Class Action Procedure

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Defendants often consider whether weak class allegations can be stricken at the pleading stage, leaving just a low-exposure individual claim to defend.  That tactic may have a great chance of success—especially when a complaint asserts state-law claims on behalf of a nationwide class or challenges multiple misrepresentations—in light of a recent Fifth Circuit decision approving that strategy.

In Elson v. Black, __ F.4th __, 2023 WL 111317 (5th Cir. Jan. 5, 2023), plaintiffs brought a putative class action alleging that the defendants made various misrepresentations about a massager.  Plaintiffs sought a nationwide class and, in the alternative, seven subclasses representing the seven states where they reside.  The district court granted the defendants’ motion to strike the class allegation, a decision the Fifth Circuit upheld on several grounds.…

Continue Reading Fifth Circuit Upholds Early Dismissal of Class Allegations at Pleading Stage

From the implementation of the EU Representative Actions Directive to an explosion of claims in the UK Competition Appeal Tribunal, coupled with an ever-increasing role for litigation funders, class actions in both the UK and the EU are now taking off. We take a look at some of the key developments below.…

Continue Reading A Closer Look: The Rise of Class Actions in the UK and the EU

Dark chocolate manufacturers have recently been hit with a wave of putative class action complaints in New York and California federal courts, alleging that the confectioners breached an implied warranty of merchantability and engaged in misleading advertising by failing to disclose the levels of lead and cadmium in their dark chocolate products.  According to the complaints filed against The Hershey Company, Trader Joe’s, Mars, Inc., and most recently Godiva Chocolatier, Inc. and Lindt & Sprüngli, Inc., the plaintiffs allege that the products contain lead and cadmium in excess California’s Maximum Allowable Dose Level (“MADL”)—a “safe harbor” level established under California’s “Prop. 65” law, the Safe Drinking Water and Toxic Enforcement Act of 1986.

The class action mechanism and the claims of false and deceptive advertising are a more novel approach to lead-in-chocolate lawsuits, which have traditionally been litigated in California state court as a violation of Prop. 65.  That law requires manufacturers, distributors, suppliers, and retailers of a consumer product containing certain listed chemicals to provide consumers with a “clear and reasonable” warning if exposure to that listed chemical poses a significant risk of cancer, or reproductive or developmental harm.  Mars, Hershey, Lindt, and Trader Joe’s previously entered into a settlement in 2018 to resolve Prop. 65 claims against the chocolatiers brought by the organization As You Sow.

Continue Reading Leaving a Bitter Taste: Class Action Lawsuits Alleging Lead and Cadmium in Dark Chocolate

The Sixth Circuit recently affirmed a district court’s application of nonmutual offensive collateral estoppel to negligence claims arising out of an MDL—potentially raising the stakes for bellwether trials that are not considered binding by the district court at the outset and the impact that rulings in those cases could have on later decisions.…

Continue Reading Sixth Circuit Applies Offensive Collateral Estoppel in Subsequent Mass Tort Proceedings

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.…

Continue Reading SCOTUS Set to Resolve Circuit Split over Stays Pending Arbitration Appeal

The First Circuit recently vacated and remanded a district court’s approval of a proposed class action settlement “because the absence of separate settlement counsel for distinct groups of class members makes it too difficult to determine whether the settlement treated class members equitably.” Murray v. Grocery Deliver E-Servs. USA Inc., — F.4th —, 2022…

The Second Circuit recently vacated a district court ruling certifying a class of thousands of employee benefit plans whose fiduciaries contracted with the Teachers Insurance and Annuity Association of America (TIAA) to provide collateralized loans to plan participants, in a case that clarifies how courts must analyze challenges to Rule 23’s “predominance” requirement for class…

Last month, this blog covered the Eleventh Circuit’s denial of a petition to rehear Johnson v. NPAS Solutions, LLC, a decision that held that class action incentive awards are per se unlawful.  See 2022 WL 3083717 (11th Cir. Aug. 3, 2022).  That denial left the Eleventh Circuit as the only circuit where class action incentive awards can never be included in settlements under any circumstances. Now, the Department of Justice has relied on the Eleventh Circuit’s decision in Johnson to try to block class action incentive awards in a class action settlement with the federal government. …

Continue Reading DOJ Seeks to Block Class Action Incentive Awards in Recent Class Action Settlement

The Third Circuit recently vacated an order denying class certification, and in the process provided more clarity on what plaintiffs must do to satisfy Rule 23’s predominance and ascertainability requirements.

In Kelly v. RealPage Inc., — F.4th —, 2022 WL 3642113 (3d Cir. Aug. 24, 2022), the plaintiffs alleged that their rental applications were…

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.…

Continue Reading Post-Litigation Refund Check Does Not Moot Class Representative’s Damages Claim, but It Does Defeat Class Certification