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.
Recent FDA guidance for determining and declaring the protein grams in a serving has helped muscle a class action out of federal court. …
Continue Reading FDA Boosts Protein Preemption Defense
In a resounding victory for public-private partnerships, the Fourth Circuit’s decision in Cunningham v. Lester, et al., No. 20-1086, — F.3d —- (4th Cir. Mar. 4, 2021) has affirmed federal employees’ immunity from the Telephone Consumer Protection Act (“TCPA”) when acting in furtherance of a government mandate. The TCPA imposes strict statutory penalties for unsolicited robocalls ranging from $500 to $1,500 per violation. But the Supreme Court has held the TCPA does not contain a waiver of sovereign immunity. See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166 (2016). The question presented in Cunningham was whether a plaintiff can avoid the TCPA’s sovereign-immunity shield by suing federal employees for damages in their individual capacities. The Fourth Circuit ruled that a plaintiff can do no such thing.
Continue Reading Strengthening the TCPA’s Sovereign Immunity Shield—Fourth Circuit Rules Federal Employees Are Not Liable for Government-Mandated Robocalls
*This post originally appeared as an article in the August 2020 edition of Happi Magazine.
Beauty companies face an uptick in alleged false-labeling class actions. Whether the actions are justified or vexatious, one thing is certain: they are expensive to defend. By keeping the following labeling-related litigation trends in mind when considering and reviewing product labels and marketing, beauty companies can, hopefully, avoid becoming a litigation target.
Continue Reading No Reason to Blush
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 Are credits coupons? The Ninth Circuit Says Yes in Calculating Total Value of Class Action Settlements
Deciding an issue of first impression, the California Court of Appeal issued a writ of mandate confirming that there is only one standard for the admissibility of expert opinion in California, and that standard applies when considering a motion for class certification. Apple, Inc. v. Superior Court of San Diego County, 2018 Cal. App. LEXIS 69 (Cal. Ct. App. Jan. 29, 2018). Accordingly, the Court of Appeal issued a peremptory writ of mandate directing the trial court to vacate its order granting Plaintiffs’ motion for class certification for reconsideration in light of the standards for the admission of expert testimony set forth in Sargon Enters., Inc. v. Univ. of S. Cal., 55 Cal.4th 747 (2012).
Continue Reading California Court of Appeal Confirms that There is Only One Standard for the Admission of Expert Testimony and that Expert Opinion Must Be Admissible to be Considered on a Motion for Class Certification
The Seventh Circuit’s rejection of a class action settlement in a case alleging consumer fraud against Subway for allegedly “shorting” customers of its Footlong sandwiches illustrates the pitfalls of settlements that provide only injunctive relief and the perils to plaintiffs who pursue claims for “worthless benefits.” In Re Subway Footlong Sandwich Mktg. & Sales Practices Litig., 2017 U.S. App. LEXIS 16260, at *14 (7th Cir. Aug. 25, 2017). The Seventh Circuit recognized: “[a] class action that ‘seeks only worthless benefits for the class’ and ‘yields [only] fees for class counsel’ is ‘no better than a racket’ and ‘should be dismissed out of hand.’ That’s an apt description of this case.” Id. (citation omitted). The court further warned that, “[n]o class action settlement that yields zero benefits for the class should be approved[.]” Id. at *11. …
Continue Reading Seventh Circuit Holds Footlong Settlement Falls Short
In the past few years, class action lawsuits challenging privacy practices, particularly internet privacy practices, have expanded. But, these lawsuits often challenge practices that do not cause any actual damage, which can make it difficult to reach a settlement, particularly of a Rule 23(b)(3) class. So, how can parties wanting to settle proceed?
Continue Reading Ninth Circuit Confirms that a Cy Pres Only Settlement Can Work In Privacy Class Action
As the Rolling Stones famously sing, “You can’t always get what you want.” And in the ever treacherous world of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., the Second Circuit has ruled that means a party to contract cannot unilaterally revoke consent to receive automated calls.
Continue Reading You Can’t Always Get What You Want—Second Circuit Affirms Parties Can Bargain Away TCPA Right To Revoke Consent To Automated Calls