Class Action Procedure

One March 20, 2025, the California Supreme Court ruled in Madrigal v. Hyundai Motor America that California Code of Civil Procedure Section 998 can bar plaintiffs from recovering litigation costs if they enter a pre-trial settlement that is less favorable than a prior defense offer. 

The general rule in California is that a “prevailing party” may recover all litigation costs as a matter of right. CCP Section 998 modifies this general rule in cases where the defense makes a qualifying settlement offer. Under Section 998, if a plaintiff rejects or fails to timely accept a qualifying settlement offer and then “fails to obtain a more favorable judgment or award,” the plaintiff may no longer recover post-offer litigation costs. This rule is designed to encourage reasonable pre-trial settlements. Parties often contract around this rule by providing for the allocation of costs and fees in settlement agreements.Continue Reading California Supreme Court Clarifies that CCP Section 998’s Cost-Shifting Rule Applies to Pre-Trial Settlements

An Illinois federal court recently rejected efforts to bring a consumer class action against the parent company of Fiji brand water over allegations that its plastic water bottles contained microplastics.  In doing so, the court added its voice to the growing body of case law about microplastics and offered a window into how to attack similar types of contamination allegations.

In Daly et al. v. The Wonderful Company, LLC, 2025 WL 672913 (N.D. Ill. Mar. 3, 2025) plaintiffs alleged that Fiji’s claim that its water is “natural artesian water” are deceptive because the product bottles contain microplastics.  Id. at *1.  Plaintiffs brought claims under five state consumer protection laws and sought to represent a class of consumers allegedly harmed by microplastics in the bottles.  Id.  The company moved to dismiss the complaint, arguing (among other things) that plaintiffs had not plausibly alleged that the Fiji Water bottles actually contained microplastics and that plaintiffs lacked standing to pursue injunctive relief.  Id. at *2, *6.  Because plaintiffs failed to allege that the water bottles contained microplastics, TWG argued that they could not identify any deceptive statement giving rise to their claims.  Id. at *6.    

On March 3, the court agreed and dismissed plaintiffs’ complaint for two reasons.Continue Reading Illinois Federal Court Rejects Fiji Water Microplastics Case

In Lackey v. Stinnie, the Supreme Court has clarified who qualifies as a “prevailing party” eligible for attorneys’ fees under certain statutes.  The decision carries significant implications for the availability of attorneys’ fees in class action cases where defendants are able to moot claims before a court enters a final judgment.   

At issue in Lackey was whether plaintiffs could obtain attorneys’ fees under 42 U.S.C. §1988(b), which allows the “prevailing party” to recover attorneys’ fees in certain civil rights cases.  Plaintiffs secured a preliminary injunction but were not able to obtain any further relief (including a final judgment) because the government voluntarily ceased the challenged conduct.  In a 7-2 opinion authored by Chief Justice Roberts, the Supreme Court held that the plaintiff did not qualify as a “prevailing party.”Continue Reading No Final Judgment, No Attorneys’ Fees: The Supreme Court Clarifies the Meaning of “Prevailing Party” in Lackey v. Stinnie

A court in the Northern District of California recently denied Google’s request to prevent more than 69,000 putative class members from opting out of a certified class in favor of pursuing individual arbitration of their claims against Google.  See In re Google Assistant Privacy Litig., 2025 WL 510435, at *1 (N.D. Cal. Feb. 14, 2025)Continue Reading California Federal Court Permits Thousands of Arbitration Opt-Outs from Certified Class

The Illinois Supreme Court recently ruled that the named plaintiff in a putative data breach class action lacked standing to pursue her claims given that her private personal information had not actually been misused by a third party.Continue Reading Illinois Supreme Court Rules That Plaintiff Lacks Standing to Bring Putative Data Breach Class Action

In TransUnion LLC v. Ramirez, the Supreme Court held that “every class member must have Article III standing in order to recover individual damages.”  594 U.S. 413, 427, 431 (2021) (cleaned up).  Post-TransUnion, courts have grappled with that guidance, especially as to whether a class that contains uninjured class members may permissibly be certified.  As set forth in our recent post, the Supreme Court has granted certiorari in Laboratory Corporation of America Holdings v. Davis to address a circuit split on that issue.Continue Reading Fourth Circuit Concludes TransUnion Demands Evidence of Injury for All Class Members

A Pennsylvania court recently dismissed a wiretapping complaint filed against a trio of defendants for lack of Article III standing, lack of personal jurisdiction, and failure to state a claim in Ingrao v. Addshoppers, Inc., 2024 WL 4892514 (E.D. Pa. Nov. 25, 2024).

The two plaintiffs in this case…

Continue Reading Pennsylvania Court Dismisses A Trio of Defendants in Website Wiretapping Suit Challenging Email Marketing Program

Despite a lead plaintiff with unique injuries, the Northern District of Indiana recently certified a class seeking economic damages under Indiana’s consumer protection statute in a case challenging contaminated hand sanitizer manufactured by 4e Brands North America, LLC.  Callantine v. 4e Brands North America, LLC, 2024 WL 4903361 (N.D. Ind. Nov. 27, 2024). 

In June 2020, Defendant 4e voluntarily recalled all of its hand sanitizer lots due to the presence of methanol.  The plaintiff filed a class action lawsuit two months later, alleging that she had suffered both economic and personal injuries, and that she was entitled to statutory damages.  The individual class members’ damages, however, would be “largely limited to statutory damages.” Continue Reading Unique Injuries No Bar to Class Certification Pursuing Economic Damages

            An important issue in class action practice is how courts are to evaluate the reliability of expert evidence that purports to support class certification.  On November 22, the Sixth Circuit joined a majority of circuits in holding that a full Daubert analysis is required at the class certification stage where the expert evidence is material to class certification.

            In In re Nissan North Am., Inc. Litig., — F.4th —, 2024 WL 4864339 (6th Cir. Nov. 22, 2024), Nissan owners brought state law claims alleging various defects with automatic braking systems in Nissan vehicles.  The district court certified 10 statewide classes under Fed. R. Civ. P. 23(b)(3). Id. at *1. On interlocutory appeal, the Sixth Circuit reviewed three aspects of the district court’s certification decision:  (1) whether the case involved common questions of law or fact under Rule 23(a)(1); (2) whether common questions predominated over individual ones under Rule 23(b)(3); and (3) whether the court could rely on expert evidence without ensuring that it satisfied the Daubert standard. Id. at *3. While it found error in the district court’s determinations on each of these issues, this post focuses on the expert-related question.Continue Reading No Evading Daubert at Class Certification Stage, Sixth Circuit Rules

The First Circuit recently held as a matter of first impression that denial of class certification does not strip a federal court of jurisdiction under the Class Action Fairness Act (“CAFA”), consistent with earlier decisions from the Second, Third and Seventh Circuits.  The opinion also addressed two exceptions to CAFA—the “home state” and “local controversy” exceptions—ultimately finding that the latter did defeat CAFA jurisdiction in the case before it and required remand to state court.  See Kress Stores of Puerto Rico, Inc. v. Wal-Mart Puerto Rico, Inc., — F.4th —-, 2024 WL 4750774 (1st Cir. Nov. 12, 2024).Continue Reading First Circuit Agrees with Other Circuits that CAFA Jurisdiction Survives Class Certification Denial