In a one-line order issued last week, the Supreme Court dismissed In Re Grand Jury, No. 21-1397, one of the most significant cases about the attorney-client privilege in decades. The dismissal came just two weeks after oral argument. The Court explained that the writ of certiorari had been “improvidently granted,” meaning the Court should
A Closer Look: Equitable Jurisdiction in the Ninth Circuit After Sonner
Under the Ninth Circuit’s 2020 decision in Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), plaintiffs cannot recover equitable relief in federal court if they have an adequate legal remedy. More than two years later, district courts remain divided on how to apply Sonner at the pleading stage, with some postponing the analysis to later stages and others routinely dismissing equitable claims. In courts that take the stricter view, Sonner can be a useful tool for narrowing the claims class action defendants must litigate in a federal case, particularly in California, where common consumer protection claims are largely limited to equitable remedies. That said, a pair of recent Ninth Circuit decisions highlights that defendants should carefully consider the risk that a plaintiff will refile dismissed equitable claims in state court.
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SCOTUS Set to Resolve Circuit Split over Stays Pending Arbitration Appeal
The Supreme Court recently granted certiorari in a case to resolve a circuit split that has serious implications for companies who are unsuccessful in their efforts to enforce arbitration provisions in federal district courts.
In Coinbase, Inc. v. Bielski, No. 22-105, the defendant moved to compel arbitration in two putative class actions. The motions to compel were denied, and the defendant sought stays while it appealed the denials—which the Federal Arbitration Act gives defendants an automatic right to do. See 9 U.S.C. § 16. Both motions to stay were denied, and the Ninth Circuit affirmed both decisions.
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Mass Arbitration Procedures and Strategies Tested in Litigation
We previously wrote about the rising trend of mass arbitration and how companies and arbitration providers have responded to it thus far, including by adopting new rules and contract terms specifically geared towards coordinated proceedings. It may be tempting to impose strict controls on how mass arbitrations can proceed. But in considering their options, companies
Post-Litigation Refund Check Does Not Moot Class Representative’s Damages Claim, but It Does Defeat Class Certification
When a class action is filed, defendants often wonder whether tendering a payment to a class representative can defeat the claims. In a recent decision, the Third Circuit held that a mid-litigation payment to a class representative plaintiff does not moot her claim if the check is not cashed. Duncan v. Governor of the Virgin Islands, — F.4th —-, 2022 WL 3906213 (3d Cir. Aug. 31, 2022). But tendering the payment, even if the check is uncashed and even if the plaintiff claims the payment does not cover the full value of her claim, did make the plaintiff an atypical class representative and provided a basis to defeat certification of a damages class.
Ninth Circuit Panel To Reconsider Whether FAA Preempts California Labor Law
We previously wrote about Chamber of Commerce v. Bonta, 13 F.4th 766 (9th Cir. 2021), in which a split panel of the Ninth Circuit held that the Federal Arbitration Act does not preempt a California Labor Code provision prohibiting employers from requiring applicants or employees “to waive any right, forum, or procedure” for
Individualized Damages Issues Preclude Class Certification in Eleventh Circuit
On the heels of the Ninth Circuit’s recent decision in Bowerman—which held that questions concerning the “existence of damages” for each class member can prevent certification—the Eleventh Circuit became the latest in a growing number of courts to conclude that class certification should be denied when plaintiffs cannot prove that each individual class member actually suffered damages.
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Ninth Circuit Gives Teeth To Predominance in Voiding a Misclassification Suit Win
A recent Ninth Circuit decision continues to emphasize how, post-Comcast, defendants should look for ways to characterize individualized issues as questions of liability, not questions of damages.
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Third Circuit Refuses to Accept Inferences to Support Findings of Numerosity and Commonality
The Third Circuit’s recent decision in Allen v. Ollie’s Bargain Outlet, Inc., — F.4th —-, 2022 WL 2284654 (3d Cir. 2022), gave close scrutiny to two elements of the class certification inquiry – numerosity and commonality – that are often deemed satisfied with little analysis, and rejected the district court’s reliance on inferences drawn from limited evidence.
Supreme Court Hands California Employers a Significant (if Qualified) Win
On June 15, the Supreme Court issued its decision in Viking River Cruises, Inc. v. Moriana, No. 20-1573, holding that the Federal Arbitration Act (“FAA”) requires California courts to honor agreements to arbitrate individual claims under the California Labor Private Attorneys General Act of 2004, Cal. Lab. Code § 2698 et seq. (“PAGA”). Although Viking River Cruises is a significant win for California employers, it remains to be seen whether and to what extent the full scope of that win will be durable.
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