Cy pres (or “next best”) provisions are a relatively common provision of class action settlements. The cy pres doctrine permits funds from a cash settlement in a class action to be sent to a third party, usually a charitable organization with a mission related to the claims in the lawsuit, rather than to class members. Cy pres provisions are typically used for residual funds in a settlement pool or, less commonly, when class members are hard to identify. But cy pres provisions have come under increasing scrutiny, as evidenced by an Ohio federal court’s recent rejection of a class action settlement based solely on its cy pres provision. Hawes v. Macy’s Inc., No. 1:17-CV-754, 2023 WL 8811499 (S.D. Ohio Dec. 20, 2023). Continue Reading Federal Court Rejects Class Action Settlement Over Cy Pres Provision
Eleventh Circuit Holds Willful Violations of the Fair Credit Reporting Act Do Not Require Proof of Actual Damages
The Eleventh Circuit resurrected a putative class action by holding that consumers need not prove actual damages in order to recover statutory damages based on alleged willful violations of the Fair Credit Reporting Act (“FCRA”). See Santos v. Healthcare Revenue Recovery Grp., LLC., –F4th–, 2023 WL 7289662 (11th Cir. Nov. 6, 2023) (per curium).Continue Reading Eleventh Circuit Holds Willful Violations of the Fair Credit Reporting Act Do Not Require Proof of Actual Damages
Court Issues Mixed Ruling in Benzene Hair Product Case
A court in the Northern District of Illinois recently issued a mixed ruling dismissing in part a putative class action claiming that a company violated the Illinois Consumer Fraud Act (“ICFA”) by allegedly failing to disclose that its dry shampoo products potentially contained the carcinogen benzene. Although the court allowed the case to move forward on the ICFA claim to the extent that the claims were based on a theory that the products were adulterated, the court found the ICFA claim preempted by the FDA to the extent it relied on a theory that benzene should have been included on the ingredients list.Continue Reading Court Issues Mixed Ruling in Benzene Hair Product Case
Ninth Circuit Reverses Course on Arbitration
The Ninth Circuit recently held in Chamber of Commerce v. Bonta that the Federal Arbitration Act preempts a California law that criminalizes employer conduct that requires employees to consent to arbitrate claims arising under the California Fair Employment and Housing Act. This ruling came after the same panel previously held that the law, Assembly Bill 51, was not preempted because it focused on “pre-agreement” behavior and not the arbitration agreement itself. In 2021, the panel sua sponte decided to rehear the case, apparently after Judge Fletcher (who was in the majority in both decisions) changed his mind on the law’s validity. In doing so, the panel eliminated a circuit split it had previously created between itself and the First and Fourth Circuits.Continue Reading Ninth Circuit Reverses Course on Arbitration