Class Certification

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Over recent years the United States Supreme Court has waded deep into the waters of class certification, significantly altering the playing field for class action claims.  As the Supreme Court continues its 2015 session, it takes on issues that may continue to alter the landscape, including (i) whether settlement with a class representative can be used to effectively terminate class claims, (ii) whether a class action can proceed even though the plaintiff representative has incurred no concrete, actual damage, and (iii) the validity of statistical modeling to substantiate alleged class-wide damages claims. 
Continue Reading Supreme Court Takes On Class Actions, Again

In Pulaski & Middleman, LLC v. Google, Inc., No. 12-16752, 2015 U.S. App. LEXIS 16723 (9th Cir. Sept. 21, 2015), a Ninth Circuit panel held that individualized damages (or restitution) calculations cannot alone defeat Rule 23(b)(3)’s predominance element. The opinion is significant because the district court below had determined that an exceedingly high degree of individualized proof would be needed to calculate each putative class member’s restitution award and plaintiffs had failed to propose a “workable method” to reduce this complexity. Notably, the panel also defined the measure of restitution in false advertising cases brought under California’s Unfair Competition Law (UCL) and False Advertising Law (FAL) in a manner that plaintiffs will likely argue expands the remedy.
Continue Reading The Ninth Circuit Declares That Individualized Damages Issues Alone Never, Ever Preclude Certification of a Rule 23(b)(3) Class

Although not explicitly stated in the text of Rule 23, for several decades courts have held that a putative class must be clearly defined and based on objective criteria as prerequisites to class certification.  Courts and commentators alike have referred to this threshold showing as the “ascertainability” requirement without a common understanding of what exactly it means for a class to be ascertainable.  During the past few years, however, certain federal courts throughout the country have begun to adopt a more rigid view of Rule 23’s implicit ascertainability requirement, which has resulted in the short-circuiting of several class actions at the certification stage.  This trend has been most prominent in the Third Circuit, which now requires plaintiffs to prove that there is a “reliable and administratively feasible” way to identify all those who fall within the class definition.  See, e.g., Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).
Continue Reading The Pitfalls of Ascertaining Ascertainability: Seventh Circuit Declines to Adopt Heightened Threshold Requirement for Class Actions

As a result of the Supreme Court’s decision in Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013), data breach class actions were largely considered dead in the water.  The overwhelming majority of courts, relying heavily on Clapper, dismiss data breach actions for the simple reason that until a consumer suffers actual identity theft, she lacks Article III standing to sue.  In other words, without actual identity theft, the risk of future harm—as well as any money spent attempting to protect against potential identity theft—is purely speculative and does not suffice to constitute a legally cognizable injury.
Continue Reading Barbarians at the Gate: Seventh Circuit Finds Article III Standing for Data Breach Class Actions

On June 23, 2015, the Ninth Circuit in Cabral v. Supple LLC, — Fed. Appx. –, 2015 WL 3855142 (9th Cir. June 23, 2015) placed a significant hurdle in the path of false advertising class actions.  Specifically, the Court held that in class actions “based upon alleged misrepresentations in advertising and the like,” in order for common questions to predominate—an essential Rule 23(b) inquiry—“it is critical that the misrepresentation in question be made to all of the class members.”
Continue Reading Ninth Circuit Reiterates that Misrepresentation Must be Made to All Class Members

July 21, 2015 Update: On July 20, 2015, the Ninth Circuit Court of Appeals denied Microsoft’s petition for rehearing en banc and amended its March 18, 2015, opinion to add a footnote supporting the conclusion that it had jurisdiction because a stipulated dismissal is an appealable judgment.  The amended opinion can be accessed here.

We recently reported on a Ninth Circuit Court of Appeals opinion reversing a district court’s decision to strike class action allegations in a putative class action against Microsoft.  Baker v. Microsoft Corp., No. 12-35946, 2015 U.S. App. LEXIS 4317 (9th Cir. Mar. 18, 2015).  In Baker v. Microsoft Corporation, the Ninth Circuit panel of judges held that proof that individual class members were damaged by an alleged defect (here, a defect in Xbox 360 video game consoles resulting in scratched game discs) was not necessary for a class action to be certified.  Id. at *20.  You can read the full article here.
Continue Reading Baker v. Microsoft Corporation Revisited: Video Gaming Company Seeks to Stop Class Action Plaintiffs From Shortcutting the Appeals Process

July 21, 2015 Update: On July 20, 2015, the Ninth Circuit Court of Appeals amended its March 18, 2015, opinion to add a footnote supporting the conclusion that it had jurisdiction because a stipulated dismissal is an appealable judgment.  The amended opinion can be accessed here.

The Ninth Circuit Court of Appeals recently reversed a district court’s decision to strike the class action allegations in Baker v. Microsoft Corp., No. 12-35946, 2015 U.S. App. LEXIS 4317 (9th Cir. Mar. 18, 2015).  In Baker, the putative class alleged that a design defect in Xbox 360 video game consoles caused the consoles to malfunction and scratch game discs – although only 0.4% of Xbox console owners reported such problems.  Id. at *1-4.  The majority opinion held that the district court should have followed an earlier Ninth Circuit decision rejecting the notion that individual manifestations of a defect preclude resolution of claims on a class-wide basis.  Id., citing Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168 (9th Cir. 2010).  “[P]roof that [a alleged design defect] caused individual damages is not necessary . . . Rather, plaintiffs’ breach of express warranty claim presents a common factual question – is there a defect? – and a common mixed question of law and fact – does that defect breach the express warranty?”  Baker, 2015 U.S. App. LEXIS 4317 at *16-17.  Notably, the Ninth Circuit’s decision only determined that the district court misapplied the law in striking the class action allegations from the complaint.  Id. at *20.  The decision expressly disclaimed any determination of whether the issues would be best decided on a class-basis or whether class certification should be granted.  Id. 
Continue Reading Baker v. Microsoft Corporation: Ninth Circuit Court of Appeals Decision in Class Action Against Video Gaming Company May Make It More Difficult to Defeat 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 California Court of Appeal Lowers the Bar on Ascertainability Requirement in Consumer Class Actions

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 Ascertainability Saps Plaintiffs’ Energy in Dietary Supplement Class Action

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