Whether a class representative has actually been injured can determine the suitability of class certification, as a class with an uninjured representative will not be certified. But as illustrated by the First Circuit in Nightingale v. National Grid USA Service Company, — F.4th —-, 2024 WL 3337766 (1st Cir. July 9, 2024), when class certification is denied based on an erroneous interpretation of a class representative’s injury, that denial will not stand.Continue Reading First Circuit Reverses Denial of Class Certification Based on Erroneous Injury Ruling
A Closer Look: The Importance of Expert Testimony for “Reasonable Consumer” Claims
Companies in the food, beverage, pharmaceutical, and other industries continue to face litigation regarding their products’ labeling, including as to whether certain representations on labels are deceptive or misleading. In the Second Circuit and elsewhere, these lawsuits tend to turn on what an objective “reasonable consumer” would understand the representation at issue to mean, and whether that “reasonable consumer” would likely be misled under the circumstances. In Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir, May 2, 2024), the Second Circuit confirmed how important expert testimony can be to that question, and how efforts to exclude expert testimony can ultimately be the difference between winning and losing. Continue Reading A Closer Look: The Importance of Expert Testimony for “Reasonable Consumer” Claims
Eleventh Circuit Vacates Settlement Approval Because Plaintiffs Lacked Standing to Seek Injunctive Relief
This blog has covered recent decisions from the Eleventh Circuit that have taken a hard look at class action settlements. For example, we previously discussed the Eleventh Circuit’s per se prohibition on the inclusion of incentive awards for class action representatives in class action settlements. See Johnson v. NPAS Sols., LLC, 975 F.3d 1244 (11th Cir. 2020) (vacating settlement in part because it included incentive awards). Just recently, the Eleventh Circuit vacated the approval of another class action settlement because it “included relief that [the district court] had no jurisdiction to award.” Smith v. Miorelli, 93 F.4th 1206, 1209 (11th Cir. 2024).Continue Reading Eleventh Circuit Vacates Settlement Approval Because Plaintiffs Lacked Standing to Seek Injunctive Relief
“Greenwashing” Claims Certified For Class Treatment
This blog recently covered a decision from the Northern District of California denying a defendant’s motion for summary judgment on a plaintiff’s “greenwashing” claims, which asserted that defendant’s “non-toxic” and “Earth-friendly” labels were false and misleading. See Bush v. Rust-Oleum Corp., 2024 WL 308263 (N.D. Cal. Jan. 26, 2024). Now, the same court has granted class certification on those claims, demonstrating that not only can these claims be difficult to defeat before trial, but it can also be difficult to prevent certification on those claims as well.Continue Reading “Greenwashing” Claims Certified For Class Treatment
N.D. Cal. Judge Allows “Greenwashing” Claims to Proceed to Trial
As companies have increased efforts to represent their products as environmentally friendly, “greenwashing” lawsuits—which target companies (often under consumer protection statutes) based on allegations of false or misleading statements regarding the environmental impact of their products or practices—have also increased. A recent order from the district court in the Northern District of California illustrates the difficulty in attempting to defeat these claims before trial if a strong evidentiary record has not been developed.Continue Reading N.D. Cal. Judge Allows “Greenwashing” Claims to Proceed to Trial
Second Circuit Holds that Rule 23(e) Prohibits Presumption of Fairness of Arm’s-Length Negotiated Class Settlements
In Moses v. New York Times Co., 2023 WL 5281138 (2d Cir. Aug. 17, 2023), the Second Circuit vacated and remanded the approval of a class action settlement because the district court applied the wrong legal standard in determining that the settlement was fair. But in doing so, the court reiterated that incentive awards for class action representatives are permissible in the Second Circuit.Continue Reading Second Circuit Holds that Rule 23(e) Prohibits Presumption of Fairness of Arm’s-Length Negotiated Class Settlements
Eleventh Circuit Updates Its Article III Standing Analysis
This blog previously covered the Eleventh Circuit’s July 2022 decision in Drazen v. Pinto, which held that all class members must have Article III standing in order to receive individual damages in a class settlement. 41 F.4th 1354 (11th Cir. 2022). Because the law in the Eleventh Circuit at
Continue Reading Eleventh Circuit Updates Its Article III Standing AnalysisD.C. Circuit Confirms That Issue Classes Must Satisfy the Requirements of Rule 23(a) and (b)
Rule 23(c)(4) states that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” But do classes under Rule 23(c)(4), otherwise known as “issue classes,” also need to satisfy the requirements of Rule 23(a) and (b)? In Harris v. Medical Transportation Management, Inc., 2023 WL 4567258 (D.C. Cir. July 18, 2023), the D.C. Circuit confirmed that the answer is “yes.” Continue Reading D.C. Circuit Confirms That Issue Classes Must Satisfy the Requirements of Rule 23(a) and (b)
Supreme Court Denies Cert on Incentive Awards
We previously covered the Eleventh Circuit’s decision in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020), in which the Eleventh Circuit relied on two Supreme Court decisions from the 1880s to prohibit courts from awarding incentive or service awards to class representatives in class settlements. Id. at 1255 (citing Trustees v. Greenough, 105 U.S. 527 (1881), and Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885). Although the Eleventh Circuit was the first federal appellate court to bar these awards in all circumstances, a recent Second Circuit decision agreed that these awards are “likely impermissible” under Supreme Court precedent, while observing that it would take the entire Second Circuit to overturn prior precedent upholding incentive awards. See Fikes Wholesale, Inc. v. HSBC Bank USA, N.A., 62 F.4th 704, 721 (2nd Cir. 2023). The Department of Justice has likewise implied that it agrees with the Eleventh Circuit’s position, relying on the Johnson decision in an effort to block incentive awards from a class settlement in a District of Columbia court. Continue Reading Supreme Court Denies Cert on Incentive Awards
Eleventh Circuit to Reconsider Standing Decisions
The Eleventh Circuit is poised to reconsider recent standing decisions favorable for defendants seeking to invoke Article III’s standing requirements to defeat class certification.
At issue is the Eleventh Circuit’s July 2022 decision in Drazen v. Pinto, holding that (i) all class members must have Article III standing in order to receive individual damages (whether through a settlement or otherwise), and (ii) the standing determination is decided under Eleventh Circuit law, even where certain class members do not reside within the Eleventh Circuit’s geographic boundaries and may have standing under other circuit precedent. 41 F.4th 1354, 1360–61 (11th Cir. 2022). The dispute in Drazen arose in the context of the Telephone Consumer Protection Act (“TCPA”), and addressed both unwanted phone calls and text messages. While a settlement in Drazen was pending, the Eleventh Circuit held in Salcedo v. Hanna, 936 F.3d 1162, 1168 (11th Cir. 2019), that, contrary to precedent in other circuits, a single unwanted text message was not sufficient to give rise to Article III standing under the TCPA. Because the panel was bound by Salcedo, and because the proposed class definition in the Drazen settlement included individuals whose sole harm was an unwanted text message, those individuals did not have standing. The panel therefore vacated the district court’s approval of the settlement.Continue Reading Eleventh Circuit to Reconsider Standing Decisions