In a recent opinion, the United States Court of Appeals for the Sixth Circuit vacated an order certifying a class of essentially all Ohio residents claiming contact with some level of per- and polyfluoroalkyl substances (also known as PFAS) because the named plaintiff lacked standing to pursue his “ambitious” and ill-supported claims. In the process, the Sixth Circuit adopted a position urged by BakerHostetler attorneys on behalf of amicus the Ohio Chamber of Commerce. See Hardwick v. 3M Co., No. 22-3765, -‍-‍- F.4th -‍-‍-, 2023 WL 8183812 (6th Cir. Nov. 27, 2023). In March 2022 ..read more

BakerHostetler released its 2023 Q2-3 Insurance Class Action Quarterly Report, which summarizes two quarters of activity in property and casualty claims class actions. Much has occurred with respect to some traditional theories, like labor depreciation and total loss claims, but also newer theories that bear close watching are taking root in class actions against insurers. Key Issues Lots of Action in Labor Depreciation Class Actions  Total Loss Valuation Class Actions Still At Center Stage Total Loss Tax, Title, Premiums, and Diminished Value Class Actions New Decisions on New Mexico Un ..read more

A recent opinion from the United States Court of Appeals for the Fifth Circuit illustrates the importance of carefully scrutinizing classwide liability theories, even where district courts have flexibility assessing classwide damages theories. See Sampson v. United Servs. Auto. Ass’n, No. 22-30351, — F.4th —, 2023 WL 6533181 (5th Cir. Oct. 6, 2023). According to the plaintiffs in Sampson, the defendant-insurer breached their insurance contracts and underpaid the “actual cash value” of total-loss automobile insurance claims by using a third-party valuation company instead of the National Automo ..read more

BakerHostetler released its 2023 Q1 Insurance Class Action Quarterly Report, which summarizes a variety of insurance class action themes. Total loss class actions kept going around the country, and labor depreciation class actions experienced ups and downs, depending on one’s viewpoint. New class actions involving sales tax depreciation, appraisal and privacy claims for data shared with vendors made an entrance, as did additional Washington health care reimbursement rate class actions. And we saw appellate action in some previously reported class actions alleging claims based on uninsured/unde ..read more

On March 28, 2023, the Advisory Committee on Civil Rules (Committee) convened in West Palm Beach, Florida, to discuss a variety of proposed amendments to the Federal Rules of Civil Procedure, including a new rule that would provide guidance about initial case management procedures in multidistrict litigation (MDL). Appointed by the chief justice of the United States, the Committee’s membership includes federal and state judges, law professors, and practitioners from the plaintiff and defense bar as well as the federal government. The Committee is tasked with studying the federal rules and eval ..read more

Last week, the U.S. Court of Appeals for the Second Circuit issued a decision that highlights a growing disagreement among federal appellate courts as to whether class action settlements may include a cash incentive award to named plaintiffs for serving as class representatives. This deepening debate creates uncertainty as to whether incentive awards will continue to be available in many parts of the country and increases the likelihood that the Supreme Court will accept one of two pending petitions asking the Court for a ruling on this issue. The drama leading up to last week’s decision did n ..read more

BakerHostetler released its Insurance Class Action Quarterly Report for 2022 Quarter 4, devolving trends in the insurance class action space from the past quarter. We witnessed further development of total loss, uninsured/underinsured motorist and COVID-19 premium rebate class actions, along with movement in new(er) property and casualty class actions involving discrimination in claims adjusting and allegations of software errors that overestimated the size of insured spaces, leading to higher premiums. Also, class actions are appearing against insurers for violation of anti-wiretap statutes b ..read more

As predicted back in March 2022, class litigation related to per- and polyfluoroalkyl substances (PFAS) has accelerated over the past year. PFAS are a group of man-made chemicals that have been widely used in various industrial and consumer products. Companies that have manufactured, used or disposed of PFAS are facing an increasingly volatile legal landscape given the prevalence of PFAS in the environment and the growing challenges to their safety. In Kevin D. Hardwick v. 3M Company et al, for example, the plaintiff seeks to compel 10 defendant companies to fund a court-supervised ..read more

On July 13, 2022, the Florida District Court of Appeal for the Fourth District affirmed an order dismissing a putative class action filed under the federal Fair and Accurate Credit Transactions Act (FACTA) for lack of standing. Southam v. Red Wing Shoe Company, Inc., No. 4D21-3338 (July 13, 2022). FACTA provides, in part, that “except as otherwise provided in this subsection, no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the poin ..read more

The U.S. Supreme Court has agreed to consider whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction as a condition to doing business in the state. Mallory v. Norfolk S. Ry. Co., U.S. Supreme Court, No. 21-1168, granted. The plaintiff is a Virginia resident who sued the railroad, a Virginia company, in Pennsylvania state court for harm he allegedly suffered due to exposure to carcinogens while working in Ohio and Virginia. Pennsylvania has a statutory scheme, “consent-by-registration,” that requires foreign ..read more