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Proskauer’s perspective on developments and trends in commercial litigation.

Category Archives: Class Action

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California Defendants Beware: Failing to Compel Arbitration Against Named Plaintiff Could Have Far-Reaching Consequences

California defendants in class actions should be wary of seeking a strategic advantage by litigating before seeking to compel arbitration. The Court of Appeal held recently in Sprunk v. Prisma LLC  that a defendant in class action litigation can waive its right to seek arbitration against absent, unnamed class members by deciding not to compel … Continue Reading

Concrete Enough to Stand: Ninth Circuit Upholds FCRA Claims in Spokeo

On August 15, 2017, the Ninth Circuit delivered the latest episode in the Robins v. Spokeo saga, reaffirming on remand from the Supreme Court that plaintiff Robins had alleged an injury in fact sufficient for Article III standing to bring claims under the Fair Credit Reporting Act (FCRA). Robins had brought a putative class action against … Continue Reading

The Eighth Circuit Reignites Claims of Continuing Conduct in Propane Tank Conspiracy

A split Eighth Circuit recently reversed a prior panel ruling and reignited antitrust claims against distributors of pre-filled propane tanks. The 5-4 majority cited the 1997 Supreme Court decision Klehr v. A.O. Smith Corp. to rule that for allegations of a price-fixing conspiracy under the Sherman Antitrust Act, each sale at an artificially inflated price … Continue Reading

Putative Class Complains that Annie’s “Strawberry Fruit Snacks” Lack Strawberries

On August 1, 2017, plaintiff Raymond Alvandi filed a putative class action in California federal court against Annie’s, Inc., seeking damages and injunctive and declaratory relief. Alvandi alleges that Annie’s misrepresented the strawberry content and nutritional and health qualities of its “Summer Strawberry” Organic Bunny Fruit Snacks. Alvandi seeks to represent a nationwide class of all … Continue Reading

Supreme Court Clarifies When Service by Mail is Permitted under the Hague Convention

The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention” or “Convention”), was designed to simplify and standardize the service of legal documents across international borders. But for decades, U.S. courts divided over a seemingly simple question: does the Hague Service Convention prohibit service by mail?… Continue Reading

Arbitration Clauses Extending to Non-Signatory Affiliates: Are They Enforceable?

A recent decision of the New Jersey Appellate Division considered the enforceability of arbitration agreements by non-signatories. In Foti v. Toyota Motor Sales, U.S.A., Inc., the plaintiff filed a putative class action complaint against defendant alleging violations of New Jersey’s Truth-In-Consumer Contract, Warranty and Notice Act (“TCCWNA”), as well as the state’s Lemon Law (N.J.S.A. … Continue Reading

Court Dismisses “Phantom Markdown” Suit against Saks

On March 22, the U.S. District Court for the Southern District of California dismissed a putative class action against Saks Inc. alleging that Saks advertised “phantom markdowns” of Saks-branded products. The Plaintiff alleged that he purchased a pair of men’s shoes “valued” by Saks at $145 but sold at a discounted price of $79.99. The … Continue Reading

Colorado Court Sends Shepherds’ Wage-Fixing Antitrust Suit Out to Pasture

Defendants in a putative class action lawsuit alleging wage fixing antitrust claims no longer need to count sheep to rest easily. A district court judge in Colorado recently denied plaintiffs’ request for leave to amend, effectively dismissing claims brought by a group of shepherds working under the H-2A Visa Program, which covers agricultural guest workers. … Continue Reading

Recent Decisions Clarify (Un)Enforceability of Class Action Waivers in Employment Agreements

Companies looking to waive class action rights of employees may instead be waving goodbye to provisions in their employment contracts. Two recent decisions in California—one administrative and one in the 9th Circuit—recently found that class action waivers in employment contracts were unenforceable as a matter of law and public policy, resulting in the removal of … Continue Reading

Case Halted: California Court Denies Class Certification in Ford Defective Steering Case

On December 22, 2016, a federal District Court Judge in the Northern District of California denied certification of three proposed classes of statewide consumers who purchased or leased certain Ford Fusion or Ford Focus vehicles. The plaintiffs allege that their vehicles contain defective Electronic Power Assisted Steering (“EPAS”) systems prone to sudden and premature failure … Continue Reading

Courts Split on Standing Issues in FCRA Suits After Spokeo

On October 5, 2016, two district courts came to opposite conclusions on whether putative class action plaintiffs had standing to bring claims based on prospective employers’ failure to comply with Fair Credit Reporting Act (FCRA) disclosure requirements. Standing under Article III of the Constitution requires (1) an injury in fact (2) fairly traceable to the … Continue Reading

Taming the Bull Rider: Chancery Court Reining in Mootness Fee Awards in Merger Litigation

Last month, the Delaware Chancery Court drastically reduced – from $275,000 to $50,000 – a mootness fee award requested by plaintiffs’ counsel in a lawsuit challenging the merger between PayPal and Xoom Corporation, finding the supplemental disclosures that flowed from the lawsuit provided only minor benefits to stockholders. In re Xoom Corp. Stockholder Litigation. The steep … Continue Reading

NY Court Of Appeals Rejects No-Opt Out Class Action Settlement In Shareholder Litigation

In Jinnaras v. Alfant, decided on May 5, 2016, the New York Court of Appeals rejected a proposed settlement of a shareholder class action, where the proposed settlement would have deprived out-of-state class members of a “cognizable property interest” by failing to provide a mechanism for class members residing outside of New York to opt … Continue Reading

Supreme Court Reinforces Strict Rule On Citizenship of Unincorporated Entities for Diversity Jurisdiction to the Detriment of Publicly-Traded REITs

Article III of the U.S. Constitution extends the jurisdiction of federal courts to “[c]ontroversies … between Citizens of different States.” U.S. Const. art. III, § 2, cl. 1. “This rule is easy enough to apply to humans, but can become metaphysical when applied to legal entities.” Americold Realty Trust v. ConAgra Foods, Inc.… Continue Reading

Market Definition Failure Dooms Golf Caddies’ Antitrust Class Action Against PGA Tour

An antitrust class action lawsuit brought by golf caddies against the Professional Golf Association will not be afforded a mulligan after a federal district court dismissed their complaint with prejudice. A putative class of similarly-situated golf caddies sued PGA Tour, Inc. over the “bibs” that caddies wear during Tour-sponsored golf tournaments. Plaintiffs alleged that, by … Continue Reading
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