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

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 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

The Ninth Circuit recently issued its long-awaited opinion in Robins v. Spokeo, Inc., — F.3d —-, 2017 WL 3480695 (9th Cir. Aug. 15, 2017), on remand from the United States Supreme Court. Once again, the Ninth Circuit reversed the district court’s dismissal of plaintiff’s lawsuit alleging willful violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”), holding plaintiff’s alleged injuries were sufficiently “concrete” to satisfy Article III standing requirements. This most recent Spokeo decision (a/k/a Spokeo III) is the latest in a series of appellate decisions during the last year that have determined whether, and under what, circumstances a defendant’s alleged violation of a federal statute, without more, may satisfy Article III’s “injury-in-fact” requirement.
Continue Reading Spokeo—Round 3: The Ninth Circuit Finds Alleged Statutory Violation Sufficiently “Concrete” To Satisfy Article III Standing

In Resh v. China Agritech, No. 15-5543, 2017 U.S. App. LEXIS 9029 (9th Cir. May 24, 2017), a Ninth Circuit panel held that a pending putative class action in which class certification is ultimately denied tolls the statute of limitations as to claims that previously absent class members later seek to assert as class claims. The ruling expands a tolling doctrine the U.S. Supreme Court has so far only applied to absent class members’ individual claims. See American Pipe & Construction Co v. Utah, 414 U.S. 538 (1974). It also clarifies Ninth Circuit precedent, which, to the extent it had previously applied American Pipe tolling to absent class members’ class claims, arguably did so only when the earlier class certification denial rested on the named plaintiff’s inadequacy, not on the invalidity of the alleged class itself. Resh applies American Pipe to class claims without qualification. Hence, it opens the door in the Ninth Circuit to new phenomenon: successive class actions based on the same underlying event.
Continue Reading If At First You Don’t Succeed: The Ninth Circuit Invites Successive Class Actions By Extending American Pipe Tolling To Absent Class Members’ Own Class Claims