A Closer Look

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Arbitration agreements have become a fixture of American contracts, and companies have turned to them as a strategy for reducing class action exposure.  In recent years, plaintiffs have responded by initiating “mass arbitrations” – individual arbitrations filed on behalf of hundreds or thousands of customers or employees, which may immediately threaten companies with millions of dollars in arbitration-initiating fees alone.  Many companies, however, have been slow to react to the risks posed by mass arbitration.  This post discusses some of those risks, the difficulties companies have encountered in trying to address this issue, and potential strategies for mitigating the threat posed by mass arbitration.…

Continue Reading A Closer Look: Avoiding a “Mass”-ive Arbitration Problem

Class-action litigation involving overdraft and nonsufficient funds charges is nothing new to many financial institutions.  But in recent years, plaintiffs’ lawyers have shifted tactics and changed the types of practices they are targeting.  Financial regulators have also signaled their intention to place increased focus on these charges.  Financial institutions should therefore re-examine their account agreements and overdraft disclosure materials to ensure they minimize risk and exposure.…

Continue Reading A Closer Look: Overdraft Fees Continue to Invite New Legal Challenges and Regulatory Scrutiny

Background

Many food companies now make quantitative protein content claims on the front of pack or elsewhere on their product labels outside the Nutrition Facts Label (NFL), such as the example from a recent case below:  

FDA regulations direct manufacturers to use the “nitrogen method”—which generally calculates protein content by multiplying the nitrogen content of the food by 6.25—when calculating the amount of protein reported inside the NFL.  Companies have generally used the same method for protein claims made elsewhere on the label, i.e., outside the NFL.…

Continue Reading A Closer Look: Court Upholds Industry-Standard Method for Calculating Front-of-Pack Protein Content Claims

Delivering a significant win for the financial services industry, a California federal judge upheld “valid when made” rules promulgated by the Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) in California v. OCC, No. 4:20-cv-05200 (N.D. Cal. Feb. 8, 2022) and California v. FDIC, No. 4:20-cv-05860 (N.D. Cal. Feb. 8, 2022).  Those rules sought to undo the Second Circuit’s 2015 decision in Madden v. Midland Funding—a decision that class-action plaintiffs’ lawyers and state regulators have invoked to bring lawsuits challenging so-called “rent-a-bank” schemes between banks and third parties.  The rules were finalized in June and July 2020, and established a bright-line rule that the interest rate charged on a bank-made loan may still be charged after the loan is sold to a third party.…

Continue Reading A Closer Look: Federal Court Upholds OCC’s & FDIC’s Valid-When-Made Rules

Last year, in TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021), the Supreme Court confirmed that every class member must have Article III standing to recover damages in a class action.  As we have previously written, the Court’s decision – summed up as “[n]o concrete harm, no standing” – presents major obstacles to plaintiffs asserting class claims based on “bare procedural violation[s]” of statutes.  But Ramirez left unanswered some important questions about class action standing, and we offer some thoughts here on what the answers are likely to be.…

Continue Reading A Closer Look: Standing at Class Certification After TransUnion v. Ramirez