Category Archives: Class Certification

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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 … 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 … 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 … Continue Reading

Another Blow to Call Recording Class Actions

Back in February, the California Court of Appeal in Hataishi v. First American Home Buyers Protection Corp., 223 Cal. App. 4th 1454 (Feb. 21, 2014), dealt a significant blow to call recording class actions across California.  The Court held that plaintiffs asserting claims under California Penal Code section 632 (“Section 632”) had to establish that … Continue Reading

Faulty Damages Model Leads to Partial Decertification

On November 6, 2014, U.S. District Court Judge Lucy Koh of the U.S. District Court for the Northern District of California granted in part defendant Dole’s motion for decertification in Brazil v. Dole Packaged Foods, LLC.  In May of 2014, the court had granted certification of classes under both Federal Rule of Civil Procedure 23(b)(2) … Continue Reading

Tea Manufacturer Defeats Damages – Seeking Class Action Plaintiff in an Opinion Steeped in Comcast

In Lanovaz v. Twinings North America, Inc., 2014 WL 1652338, Case No. C-12-02646-RMW (N.D. Cal. April 24, 2014), the court granted-in-part and denied-in-part a motion for class certification in a false advertising case about tea labels.  The plaintiff alleged that the defendant’s tea was “misbranded” because it advertised the tea as a “Natural Source of … Continue Reading

J.M. Smucker Company Gets Out of a Jam in Food Labelling Case

On April 15, 2014, in the case Caldera v. The J.M. Smucker Co., CV 12-4936-GHK, J.M. (C.D. Cal.), Smucker Company (“Defendant”) defeated the plaintiff’s motion for class certification in a case challenging the labels on Defendant’s Crisco shortening and Uncrustables food products.  The lawsuit claimed that Defendant had mislabeled its Crisco shortening with false claims … Continue Reading

A (POM) Wonderful Result For Consumer Class Action Defendants

On March 25, 2014, the court in In re: POM Wonderful LLC Marketing and Sales Practices Litigation, Case No. ML 10-02199 DDP (C.D. Cal.), granted a motion by defendant POM Wonderful LLC (“POM”) to decertify a previously certified class of consumers who purchased certain POM juice products.  The court granted POM’s motion because plaintiff failed … Continue Reading

Comity and Commonality: A Tale of Two Identical Class Actions Brought By Forum-Shopping Plaintiffs’ Counsel

In Murray v. Sears, Roebuck and Co., No. C 09-5744, 2014 WL 563264 (N.D. Cal. Feb. 12, 2014), the U.S. District Court for the Northern District of California denied a motion for class certification that was practically identical to a motion brought in the U.S. District Court for the Northern District of Illinois that was … Continue Reading

Ninth Circuit Concludes That Common Issues Do Not Predominate Where Retailer’s In-Store Signs and Oral Sales Statements Place Each Putative Class Member’s Exposure to Misleading Statements in Doubt

In Berger v. Home Depot USA, Inc., Case No. 11-55592, 2014 U.S. App. LEXIS 2059 (9th Cir. Feb. 3, 2014), the Ninth Circuit Court of Appeals affirmed the denial of class certification based largely on evidence that the defendant’s point-of-sale signs and oral statements supplied allegedly withheld information.  A proposed class lacks the requisite cohesion … Continue Reading

Suits Brought by State AGs Alone Not “Mass Actions”: SCOTUS Sides With 4th, 7th, and 9th Circuits in Clarifying CAFA’s Mass Action Requirements

In Mississippi ex rel. Hood v. AU Optronics Corp., No. 12-1036, 2014 U.S. LEXIS 645 (Jan. 14, 2014) the Supreme Court of the United States addressed the circuit split that arose after the 5th Circuit Court of Appeal’s holding in Louisiana ex rel. Caldwell v. Allstate Ins. Co., 536 F.3d 418 (5th Cir. 2008) that … Continue Reading

Fifth Circuit Holds That Securities Fraud Defendants May Not Rebut the Fraud-on-the-Market Presumption at the Class Certification Stage Through Evidence of No Price Impact

In Erica P. John Fund, Inc. v. Halliburton Co., No. 12-10544, 2013 WL 1809760 (5th Cir. Apr. 30, 2013), the United States Court of Appeals for the Fifth Circuit held that a defendant in a securities fraud class action is not entitled to rebut the fraud-on-the-market presumption of reliance at the class certification stage by … Continue Reading

United States Supreme Court Holds that Class Action Securities Fraud Plaintiffs Need Not Prove the Materiality of the Alleged False Statements or Omissions to Support Certification of a Class, Resolving Circuit Split

In Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, No. 11-1085, 2013 WL 691001 (U.S. Feb. 27, 2013), the United States Supreme Court affirmed the decision of the United States Court of Appeals for the Ninth Circuit holding that a securities fraud plaintiff need not prove that the alleged false statements made by defendants … Continue Reading

Making Meyer Lemonade Out Of Meyer Lemons: Ninth Circuit Affirms Provisional Class Certification and Injunction in TCPA Case

In Meyer v. Portfolio Recovery Associates (Oct. 12, 2012), the Ninth Circuit affirmed the Southern District of California’s decision to provisionally certify a class and grant a preliminary injunction against Portfolio Recovery Associates (“PRA”), a debt collector alleged to be in violation of the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, by … Continue Reading

The Ninth Circuit Holds That The TCPA Prohibits Automated Calls Even When They Do Not Refer To Any Specific Good Or Service

In Chesbro v. Best Buy Stores, LP, No. 11-35784, 2012 WL 4902839 (9th Cir. Oct. 17, 2012), the Ninth Circuit reversed the Western District of Washington’s grant of summary judgment in favor of Best Buy Stores, LP (“Best Buy”) on claims that Best Buy placed automated telephone calls to plaintiff Michael Chesbro’s home in violation … Continue Reading

California Court of Appeal Holds Defendant Did Not Waive Its Right To Compel Arbitration By Waiting Until After Class Certification Where Other Class Members–But Not Plaintiff–Had Agreed To Arbitrate

In Sky Sports, Inc. v. Superior Court, (2nd Dist., Div. 3, Dec. 15, 2011) Case No. B233820, the California Court of Appeal held that a defendant does not waive its right to compel arbitration of a class action by waiting to file a motion to compel arbitration until the class has been certified, where some … Continue Reading

California Court of Appeal Clarifies Breach of Warranty Law in Class Actions and Vacates Order Certifying Class of Consumers in American Honda Motor Company, Inc. v. Superior Court

In American Honda Motor Company, Inc. v. Superior Court of Los Angeles County, 199 Cal. App. 4th 1367 (2011), the California Court of Appeal for the Second Appellate District clarified that, under California law, a party moving for class certification in a breach of warranty action must provide “substantial evidence of a defect that is … Continue Reading

Using a Rule 12(f) Motion to Strike Class Allegations in the Ninth Circuit: The Aftermath of Whittlestone

Last year, the Ninth Circuit curtailed the use of Rule 12(f) motions to strike in a case of first impression called Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 2010). The narrow holding of Whittlestone is that “Rule 12(f) does not authorize district courts to strike claims for damages on the ground that … Continue Reading

California Court of Appeal Continues the Trend of Limiting Tobacco II

The California Court of Appeal for the Fourth Appellate District recently added to the growing jurisprudence interpreting the scope and effect of In re Tobacco II Cases (2009) 46 Cal.4th 298 in its decision last month in Sevidal v. Target Corp. (Case No. D056206, Oct. 29, 2010) __ Cal.App.4th __.  Following a trend of other … Continue Reading

Eighth Circuit Denies Class Certification of UCL Cause of Action Despite Tobacco II’s Holding

In Avritt v. Reliastar Life Ins., __ F.3d__ (8th Circ. 8-12-2010), the Eighth Circuit Court of Appeal affirmed an order denying class certification of a putative class of California annuity investors who were allegedly misled by the defendant. The opinion re-affirms the federal rules that require the plaintiff to show that it can prove reliance and … Continue Reading

Second Circuit Court of Appeals Finds Arbitration Provision Waiving Class Actions Unenforceable And Applies Stolt-Nielsen to Deny Class Arbitration

On July 12, 2010, the United States Court of Appeals for the Second Circuit held an arbitration provision barring class actions unenforceable because the provision was unconscionable under California law. Then, citing the recent decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010), the Second Circuit affirmed the denial of the defendants’ … Continue Reading
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