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Anna McLean

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Anna McLean is a partner in the Business Trial Practice Group. She is a Leader of the firm’s Class Action Defense Team.

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On January 24, 2025, the Supreme Court granted certiorari in Laboratory Corp. of America v. Davis, No. 24-0304, which may result in the resolution of a long-standing circuit split on a dispute key to class certification. In its petition for writ of certiorari, petitioner Labcorp sought Supreme Court review of an issue that has divided federal circuit courts: what should courts do when a putative class contains numerous members who lack any Article III injury?Continue Reading The Supreme Court Gears Up to Resolve Circuit Split on Class Injury Requirements

In Heckman v Live Nation Entertainment, Inc., No. 23-55770 (9th Cir. Oct. 28, 2024), the Ninth Circuit revisited Live Nation and Ticketmaster’s arbitration clause and class action waiver after having upheld a previous version last year. Oberstein v. Live Nation Entertainment, Inc., 60F. 4th 505 (9th Cir. 2023). Live Nation and Ticketmaster’s latest attempt to contain burgeoning consumer litigation involves an effort to curtail what is known as “mass arbitration” — the practice of plaintiff-side attorneys whose clients are bound by class action waivers to inundate defendants with many individual small-stakes consumer claims in arbitration. Ultimately, the Ninth Circuit upheld the decision by Judge George H. Wu of the Central District of California to deny Defendants’ motion to compel arbitration, finding the delegation clause as well as the arbitration procedures procedurally unconscionable “to an extreme degree,” and substantively unconscionable to a “substantial degree” under California law. At bottom, the panel pushed back on what it appears to have viewed as an attempt by Live Nation and Ticketmaster to “have their cake and eat it too” by imposing barriers to multiple arbitrations after having succeeded in precluding the most likely alternative—a class action.Continue Reading The Ninth Circuit Criticizes Mass Arbitration Models

In the world of class action lawsuits, damages calculations and whether or not prejudgment interest accrues can become high-stakes battlegrounds. These issues are highlighted in the recent Ninth Circuit decision in Montera v. Premier Nutrition Corp. FKA Joint Juice, Inc., Nos. 22-16375, 22-16622, slip op. (9th Cir. Aug. 6, 2024). The case had been appealed by both parties from the Northern District of California in one of the few class actions to go to jury trial. (N.D. Cal. Case No. 3:16-cv-06980-RS.) The plaintiff asserted that “Joint Juice” was misleadingly labeled under New York’s General Business Law (“GBL”) §§ 349 and 350 because the product did not work to improve joint function or to remediate joint pain. The jury awarded the class of consumers full refund damages totaling $1,488,078.49 based on 166,249 units of product sold. The plaintiff then sought statutory damages in the amount of $91 million. This figure was derived by adding the $50 statutory penalty for GBL § 349 violations with the $500 statutory penalty for GBL § 350 violations, multiplied by the 166,249 units sold. The plaintiff also sought prejudgment interest totaling $4,583,004.90 – again far dwarfing the amount of actual damages. The District Court ultimately reduced the award of statutory damages on due process grounds to $50 per violation for a total of $8,312,450 plus prejudgment interest, and an appeal to the Ninth Circuit followed.Continue Reading Ninth Circuit Issues Long-Awaited Montera Decision Applying New York General Business Law §§ 349 and 350, Confirming “Per Violation” Damages but Striking Prejudgment Interest

On May 16, 2024, the United States Supreme Court unanimously held that, when enforcing an arbitration clause subject to the Federal Arbitration Act (FAA), if any party requests a stay, the district court lacks discretion to dismiss the underlying lawsuit. The high court’s ruling reverses the decision of the Ninth Circuit upholding dismissal, and resolves a long-simmering circuit split. Notwithstanding the FAA’s language appearing to mandate a stay, in which several circuits held that district courts have discretion to dismiss cases (without prejudice) pending arbitration. Continue Reading Supreme Court Holds that District Courts Must Stay – Not Dismiss – Actions Brought by Parties Subject to Binding Arbitration Agreements

Several recent cases arising under the federal Food, Drug, and Cosmetic Act (“FDCA” or the “Act”), 21 U.S.C. § 301 et seq., highlight the usefulness of preemption as a defense against putative class actions concerning drugs, cosmetics, dietary supplements, medical devices, and other consumer products subject to the Act. The FDCA provides for exclusive enforcement by the FDA and has no private right of action. Implied preemption also extends to state law claims based on allegations that the defendant violated FDA regulations. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 349 n.4 (2001) (citing 21 U.S.C. §337(a)) (“The FDCA leaves no doubt that it is the Federal Government rather than private litigants who [is] authorized to file suit for noncompliance with” the FDCA’s substantive provisions). This article addresses recent federal cases supporting FDCA preemption of state law claims that require the fact finder to improperly assume the FDA’s enforcement power, particularly in the class action context. Continue Reading FDCA Preemption: A Powerful Tool for Defending Class Actions

The Ninth Circuit recently struck a blow against plaintiffs’ attorneys’ ability to recover handsome attorney’s fee awards in class action settlements when there is little actual benefit to the class. In Lowery v Rhapsody International, Inc., No. 22-15162 (9th Cir. June 7, 2023), a Ninth Circuit panel reversed the U.S. District Court for the Northern District of California’s award of $1.7 million in attorney’s fees to plaintiffs’ counsel in a copyright class action, finding that the fee award was not reasonable when compared to the class’ actual recovery of $52,841, without any injunctive relief.Continue Reading Ninth Circuit Slashes Exorbitant Attorney’s Fee Award That Would “Make the Average Person Shake Her Head in Disbelief”

In Oberstein v. Live Nation Ent. Inc. No. 21-56200 (9th Cir. Feb. 13, 2023), the Ninth Circuit addressed the question of whether the arbitration and class action waiver clauses on Ticketmaster’s and Live Nation’s websites effectively prevented plaintiffs from bringing suit. Plaintiffs in the case sought to bring a class action lawsuit against Ticketmaster and Live Nation alleging as the basis for antitrust claims that the companies used their market power to charge above-market prices for concert tickets. Ticketmaster and Live Nation sought to compel the named plaintiffs to individual arbitration under the binding arbitration and class action waiver clauses in the terms of use on Ticketmaster’s and Live Nation’s websites.Continue Reading Ninth Circuit Decision in Live Nation and Ticketmaster’s Favor Highlights Subtleties of Drafting Enforceable Arbitration Provisions

In Brice v. Haynes Investments LLC, No. 19-15707 (9th Cir. Sept. 16, 2021), the Ninth Circuit considered an appeal by shareholders in Native American tribe-linked online lenders of a district court order denying the shareholders’ motion to compel arbitration. The Ninth Circuit reversed the order because, under the terms of the parties’ agreement, the enforceability of the arbitration agreement was a question for the arbitrator, not the judge, to decide.
Continue Reading Class Action Waivers Redux: Ninth Circuit Upholds Arbitration Provision Delegating Enforceability Determination to Arbitrator

The Supreme Court further limited consumer lawsuits in TransUnion, LLC v. Ramirez, siding with credit reporting agency TransUnion in a 5-4 decision holding that thousands of consumers improperly flagged as potential terrorists do not have standing to sue the company for damages. TransUnion expands upon Spokeo, Inc. v. Robins, 2578 U.S. 330, 340 (2016) in limiting standing under the Fair Credit Reporting Act (FCRA) and Article III to plaintiffs who have suffered a concrete harm, not just the violation of a statutory right. As a practical matter, TransUnion significantly narrows plaintiffs’ ability to assert claims in federal court on behalf of broad classes without proving a concrete injury to each member.
Continue Reading Supreme Court Addresses Class Action Standing in Ramirez Case: Requires “Concrete” Injury for Article III Standing for Class Members

The U.S. Supreme Court granted certiorari on December 16, 2020 in TransUnion, LLC v. Ramirez on the question of “[w]hether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.” Ramirez will give the high court the opportunity to clarify how Article III standing requirements apply to class members in class actions.
Continue Reading Supreme Court to Address Class Action Standing in Ramirez Case: To Recover, Must Absent Class Members Establish Actual Injury?

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 Ninth Circuit Fuels More Efficient Nationwide Class Settlement