December 1 marks an important and long-awaited change to Federal Rule of Evidence 702. The Rule, pertaining to the testimony of expert witnesses, has not received a substantive update since 2000, when it was amended in the wake of the Daubert decision. Now, more than 20 years later—and after years of study—the Rule has been amended to make two issues clear: (1) that the proponent of an expert’s testimony must establish the admissibility of that testimony by a preponderance of the evidence; and (2) that an expert’s opinion must reflect a reliable application of his or her methodology to the case. These changes reinforce the key gatekeeping role that courts play in ensuring that only helpful, reliable expert testimony is heard by the factfinder.
A Closer Look: Second Circuit Steps In to Reverse Decision Refusing To Enforce “Click-Wrap” Mandatory Arbitration Agreement
On November 3, the Second Circuit reversed a lower court decision denying a motion to compel arbitration in a putative class action against Klarna. See Edmundson v. Klarna, Inc., 85 F.4th 695 (2d Cir. 2023). The decision offers guidance (and support) for companies looking to enforce similar “click-wrap” agreements with mandatory arbitration provisions.
Sixth Circuit Pumps the Brakes on Class Certification Alleging Common Defects in Ford F-150 Pickup Trucks
The Sixth Circuit vacated an order certifying five statewide classes alleging a common brake defect in Ford Motor Company’s F-150 pickup trucks, remanding the case to the district court “for more searching consideration” of whether commonality under Federal Rule of Civil Procedure 23(a)(2) was satisfied.
In Weidman v. Ford Motor Co., 2022 WL 1071289 (E.D. Mich. Apr. 8, 2022), plaintiffs had filed a putative class action against Ford over an alleged defective brake cylinder in their F-150 pickup trucks. The district court certified five statewide classes on three issues under Rule 23(c)(4): (1) whether the trucks’ brake systems were defective; (2) whether Ford possessed pre-sale knowledge of the defect; and (3) whether concealed information about the defect would be material to a reasonable buyer.
On a Rule 23(f) petition for interlocutory review, the Sixth Circuit vacated the class certification order, finding that the district court’s “cursory treatment of commonality, one of the four necessary class action ingredients, failed to meet Rule 23’s stringent requirements.” In Re Ford Motor Co., 2023 WL 7877971, at *1 (6th Cir. Nov. 16, 2023).
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).
California Superior Court Certifies Class of Android Users
A California Superior Court recently certified a putative class action of California residents “who have used mobile devices running the Android operating system to access the internet through cellular data plans provided by mobile carriers.” See Order Concerning: (1) The Parties’ Expert Exclusion Motions; and (2) Plaintiffs’ Class Certification Motion, Csupo, et al. v. Alphabet
Choice of Law Issues Largely Defeat Certification of Broad Nationwide Class of Rental Car Customers
A recent decision from the U.S District Court for the District of New Jersey denied certification of a nationwide class of rental car customers, holding that common questions did not predominate within the class because of variations in the applicable law. In Dawn Valli v. Avis Budget Rental Car Group, LLC, No. 14-6072, 2023 WL 6579150 (D.N.J. Oct. 10, 2023), the court held that, where the laws of “all fifty states” could govern the claims of class members, the court could not properly instruct a jury on the applicable law, and as a result choice of law issues “swallowed” any common issues. Id. at *6.
California Federal Court Throws Out Carbon Offset Class Action Against Etsy
We are seeing a growing number of class actions alleging consumer harms from corporate carbon offset policies. On October 13, a California federal court threw out such a case (albeit with leave to amend) against e-commerce site Etsy.
The lawsuit, Blackburn v. Etsy, Inc., No. 2:23-cv-05711 (C.D. Cal. 2023), stemmed from a number of carbon offset promises Etsy has made since 2019—that the company engages in “100% offsetting [of] all carbon emissions from shipping[,]” that it was “the first major online shopping destination to offset 100% of carbon emissions generated by shipping[,]” and that its “goal [is] to run a carbon neutral business[.]” Dkt. No. 20 at 1. Plaintiffs alleged that the carbon offset promises were false “due to endemic methodological errors and fraudulent accounting on behalf of offset vendors.” Id. Plaintiffs claimed that Etsy’s false promises caused them harm because they paid more for products on the site than they otherwise would have under the mistaken belief that Etsy’s shipments were carbon neutral.
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Federal Court Partially Dismisses Hacked Hard Drive Claims Where Plaintiffs Could Only Show Data Deletion, Not Theft
A federal district court in the Northern District of California granted in part a motion to dismiss putative class action claims filed against Western Digital, a hard drive manufacturer whose older devices experienced a cyber-attack, where the plaintiffs alleged that their stored data was deleted but not that it was stolen. While plaintiffs will be permitted to maintain claims related to the data loss, they lack standing to assert claims based on future data misuse.
California Federal Court Clamps Down on ‘En Masse’ Class Claims Identified by AI
Courts and litigants continue to grapple with the new frontier of artificial intelligence (“AI”). One recent case in California demonstrates a new wrinkle in this evolving landscape—the use of AI to aggregate class claims.
Because class settlements bind absent class members who do not object or opt out, Rule 23 requires courts to carefully review and approve them as “fair, reasonable, and adequate.” An important part of this inquiry is making sure class members are given adequate notice of the terms of the proposed settlement and their rights. When class members are required to submit claims to access settlement benefits, parties often turn to professional claims administration companies to assist in providing notice and facilitating the claims process. Under Rule 23, courts closely monitor the information that flows from class counsel and claims administrators to putative class members to make sure it complies with due process.
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Fourth Circuit Holds that the Enforceability of Arbitration Agreements Containing Class Waivers Must Be Resolved Before Class Certification
A significant recent decision by the Fourth Circuit confirms that arbitration agreements that contain class-action waiver provisions can be a powerful tool to defeat class certification. In In re Marriott International, Inc., the Fourth Circuit observed that while “no court has had occasion to expressly hold as much,” the “consensus practice” of courts is to “resolve the import of waivers at the certification stage—before they certify a class, and usually as the first order of business.” 2023 WL 5313006, at *6 (4th Cir. Aug. 18, 2023). The Fourth Circuit held that courts must address the implication of an arbitration clause containing a class-action waiver before, not after, a class is certified. And because the district court in this case did not do so, the Fourth Circuit vacated the district court’s class certification ruling. Id. at *1.