Practice Pointers

            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 Seventh Circuit has added its voice to a growing circuit split on Rule 23(c)(4) issue classes.  In Jacks v. DirecSat USA, LLC—a long-running class action alleging wage and hour violations by DirectSat satellite service technicians—that court weighed in on the scope of Rule 23(c)(4) and its interplay with Rule 23(b).  Jacks v. DirectSat USA, LLC, __ F.4th __, 2024 WL 4380256 (7th Cir. Oct. 3, 2024).             

Jacks had a lengthy procedural history.  After initially certifying a Rule 23(b)(3) class, the District Court decertified it following a 2013 Seventh Circuit decision.  Id. at *2.  Thereafter, the District Court certified “fifteen liability-related issues to proceed on a classwide basis under Rule 23(c)(4).”  Id.  Nearly four years later, the case was assigned to a new judge.  Id. at *3.  Three years after that, defendants moved to decertify the issue classes.  Id.  The new judge agreed, decertifying the issue classes because “defendants’ liability [could not] be determined on a classwide basis” and so the classes did not satisfy Rule 23(b)(3).  Id. Continue Reading What’s the Issue? Seventh Circuit Clarifies Scope of Rule 23(c)(4) Issue Classes

A recent decision by the California Supreme Court underscores why courts should be hesitant to grant class certification in cases in which the learned intermediary doctrine applies.  Continue Reading California Supreme Court Decision Highlights Potential Class Certification Defenses for Manufacturers of Prescription Drugs & Medical Devices

In a case of first impression, the Ninth Circuit recently held that when there is ambiguity about the scope of a putative or certified class, American Pipe statute of limitations tolling should generally apply to potentially excluded class members.  This question is likely to arise where a proposed class definition is narrowed during the course of litigation such that certain putative members may no longer fit within the definition.  Should those now-excluded bystander plaintiffs argue that American Pipe tolling applies to their claims, courts in the Ninth Circuit are now instructed to resolve that ambiguity in favor of such bystander plaintiffs.Continue Reading A Closer Look: Ninth Circuit Extends American Pipe Tolling to Potentially Excluded Class Members in Face of Ambiguous Class Definitions

Companies in the food, beverage, pharmaceutical, and other industries continue to face litigation regarding their products’ labeling, including as to whether certain representations on labels are deceptive or misleading.  In the Second Circuit and elsewhere, these lawsuits tend to turn on what an objective “reasonable consumer” would understand the representation at issue to mean, and whether that “reasonable consumer” would likely be misled under the circumstances.  In Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir, May 2, 2024), the Second Circuit confirmed how important expert testimony can be to that question, and how efforts to exclude expert testimony can ultimately be the difference between winning and losing. Continue Reading A Closer Look: The Importance of Expert Testimony for “Reasonable Consumer” Claims

Courts have recently been grappling with an influx of class actions alleging that company websites are in violation of wiretapping and other privacy laws when using third-party technology to provide services on their websites.  Three different federal courts recently dismissed cases on similar grounds, demonstrating the challenges plaintiffs face with maintaining them and strategies defendants should keep in mind to defeat them. 

Two of the cases accuse healthcare providers of improperly sharing personal health information with third-party technology companies through the use of pixel technologies on the healthcare provider’s website.  In the first case, Doe v. Davita, Inc., plaintiffs accused Davita—a kidney dialysis provider—of violating the California Invasion of Privacy Act (“CIPA”) and other laws by purportedly collecting “patients’ personal and sensitive medical information on the Online Platforms and … improperly shar[ing] [this information] with the Tracking Technologies without patients’ consent.”  2024 WL 1772854, at *2 (S.D. Cal. April 24, 2024).  The court disagreed and dismissed the claims, holding that plaintiffs did “not explain what specific information they provided to Defendant” and calling their claims “conclusory.”  Id.  The complaint, said the court, was “devoid of any facts supporting” plaintiffs’ contentions that Davita disclosed “personal, confidential, and sensitive medical information; medical treatment; and payment information” with the third party.  Id. Continue Reading Lack of Plaintiff-Specific Allegations Dooms California, Pennsylvania Privacy-Based Class Actions

As companies have increased efforts to represent their products as environmentally friendly, “greenwashing” lawsuits—which target companies (often under consumer protection statutes) based on allegations of false or misleading statements regarding the environmental impact of their products or practices—have also increased. A recent order from the district court in the Northern District of California illustrates the difficulty in attempting to defeat these claims before trial if a strong evidentiary record has not been developed.Continue Reading N.D. Cal. Judge Allows “Greenwashing” Claims to Proceed to Trial

The Ninth Circuit recently upheld a California district court’s dismissal of a proposed class action against Shopify for lack of personal jurisdiction, cautioning that subjecting web-based platforms to jurisdiction in every forum in which they are accessible would lead to the “eventual demise of all restrictions” on personal jurisdiction.

In Briskin v. Shopify, Inc., 2022 WL 1427324 (N.D. Cal. May 5, 2022), the plaintiff alleged that Shopify, a Canadian-based company that provides online merchants throughout the United States with an e-commerce payment platform, violated California privacy and consumer protection laws by allegedly collecting his sensitive personal information while using a California-based retailer’s website.  The district court in the Northern District of California dismissed the action, finding that it lacked both general and specific personal jurisdiction over Shopify. 

A panel of the Ninth Circuit affirmed the district court’s dismissal of the complaint for lack of personal jurisdiction, holding that Shopify could not be subjected to jurisdiction in California where it did not expressly aim the alleged conduct implicated by the lawsuit toward California.  Briskin v. Shopify, Inc., 2023 WL 8225346 (9th Cir. Nov. 28, 2023).  Briskin confirms the Ninth Circuit’s view that for interactive websites and other web-based services and platforms that operate nationwide, “something more” is needed to satisfy the express aiming requirement for personal jurisdiction.Continue Reading Ninth Circuit Finds No Personal Jurisdiction in California Over Website

            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

We previously covered the Eleventh Circuit’s decision in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020), in which the Eleventh Circuit relied on two Supreme Court decisions from the 1880s to prohibit courts from awarding incentive or service awards to class representatives in class settlements.  Id. at 1255 (citing Trustees v. Greenough, 105 U.S. 527 (1881), and Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885).  Although the Eleventh Circuit was the first federal appellate court to bar these awards in all circumstances, a recent Second Circuit decision agreed that these awards are “likely impermissible” under Supreme Court precedent, while observing that it would take the entire Second Circuit to overturn prior precedent upholding incentive awards.  See Fikes Wholesale, Inc. v. HSBC Bank USA, N.A., 62 F.4th 704, 721 (2nd Cir. 2023).  The Department of Justice has likewise implied that it agrees with the Eleventh Circuit’s position, relying on the Johnson decision in an effort to block incentive awards from a class settlement in a District of Columbia court.  Continue Reading Supreme Court Denies Cert on Incentive Awards