A court in the Southern District of New York recently compelled arbitration in the putative class action Skillern et al v. Peloton Interactive, Inc. (No. 1:21-cv-06808), concluding that the defendant did not waive its ability to seek arbitration by defaulting in a prior unrelated arbitration proceeding.  The judge differentiated between this case and a series of other decisions where a movant had failed to pay arbitration fees in an earlier arbitration proceeding involving the same parties.  This case is another helpful precedent strongly favoring arbitration as an alternative dispute resolution process in lieu of class actions.

Continue Reading No Pay, No Problem: New York Federal Court Compels Arbitration Despite Prior Unrelated Failure to Pay Arbitration Fees

We previously wrote about Chamber of Commerce v. Bonta, 13 F.4th 766 (9th Cir. 2021), in which a split panel of the Ninth Circuit held that the Federal Arbitration Act does not preempt a California Labor Code provision prohibiting employers from requiring applicants or employees “to waive any right, forum, or procedure” for certain claims.  The majority reasoned that the California law escaped preemption because it was not specific to arbitration and regulated “pre-agreement” behavior as opposed to the agreements themselves.

Shortly thereafter, appellees sought rehearing en banc.  In February 2022, the same panel majority agreed to defer consideration of the petition pending disposition of Viking River Cruises v. Moriana, where the Supreme Court was poised to decide whether the FAA preempted a different California law.

In June, the Supreme Court decided Viking River Cruises v. Moriana, 142 S. Ct. 1906 (2022), holding that the FAA preempted a California rule to the extent that the rule precluded division of certain representative claims via an agreement to arbitrate because that indivisibility “effectively coerce[d] parties to opt for a judicial forum” – a result that the Court deemed “incompatible with the FAA.”  By order dated August 22, 2022, a different majority of the Bonta panel voted sua sponte to grant panel rehearing, withdrawing the original Bonta opinion and denying as moot the petition for rehearing en banc.  The order did not explain its reasons for granting rehearing or indicate how the panel now expects to decide the case.

The Fifth Circuit reversed a class certification order for claims under the Fair Debt Collection Practices Act (“FDCPA”) because the plaintiff lacked Article III standing.  Perez v. McCreary, Veselka, Bragg & Allen, P.C., No. 21-50958, 2022 WL 3355249 (5th Cir. Aug. 15, 2022).  The Court held that merely sending a letter to collect a time-barred debt, although a violation of the FDCPA, does not satisfy Article III’s injury-in-fact requirement.

Continue Reading Fifth Circuit Applies TransUnion To Conclude Plaintiff Lacked Standing To Assert FDCPA Claims.

On the heels of the Ninth Circuit’s recent decision in Bowerman—which held that questions concerning the “existence of damages” for each class member can prevent certification—the Eleventh Circuit became the latest in a growing number of courts to conclude that class certification should be denied when plaintiffs cannot prove that each individual class member actually suffered damages.

Continue Reading Individualized Damages Issues Preclude Class Certification in Eleventh Circuit

Last week the Third Circuit reversed a summary judgment ruling in favor of Harriet Carter Gifts and NaviStone for alleged violations of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, or WESCA.  See Popa v. Harriet Carter Gifts, Inc., Case No. 21-2203, 2022 WL 3366425 (3rd Cir. Aug. 16, 2022). This lawsuit is one of many recent putative class actions attempting to apply decades-old wiretapping laws against websites and their service providers.  The named plaintiff is a consumer that allegedly shopped on Harriet Carter Gifts’ website while NaviStone’s marketing software was installed on the website.  Plaintiff argued that defendants violated WESCA by simultaneously sending her interactions with Harriet Carter’s website to NaviStone.

Continue Reading Third Circuit Revives Wiretapping Claims Against Marketing Software Company

A settlement class that Judge Lewis A. Kaplan (S.D.N.Y.) was likely to approve circa June 2021 was rejected “on further reflection” last week, due to a lack of information about how the lead plaintiff stacked up against a class of largely “anonymous” crypto investors. 

Continue Reading Crypto Class Settlement Nixed Due to Insufficient Data on “Anonymous” Investors 

After prevailing in a class action trial regarding allegedly false advertising, plaintiffs sought $91 million in statutory damages under New York’s General Business Law (GBL), plus $49 million in prejudgment interest. In an opinion that will likely serve as an important precedent for future GBL cases – and could influence how aggressively plaintiffs pursue them – a court in the Northern District of California rejected plaintiffs’ request, and instead awarded $8.3 million in statutory damages, plus interest. Montera v. Premier Nutrition Corp., 2022 WL 3348573 (N.D. Cal. Aug. 12, 2022). The plaintiffs’ requested award, the court held, was “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”

Continue Reading Court Rejects Plaintiffs’ Post-Trial Bid For $140 Million In Statutory Damages Under New York False Advertising Laws

On July 29, Judge William Alsup of the Northern District of California issued a decertification order in a long-running class action dispute concerning Cricket Wireless’s 4G advertising, ruling that plaintiff’s counsel made “too critical a mistake” in fashioning their class-wide damages model.  See Freitas v. Cricket Wireless, LLC, 2022 WL 3018061, at *6 (N.D. Cal. July 29, 2022).

Continue Reading “Critical Mistake” In Damages Model Sinks California Class Action

The Northern District of California denied class certification in a data breach suit against Zoosk, an online dating service, concluding that the lead plaintiff had waived any right to represent a class by agreeing to a class-action waiver.  See Order Denying Class Certification, Flores-Mendez v. Zoosk, Inc., No. 3:20-04929-WHA (N.D. Cal. July 27, 2022).

Continue Reading Class Certification Denied in Data Breach Class Action Based on Class-Action Waiver in Terms of Service

In Drazen v. Pinto, the Eleventh Circuit vacated a class settlement and held that in order to receive individual damages (whether through a settlement or otherwise), all class members must have Article III standing under Circuit precedent.  2022 WL 2963470, at *6 (11th Cir. July 27, 2022).  The decision gives defendants another tool to defeat class certification, while at the same time makes it more difficult to include class members that lack standing in classwide settlements. 

Continue Reading Eleventh Circuit Holds that All Class Members Must Have Standing Under Circuit Law to Recover Individual Damages