California Court of Appeal Lowers the Bar on Ascertainability Requirement in Consumer Class Actions

In Aguirre v. Amscan Holdings, Inc., Case No. 073059, 2015 Cal. App. LEXIS 214 (Cal. Ct. App. Feb. 11, 2015), a California Court of Appeal reversed the denial of certification of a putative class alleging violation of Civil Code Section 1747.08 of California’s Song Beverly Credit Card Act.  The trial court had denied certification because the plaintiff did not show the ability to identify, locate, and notify class members.  The court of appeal rejected that standard, and found that the class was, in fact, ascertainable because (1) the class definition contained a set of “common characteristics” that would allow class members to self-identify themselves, and (2) because the plaintiff had suggested an objective method for identifying class members.  This decision clarifies the standard for ascertainability in California state court class actions. Continue Reading

Not So Small After All: CallFire Uses Common Carrier Defense to Defeat Rinky Dink TCPA Class Action Case

Last month, in Rinky Dink, Inc. v. Electronic Merchant Systems, et al., No 13-cv-01347, 2015 WL 778065 (W.D. Wash. Feb. 24, 2015), online voice and text provider CallFire became one of the first (if not the first) TCPA defendants to avoid liability for pre-recorded calls through the common carrier defense. Continue Reading

Court Finds that Class Action Plaintiffs’ False Advertising Claims are Stripped Bayer Based on Federal Preemption

In the recent case of Gallagher v. Bayer AG, Case No. 14-cv-04601-WHO (N.D. Cal. March 10, 2015), the plaintiffs asserted that the defendants Bayer AG and related entities (collectively, “Bayer”) engaged in false advertising under California, New York, and Florida law.  The products in question were 20 varieties of One-A-Day vitamins that each included advertising on their labels stating that they supported “heart health,” “immunity” and “physical energy.”  On behalf of a putative class of purchasers, the plaintiffs alleged that the statements were false, misleading, and constituted illegal advertising under state law based on the regulations of the Food & Drug Administration (the “FDA”).  Bayer moved to dismiss the complaint on multiple grounds, including the argument that the claims satisfied federal law, thereby preempting the plaintiffs’ state law claims. Continue Reading

Ascertainability Saps Plaintiffs’ Energy in Dietary Supplement Class Action

In the recent decision Mirabella v. Vital Pharmaceuticals, Inc., Case No. 12-62086-CIV-ZLOCH (S.D. Fl. Feb. 27, 2015) the plaintiffs attempted, but failed, to certify a nationwide class of all purchasers of an energy drink that allegedly caused harmful side-effects.  The plaintiffs brought claims under Florida’s consumer protection statute, known as the Deceptive and Unfair Trade Practices Act, as well as federal and common law breach of warranty claims.  The Plaintiffs sought to certify a class composed of all purchasers of the “Redline Extreme Energy Drink” (the “Product”) since 2008, a drink that retailed for approximately $3.00 per bottle. Continue Reading

The Second Circuit Holds That Comcast Does Not Require Automatic Denial of Rule 23(b)(3) Class Certification in Cases Presenting Individualized Damages Issues

In Roach v. T.L. Cannon Corp., No. 13-3070-cv, 2015 WL 528125 (2d Cir. Feb. 10, 2015), the Second Circuit Court of Appeals held that Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), does not require district courts to first find that damages are capable of classwide measurement before certifying classes under Federal Rule of Civil Procedure 23(b)(3).  Under existing Second Circuit Rule 23(b)(3) precedent, individualized damages inquiries do not automatically preclude class certification if, in the case as a whole, individual questions do not predominate over any common questions.  In Roach, the Second Circuit read Comcast as not overruling this precedent.  Roach confirms that, in the Second Circuit, individualized damages issues are not per se dispositive of Rule 23(b)(3)’s predominance test. Continue Reading

Hold the Phone: Judge Holds Dish Network on the Line for Tens of Millions of Calls, but Leaves Silver Lining for TCPA Defendants

On December 12, 2014, Judge Sue E. Myerscough issued an epic 238-page order granting in part and denying in part cross summary judgment motions filed in United States of America, et al. v. Dish Network, L.L.C. (“Dish Network”). United States v. Dish Network, L.L.C., No. 09-3073, 2014 WL 7013223 (C.D. Ill. Dec. 12, 2014). Despite finding that Dish was liable for over 50 million phone calls, there was a silver lining for both Dish and future TCPA defendants.

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It’s Not Personal: Ninth Circuit Denies Putative Class Representative’s Appeal as Moot

In Campion v. Old Republic Protection Company, Inc., No. 12-56784, (Dec. 31, 2014) the Ninth Circuit Court of Appeals held that a putative class representative’s appeal was moot because he had no personal stake in the case after voluntarily settling his individual claims.  Douglas Campion brought a class action against Old Republic asserting causes of action arising out of Old Republic’s allegedly arbitrary denial of claims made by him on a home warranty policy.  The U.S. District Court for the Southern District of California denied Campion’s motion to certify the class and granted Old Republic’s motion for partial summary judgment on Campion’s claims under the California Consumers Legal Remedies Act.  Campion then settled his individual claims with Old Republic, and the parties agreed to dismiss without prejudice any class action claims under the California Unfair Competition Law.  However, in the stipulation for dismissal, the parties agreed that Campion retained his right to appeal the district court’s rulings on the putative class claims.  Campion subsequently appealed the district court’s orders regarding class certification.

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No Proof Necessary: SCOTUS Rules Defendant’s Notice Of Removal Under CAFA Need Not Include Evidence of The Amount In Controversy

On December 15, 2014, the United States Supreme Court resolved a circuit split in holding that a defendant need not supply evidence of the amount in controversy in its notice of removal under the Class Action Fairness Act (“CAFA”).  In Dart Cherokee Basin Operating Co. v. Owens, No. 13-719, 574 U.S. __ (2014), the plaintiff, Owens, filed a putative class action in Kansas state court alleging defendants had underpaid royalties to putative class members under certain oil and gas leases.  The defendant, Dart, filed a notice of removal with the U.S. District Court for the District of Kansas pursuant to CAFA.  To establish diversity jurisdiction under CAFA, defendants must show, among other things, that the amount in controversy exceeds $5 million.

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Clear Sailing Ahead For Class Counsel in California Settlement

In Laffitte v. Robert Half International, Inc., No. BC321317, ___ Cal.App.4th ___ (Oct. 29, 2014; pub. ord. Nov. 21, 2014), the California Court of Appeal affirmed a $19,000,000 settlement that included an attorneys’ fee award of one-third the settlement amount.  Mark Lafitte filed a wage and hour class action suit against Robert Half International alleging violations of the Labor and Business and Professions Codes.  The parties settled, and the terms provided that Robert Half would pay a gross settlement amount of $19,000,000, of which class counsel’s attorneys’ fees would be no more than 6,333,333.33.  Additionally, the proposed settlement included a “clear sailing” provision assuring that Robert Half would not oppose the court’s fee award if the amount was less than or equal to the specified amount.

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Dole Defeats “All Natural Claims” for Sweet Victory

On December 8, 2014, U.S. District Court Judge Lucy Koh of the U.S. District Court for the Northern District of California granted defendant Dole’s motion for summary judgment of the plaintiff’s false labeling claims in Brazil v. Dole Packaged Foods, LLC.  The court granted summary judgment on the ground that the plaintiff had failed to present sufficient evidence that the challenged “All Natural Fruit” label was likely to mislead reasonable consumers.  As one of few summary judgment opinions in “All Natural” cases, this opinion provides valuable insight into issues that arise on the merits of such claims.

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