Life has its disappointments. Sometimes, you think you’ve won a free car, but it turns out that you’ve won only a couple of dollars. And sometimes, you think that an appellate court will clarify a thorny issue of class-action law, but the court leaves that issue unresolved. These scenarios coalesced in a recent decision from the North Carolina Supreme Court: Surgeon v. TKO Shelby, LLC. The Surgeon case arose when hundreds of people allegedly suffered the first disappointment above. A car dealership mailed out flyers that advertised a scratch-off contest. According to the plaintiffs, on every f ..read more

One of the key issues at class certification is whether plaintiffs have met their burden to establish commonality and predominance: that “questions of law or fact common to class members predominate over any questions affecting only individual members,” as required by Fed. R. Civ. P. 23(b)(3). Plaintiffs often rely on an expert model purporting to show that injury and damages can be determined classwide, so those issues do not defeat predominance. A recent series of cases, most involving the insurance value of cars totaled in accidents, provide a useful reminder that, when a trial court review ..read more

Our colleague Erik Zimmerman reported in an earlier post the memorable declaration from defense counsel in TransUnion, LLC v. Ramirez, 594 U.S. 413 (2021): when a legal violation results in no harm, those involved should “break out the champagne,” not “break out a lawsuit.” In TransUnion, decided in 2021, the Supreme Court grappled with a question that has vexed federal courts in recent years: how much leeway should plaintiffs have to bring federal suits based on “intangible harms”? Article III courts have been redressing obvious harms to person and pocketbook since the founding. But can the c ..read more

In general, a litigant cannot sue for another person’s injury. In that circumstance, the litigant has no “standing” to pursue those claims. But Rule 23 — at least in a broad sense — allows a class representative to assert claims for her own injuries and for the injuries experienced by others, at least if the class representative’s claim is “typical” and there are “common questions” at issue. Analytically, these are different concepts. Standing, at least in federal courts, relates to a court’s constitutional jurisdiction, is most often determined at the outset of a case, and is reviewable de no ..read more

On Aug. 18, the United States Court of Appeals for the Fourth Circuit issued an opinion in the long-running Marriott Data Breach MDL Litigation. The Fourth Circuit reversed a district court’s class certification decision, holding that the district court erred in certifying damages classes against the Marriott defendants without first addressing, as a threshold issue, the potential enforceability of a “class-action waiver” that could be applicable to all members of the putative class. The Court of Appeals also reversed the district court’s certification of issue classes against Marriott’s co-de ..read more

Think about the last class-action notice that you received. You might have thought, “This is sweet. I didn’t know anything was wrong with my dog food, but I can get $50 if I just fill out this form.” There is a reason that we receive these mailings without having made a claim or knowing that anything is wrong: federal district courts routinely certify classes that include future claimants. In a recent decision, however, a federal appellate court concluded that, in the notable circumstances of that case, the law barred certification of a class of future claimants. What circumstances prompted ..read more

Limiting exposure to future claims is a crucial aspect of settling class action litigation. A recent opinion out of the Northern District of Georgia serves as a reminder that the definitions of settlement classes and released claims in class action settlement agreements warrant close attention. First, the background. In 2015, a customer filed a putative class action against LGE Community Credit Union, alleging that LGE improperly assessed overdraft fees based on accounts’ available balances instead of customers’ ledger balances, in violation of LGE’s standard member agreements. The customer al ..read more

Since March of this year, at least four purported class action lawsuits have been filed against universities, their affiliated athletic organizations, and the alleged operators of their athletic team websites, Sidearm Sports LLC and Learfield Communications LLC. These cases allege that websites using Meta (Facebook) Pixel and other technology to monitor website traffic or activity violate the federal Video Privacy Protection Act and state and federal wiretapping statutes. An uptick of class action litigation under the VPPA began in 2022 with cases brought against a wide range of businesses, in ..read more

Last month, the D.C. Circuit deepened a circuit split on the issue of fail-safe classes. The decision, In re White, 64 F.4th 302 (D.C. Cir. 2023), rejected a categorical rule against all fail-safe classes in favor of a case-by-case approach rooted in the text of the federal rules. With this ruling, the D.C. Circuit called for a return to the fundamentals of Rule 23 in the analysis of fail-safe classes. A fail-safe class is one in which membership can’t be determined until the case is resolved on the merits. Whether someone qualifies as a member of a fail-safe class depends on whether they have ..read more

Statutes defining minimum damages per violation, such as many consumer protection laws, often inspire class actions. Plaintiffs argue that certification of such classes is easier because they avoid issues of individualized damages. But in the aggregate, these damages can become immense. As a recent case from the Ninth Circuit shows, however, the Constitution places outer limits on the damages available in these class actions. Due Process Limits on Aggregate Statutory Damages Wakefield v. ViSalus, Inc., 51 F.4th 1109 (9th Cir. 2022) involved a class action under the Telephone Consumer Protectio ..read more