, constitutes such a demonstration?
Continue Reading Preserving the Right to Arbitrate Against Unnamed Class Members
Ninth Circuit Affirms Dismissal of Supplement Marketing Claims as Impliedly Preempted
In a win for implied preemption, the Ninth Circuit recently affirmed dismissal of supplement marketing claims under California’s Unfair Competition Law (UCL). The case, Bubak v. Golo, LLC, No. 24-492 (9th Cir. Oct. 9, 2025), held that the plaintiff’s UCL claim was impliedly preempted because it depended entirely on alleged violations of the federal Food, Drug, and Cosmetic Act (FDCA), which may be enforced only by the federal government.
Continue Reading Ninth Circuit Affirms Dismissal of Supplement Marketing Claims as Impliedly PreemptedPost-Cantero, First Circuit Sets Demanding National Bank Act Preemption Test
Lenders often require borrowers to keep money in a mortgage escrow account, and those funds are used to pay taxes, mortgage insurance, and other costs throughout the year. At least 12 states require lenders to pay the borrower interest on the money held in these escrow accounts. And for more than a decade, certain national banks have challenged the applicability of those state laws to them, arguing the laws are preempted by the National Bank Act because they would significantly interfere with the exercise of a federally granted banking power.[1]
These cases have resulted in a trip to the Supreme Court. In Cantero v. Bank of America, the Supreme Court explained that the test for preemption under the National Bank Act requires courts to “make a practical assessment of the nature and degree of the interference caused by a state law,” and courts should do so by engaging in a “nuanced comparative analysis” that compares the interference caused by previous state laws that were challenged as preempted before the Supreme Court to the law at issue.[2] 602 U.S. 205, 219–21 (2024).
Continue Reading Post-Cantero, First Circuit Sets Demanding National Bank Act Preemption TestEn Banc Sixth Circuit Criticizes Certification of Multi-State Class
In Speerly v. General Motors, LLC, — F.4th —-, 2025 WL 1775640 (6th Cir. June 27, 2025) (en banc), the Sixth Circuit made it harder for plaintiffs to certify a class with multiple state-law causes of action and multiple subclasses when it vacated a district court order certifying multiple state-specific subclasses of automotive purchasers.
Continue Reading En Banc Sixth Circuit Criticizes Certification of Multi-State ClassSixth Circuit Revives Overdraft Fee Lawsuit Based on Ambiguous Contractual Terms
On June 20, 2025, the U.S. Court of Appeals for the Sixth Circuit resurrected a lawsuit against a bank involving “Authorized Positive, Settled Negative” (“APSN”) overdraft fees and nonsufficient funds (“NSF”) fees. Gardner v. Flagstar Bank, No. 24-1436, 2025 WL 1721191 (6th Cir. June 20, 2025). The plaintiff argued that these fees violated the operative Terms & Conditions. The district court had granted summary judgment to the defendant because the plaintiff’s deposition testimony indicated that she did not read the T&Cs and thus could not advance her own interpretation of the contract.
Continue Reading Sixth Circuit Revives Overdraft Fee Lawsuit Based on Ambiguous Contractual TermsSupreme Court to Decide If Presence of Uninjured Class Members Defeats Class Certification
On January 24, the Supreme Court granted certiorari in Laboratory Corporation of America Holdings v. Davis to address a long-unsettled issue central to class-action litigation: “Whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.”
Continue Reading Supreme Court to Decide If Presence of Uninjured Class Members Defeats Class CertificationSecond Circuit Affirms Dismissal of Consumer Class Action Challenging Nutrition Shakes and Drinks As Misleading
In Bates v. Abbott Laboratories, the Second Circuit affirmed dismissal of a consumer class action challenging the labeling of Ensure shakes and drinks as materially misleading. 2025 WL 65668, at *1–2 (2d Cir. Jan. 10, 2025).
Continue Reading Second Circuit Affirms Dismissal of Consumer Class Action Challenging Nutrition Shakes and Drinks As MisleadingUnique Injuries No Bar to Class Certification Pursuing Economic Damages
Despite a lead plaintiff with unique injuries, the Northern District of Indiana recently certified a class seeking economic damages under Indiana’s consumer protection statute in a case challenging contaminated hand sanitizer manufactured by 4e Brands North America, LLC. Callantine v. 4e Brands North America, LLC, 2024 WL 4903361 (N.D. Ind. Nov. 27, 2024).
In June 2020, Defendant 4e voluntarily recalled all of its hand sanitizer lots due to the presence of methanol. The plaintiff filed a class action lawsuit two months later, alleging that she had suffered both economic and personal injuries, and that she was entitled to statutory damages. The individual class members’ damages, however, would be “largely limited to statutory damages.”
Continue Reading Unique Injuries No Bar to Class Certification Pursuing Economic DamagesNinth Circuit Addresses National Bank Act Preemption after Supreme Court Decision
In the first court decision addressing National Bank Act preemption since the Supreme Court clarified the standard in Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), the Ninth Circuit reaffirmed that the Act does not preempt a California state law requiring banks to pay interest on funds held in their customers’ escrow accounts. See Kivett v. Flagstar Bank, FSB, 2024 WL 3901188 (9th Cir. Aug. 22, 2024).
Continue Reading Ninth Circuit Addresses National Bank Act Preemption after Supreme Court DecisionCalifornia Supreme Court Decision Highlights Potential Class Certification Defenses for Manufacturers of Prescription Drugs & Medical Devices
A recent decision by the California Supreme Court underscores why courts should be hesitant to grant class certification in cases in which the learned intermediary doctrine applies.
Continue Reading California Supreme Court Decision Highlights Potential Class Certification Defenses for Manufacturers of Prescription Drugs & Medical Devices