Class Action Procedure

Cy pres (or “next best”) provisions are a relatively common provision of class action settlements.  The cy pres doctrine permits funds from a cash settlement in a class action to be sent to a third party, usually a charitable organization with a mission related to the claims in the lawsuit, rather than to class members.  Cy pres provisions are typically used for residual funds in a settlement pool or, less commonly, when class members are hard to identify.  But cy pres provisions have come under increasing scrutiny, as evidenced by an Ohio federal court’s recent rejection of a class action settlement based solely on its cy pres provision.  Hawes v. Macy’s Inc., No. 1:17-CV-754, 2023 WL 8811499 (S.D. Ohio Dec. 20, 2023). Continue Reading Federal Court Rejects Class Action Settlement Over Cy Pres Provision

The Class Action Fairness Act permits removal of lawsuits brought under state-law rules similar to Federal Rule of Civil Procedure 23.  A court in the Northern District of California recently denied a motion to remand even though the complaint did not reference California Code of Civil Procedure section 382, California’s Rule 23 analogue.  See Pac. Coast Fed’n of Fishermen’s Associations, Inc. v. Chevron Corp., No. 18-CV-07477-VC, 2023 WL 7299195 (N.D. Cal. Nov. 1, 2023).  The ruling underscores that in the Ninth Circuit, “the CAFA removal inquiry focuses on the complaint’s substance, not formal labels and allegations.”  Id. at *2.Continue Reading Court Finds CAFA Removal Proper, Even Though Complaint Did Not Explicitly Invoke Rule 23 Equivalent

On December 5, 2023, the Ninth Circuit vacated a decision by a district court approving a $5.2 million class action settlement between plaintiff Lisa Kim and Tinder, Inc., a mobile dating app.  The case alleged that Tinder’s pricing scheme—which charges users over the age of 29 more for its premium packages than users under the age of 29—is discriminatory and violates California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq, and California’s unfair competition law, Cal. Bus. & Prof. Code §§ 17200 et seq.  This was the second time the Ninth Circuit reversed the district court’s approval of a class settlement in this case. Continue Reading Ninth Circuit Rejects Class Action Settlement in Tinder Case for the Second Time

            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. Continue Reading A Closer Look:  Changes To F.R.E. 702 Will Help Ensure Courts Follow The Expert ‘Gatekeeping’ Function

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.Continue Reading A Closer Look: Second Circuit Steps In to Reverse Decision Refusing To Enforce “Click-Wrap” Mandatory Arbitration Agreement

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).Continue Reading Sixth Circuit Pumps the Brakes on Class Certification Alleging Common Defects in Ford F-150 Pickup Trucks

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).Continue Reading Eleventh Circuit Holds Willful Violations of the Fair Credit Reporting Act Do Not Require Proof of Actual Damages

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…

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.Continue Reading Choice of Law Issues Largely Defeat Certification of Broad Nationwide Class of Rental Car Customers

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. Continue Reading California Federal Court Throws Out Carbon Offset Class Action Against Etsy