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.
Continue Reading Individualized Damages Issues Preclude Class Certification in Eleventh Circuit
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.
Continue Reading Ninth Circuit Gives Teeth To Predominance in Voiding a Misclassification Suit WinThird 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.
Continue Reading Third Circuit Refuses to Accept Inferences to Support Findings of Numerosity and CommonalitySupreme 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.
Continue Reading Supreme Court Hands California Employers a Significant (if Qualified) WinSupreme Court Decision Makes It Easier to Waive Right to Arbitration
On May 23, 2022, the Supreme Court unanimously held that a party opposing arbitration is not required to demonstrate prejudice to show that the other party has waived its contractual arbitration rights.
Before today’s decision, nine federal courts of appeals had adopted the rule that a “party can waive its arbitration right by litigating only when its conduct has prejudiced the other side.” Morgan v. Sundance, 596 U.S. __ (2022). Two other circuits had held no showing of prejudice was required.
Continue Reading Supreme Court Decision Makes It Easier to Waive Right to ArbitrationPractice Pointers: Know Your Plaintiff
One of the most common failings of plaintiffs’ counsel is inadequate due diligence on the individuals they put forward as putative class representatives. Defense counsel should not repeat that mistake.
It is not unusual for putative class representatives to have flawed personal claims or to be subject to important individual defenses. A named plaintiff may also present facts that make his claim demonstrably atypical of the class, or he may have baggage – such as a past criminal conviction for fraud – that make him facially inadequate as a class representative. Sometimes it turns out a named plaintiff isn’t even a member of the proposed class.
Continue Reading Practice Pointers: Know Your PlaintiffHeartbreakers Gentlemen’s Club Gets Lucky with Arbitration Win in Fifth Circuit
A recent Fifth Circuit decision continues the trend of courts rejecting putative class and collective actions where absent class members are subject to arbitration agreements.
Exotic dancers sued A&D Interests, Inc. (doing business as the “Heartbreakers Gentlemen’s Club”) in a putative Fair Labor Standards Act collective action for allegedly misclassifying
Continue Reading Heartbreakers Gentlemen’s Club Gets Lucky with Arbitration Win in Fifth CircuitNinth Circuit Clarifies When Online Arbitration Agreements are Unenforceable for Lack of Consent.
Companies that include arbitration agreements in online terms and conditions may want to take note of a recent Ninth Circuit opinion that refused to enforce an arbitration agreement on lack-of-consent grounds even though the arbitration agreement contained an opt-out provision.
In Berman v. Freedom Financial Network, LLC, the Ninth
Continue Reading Ninth Circuit Clarifies When Online Arbitration Agreements are Unenforceable for Lack of Consent.
Practice Pointers: Should a Putative Class Action Be Settled on an Individual Basis?
There are numerous ways that a class action may be won through an effective litigation strategy. But in some instances a corporate defendant will conclude that the most cost-effective approach is to pursue settlement rather than to take on the risks and costs of further litigation. Before going down that road, one of the first things that will need to be evaluated is whether to pursue a class-wide settlement, complete with court approval under Rule 23(e) or its state equivalent, or instead to try the simpler route of settling with the named plaintiff only.
Continue Reading Practice Pointers: Should a Putative Class Action Be Settled on an Individual Basis?Ninth Circuit Affirms Denial of Class Certification for Contract Claims Requiring Individualized Findings of Injury
The Ninth Circuit has again confirmed that predominance may be absent if an individualized analysis is required to determine whether each class member has suffered actual injury. In Lara v. First National Insurance Co. of America, — F.4th —, 2022 WL 414691 (9th Cir. Feb. 11, 2022), the plaintiffs alleged that the defendant breached its insurance contracts with consumers when it failed to apply the formula required under Washington law to determine the pre-accident market value of totaled vehicles. The record showed that that the payments the defendant made to its policyholders were not consistently affected adversely by its failure to apply the allegedly required methodology, and that some class members could have received amounts equal to or greater than what they were entitled to under the plaintiffs’ theory of the case.
Continue Reading Ninth Circuit Affirms Denial of Class Certification for Contract Claims Requiring Individualized Findings of Injury