Reversing itself in a 7-4 en banc decision, the Ninth Circuit reinstated a $210 million settlement in multidistrict class action litigation over the advertised fuel efficiency of Hyundai and Kia vehicles, making approval of nationwide class action settlements easier. In re Hyundai and Kia Fuel Economy Litigation, 2019 U.S. App. LEXIS 17047 at *5 (9th Cir. 2019). In its decision, the Ninth Circuit applied a lower standard to Rule 23(b)(3) predominance analysis in the settlement context—as opposed to a contested class certification motion—for issues of choice-of-law and reliance under state consumer protection statutes. Judge Ikuta argues in dissent that this may not be consistent with controlling Supreme Court precedent, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). Continue Reading
Earlier this week, a Second Circuit panel resolved a sharp disagreement among district courts regarding the interpretation of the forum defendant rule in the context of a multi-district litigation (“MDL”) involving dozens of product liability lawsuits against the makers of the blood-thinning medication Eliquis.
In Gibbons v. Bristol-Myers Squibb Co., ___ F.3d ___, 2019 WL 1339013 (2d Cir. March 26, 2019), the court unanimously affirmed the district court’s holding that 33 cases were properly removed to federal court and that the claims were impliedly preempted by FDA labeling rules. Continue Reading
The Ninth Circuit’s recent decision in Sonner v. Schwabe N. Am., Inc. et al., resolves a split among district courts evaluating the standard that applies to false labeling claims brought under California’s Unfair Competition Law and Consumers Legal Remedies Act on summary judgment. The Ninth Circuit confirmed that plaintiffs can survive summary judgment by supplying a conflicting expert report, invalidating a line of cases that required plaintiff’s expert to also entirely undermine defendant’s expert. Continue Reading
This article originally appeared in the Los Angeles Daily Journal and San Francisco Daily Journal on November 28, 2018.
The Northern District of California comprehensively updated its Procedural Guidance for Class Action Settlements on Nov. 1, 2018, requiring increased disclosures for preliminary and final settlement approvals, and more transparency in post-distribution accounting. Failure to follow the guidance may result in delay or denial of settlement approval. Federal class action lawyers should be aware of the updated settlement approval rules in the Northern District of California, one of the busiest and most influential districts for class action litigation. Continue Reading
Following the denial of a petition for rehearing en banc, over a spirited dissent, a Ninth Circuit panel issued its amended order on November 27, 2018 in Sali v. Corona Regional Medical Center, holding that evidence need not be admissible to be considered at the class certification stage. The panel held: “Inadmissibility alone is not a proper basis to reject evidence in support of class certification.” Continue Reading
On Tuesday, the Supreme Court decided to review a case that potentially carries far reaching ramifications for litigation under the Telephone Consumer Protection Act (“TCPA”), which places restrictions on phone and fax solicitations and imposes serious penalties for violations. See 47 U.S.C. § 227, et seq. By granting certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., No. 17-1705, the Court is set to resolve the question whether the Hobbs Act requires district courts to accept the FCC’s interpretation of the TCPA’s key statutory term “advertisement.” Continue Reading
Class action plaintiffs’ attorneys may argue that a recent ruling by the Ninth Circuit expands the scope of liability under the Telephone Consumer Protection Act (“TCPA”) to include calls or text messages sent on all modern telephone equipment, including personal smartphones. Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. Sept. 20, 2018).
In Durnford v. MusclePharm Corp., plaintiff Durnford asserted that the company’s “Arnold Schwarzenegger Series Iron Mass” supplements are falsely labeled because the protein content of the supplements is misstated. Durnford brought claims under California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”) Consumer Legal Remedies Act (“CLRA”) and for breach of express warranty. The district court dismissed these claims, finding them preempted by federal law. However, the Ninth Circuit affirmed in part and reversed in part the district court’s dismissal of Durnford’s claims effectively reviving them, albeit on a narrower basis. Durnford v. MusclePharm Corp., No. 16-15374, __ F.3d __ (9th Cir. 2018), 2018 U.S. App. LEXIS 28771. Continue Reading
Companies may be inclined to offer “coupons” or similar benefits to settle consumer class actions. While offering coupons is permissible, in In re Easysaver Rewards Litigation, No. 16-56307, 2018 U.S. App. LEXIS 28000 (9th Cir. Oct. 3, 2018), the Ninth Circuit has reaffirmed that the full face value of coupons cannot be included when calculating the total value of the settlement, which may reduce the attorneys’ fees awarded to Plaintiffs’ class counsel. Continue Reading
In a recent decision, the California Court of Appeal reaffirmed and clarified how the “reasonable consumer” standard must be applied at the pleadings stage to mislabeling claims. In simplest terms, if the packaging makes a definitive statement on the front that suggests one thing, but fine print on the back contradicts that statement, the defendant cannot rely on the fine print to escape a mislabeling claim. In reaching that conclusion, however, the Court of Appeal appears to have laid a roadmap for how to defeat class certification. Continue Reading