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

Category Archives: Class Action

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District Court Takes Judicial Notice of SEC Order in Denying Motion to Dismiss Shareholder Claims

In our previous post, Under Armour Inc. Pulls Sales Forward, SEC and Stockholders Push Back, we discussed Under Armour Inc.’s recent settlement with the SEC, under which Under Armour agreed to pay $9 million for alleged violations of federal securities laws. While that settlement marked the end of a two year investigation into Under Armour’s “pull forward” … Continue Reading

Circuit Split Deepens as Eleventh Circuit Holds Administrative Feasibility is Not a Requirement for Class Certification

On February 2, 2021, the Eleventh Circuit reversed the district court’s denial of class certification for failure to prove an administratively feasible method to identify absent class members. The Eleventh Circuit’s rejection of administrative feasibility as a prerequisite to certification under Federal Rule of Civil Procedure 23 has deepened a circuit split on the issue.… Continue Reading

Circuit Split Deepens as Eleventh Circuit Rejects “Risk of Identity Theft” Theory of Standing in Data Breach Suit

On February 4, 2021, the Eleventh Circuit affirmed the dismissal of a customer’s proposed class action lawsuit against a Florida-based fast-food chain, PDQ, over a data breach. The three-judge panel rejected the argument that an increased risk of identity theft was a concrete injury sufficient to confer Article III standing, deepening a circuit split on … Continue Reading

Do All Class Members Have Standing For Mere Statutory Violations? The Supreme Court Will Decide

On March 30, the Supreme Court will hear arguments on whether a damages class action, is permitted by Article III of the Constitution or Rule 23 of the Federal Rules of Civil Procedure where the majority of the class has suffered no actual injury. Notably, this is the first time the Supreme Court will apply … Continue Reading

Shareholder Seeks Second Look At Company Data Security Practices

On November 25, 2020, a shareholder of First American Financial Corporation (“First American”) filed suit against the company and its officers and directors over a massive data security breach that exposed hundreds of millions of sensitive customer records. The shareholder derivative action, filed by Norman Hollett in Delaware federal court, alleges breaches of fiduciary duties, unjust … Continue Reading

Is Your Class Action Settlement Reasonable? A Look Inside the Court’s Approval of the Yahoo! Data Breach Settlement May Shed Some Light

A federal court recently issued a decision approving a class action settlement resolving litigation stemming from five Yahoo! data breaches that occurred from 2012 to 2016 and affected at least 194 million Yahoo! customers. The company agreed to establish a $117.5 million settlement fund and institute numerous business practice changes designed to prevent future data … Continue Reading

Private Plaintiff and Class Action Price Gouging Claims Spread as Emergency Continues

Private plaintiffs and state enforcers have been targeting businesses up and down the supply chain for price gouging violations. Some of these actions have been over the price of goods long associated with the COVID-19 pandemic, such as toilet paper and medical supplies. Yet others, such as a dispute in which a California winery has … Continue Reading

Sixth Circuit Tips the Scale in Split Over What Constitutes an Autodialer Under the TCPA

The Sixth Circuit has joined the Second and Ninth Circuits in their broad interpretation of the Telephone Consumer Protection Act’s (TCPA) autodialer provision. In doing so, it has tipped the scale in a circuit split that is ripe for review by the U.S. Supreme Court.… Continue Reading

District Court Affirms Order Requiring Production of Cyber-Investigation Report after Considering Totality of Circumstances

As we previously reported, the Magistrate Judge in In re: Capital One Customer Data Security Breach Litigation, found that a forensic report that Capital One had claimed was protected by the privilege and work product doctrines needed to be produced because Capital One had not met its burden under the dual-purpose doctrine to show that … Continue Reading

Price Gouging and Services: Third-Party Food Delivery Price Gouging?

As new restrictions addressing the economic impacts of COVID-19 continue to be proposed, some are targeting price increases for services. Businesses may want to re-familiarize themselves with the “services” covered by existing price gouging laws and pay close attention to developments, as they may cover unexpected areas.… Continue Reading

Can You Sue for Price Gouging?

State Attorneys General are not the only ones enforcing price gouging laws in the current pandemic. Many states also provide a private right of action for victims of price gouging. Depending on the state, private litigants may seek injunctions, civil penalties, or even damages under state price gouging statutes and consumer protection laws. These remedies, … Continue Reading

Jeep Drivers’ Claims Come to a Screeching Halt: Hypothetical Hacking Threat Does Not Confer Article III Standing

On March 27, 2020, a five-year legal battle between three certified classes of Jeep Cherokee drivers and Fiat Chrysler came to a sudden end, when a federal judge in the Southern District of Illinois held that allegations that the vehicles were vulnerable to cyber-attacks did not give plaintiffs standing to sue under Article III of … Continue Reading

Ninth Circuit Decision Has Significant Implications for Terms and Conditions in Smartphone Apps

A recent Ninth Circuit decision centered on something most consumers use many times every day: smartphone apps. In Wilson v. Huuuge, Inc., the Ninth Circuit affirmed the denial of defendant Huuuge’s motion to compel arbitration against a user of its smartphone casino app. Addressing a question of first impression, the Court considered the circumstances under … Continue Reading

Attacking Class Certification on a Motion to Dismiss? A Recent Decision Says There is a Way

Plaintiffs often try to define the broadest possible class at the outset of a case on the belief that the scope of the class can be refined on class certification after discovery has been completed. For this strategy to work, however, plaintiffs must get past the pleading stage. Historically, this has not been too difficult … Continue Reading

Will Settling Class Actions Get More Difficult in 2019?

Consumer advocates, defense attorneys, tort reformists, and trial judges are all eagerly awaiting a decision by the Ninth Circuit which all hope will clarify the process for certifying a nationwide settlement class in the Ninth Circuit. Specifically, an en banc Ninth Circuit panel will decide whether “variations in state law can defeat” predominance in class … Continue Reading

Coupon Settlements: Discount or Discontent?

Congress passed the Class Action Fairness Act of 2005 (“CAFA”) with the hope of preventing abuse in class action lawsuits. CAFA assigns jurisdiction to federal courts over class actions where: (i) the aggregate amount in controversy exceeds five million dollars ($5,000,000); (ii) the class comprises at least 100 plaintiffs; and (iii) there is at least … Continue Reading

Supreme Court Takes its Toll: Holds that Statute of Limitations for State Claims Stops While in Federal Court

On January 22, 2017, the U.S. Supreme Court issued its first 5-4 merits decision of the term in Artis v. District of Columbia. In this opinion, the Court held that bringing state claims in federal court stops the clock on the statute of limitations for those claims. Under 28 U.S.C. § 1367, federal courts may … Continue Reading

A Shot in the Arm: Second Circuit Holds Flu Shot Text Messages Didn’t Violate TCPA

Earlier this month, the Second Circuit ruled that Mount Sinai Health System did not violate the Telephone Consumer Protection Act (TCPA) when it sent automated flu shot text message reminders to patients. The three-judge panel in Latner v. Mount Sinai Health Systems, Inc. affirmed the dismissal of the putative class action, finding that the lead … Continue Reading

Alibaba Securities Class Action Reinstated

The Second Circuit recently revived a putative securities class action against Alibaba Group Holding Ltd. and four of its top executives for alleged material misrepresentations in connection with the company’s $25 billion initial public offering in September 2014 – the largest in U.S. history. Chief Judge Colleen McMahon of the U.S. District Court for the … Continue Reading

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
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