Two years ago, in Johnson v. NPAS Solutions, LLC, the Eleventh Circuit upended decades’ worth of precedent by categorically forbidding incentive payments to class representatives in class action settlements. In the past month, however, the Second and Ninth Circuits have rejected the Eleventh Circuit’s NPAS decision, concluding that there is no automatic bar of incentive awards to lead plaintiffs in class actions. This clear circuit split could prompt the Supreme Court to intervene. How did we get here? Let’s back up. Followers of class action jurisprudence may recall the 11th Circuit’s Septemb ..read more

Biometric class actions have proliferated in recent years — and with more states eyeing comprehensive data privacy legislation, companies that use biometric data should plan for the surge to grow. With rare exceptions, these cases end either in settlement or via a successful dispositive motion. In this post, we will discuss some of the trends we have observed from reviewing 15 settlements of class actions brought under Illinois’s Biometric Information Privacy Act (BIPA), 740 Ill. Comp. Stat. Ann. 40 et seq. (Illinois is currently the only state that authorizes a private right of action for vio ..read more

In Gloria Baker, et al. v. Raymond James & Associates Inc., et al., the Mississippi Supreme Court on March 4 reinstated a trial court ruling that Mississippi’s latent-injury discovery-rule exception to the catch-all, three-year limitations period did not apply where the lay plaintiffs, though inexperienced and unsophisticated investors, received monthly account statements showing “substantial losses” on their managed retirement investments. Bradley was part of the team that assisted Raymond James in this signal victory. The plaintiffs filed suit in 2017, alleging, among other things, a neg ..read more

In a decision that narrows the path to class certification in federal court, the Fifth Circuit has held that a plaintiff must clear the Daubert hurdle when expert evidence is relevant to the decision of a federal court to certify a class. The decision in Prantil v. Arkema Inc. cements the Fifth Circuit’s viewpoint that applying Daubert at the certification stage is required in order to ensure a proposed class’s conformity with Rule 23. The Fifth Circuit noted that this adoption is a natural extension of recent Supreme Court precedent in Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behre ..read more

Can a plaintiff represent a class without showing that there’s a feasible way to identify the absent class members? In its recent decision in Cherry v. Dometic Corp., the Eleventh Circuit has become the latest circuit to answer that question with a “maybe.” Although the court noted that the “feasibility” of identifying absent class members was relevant to the “superiority” and “manageability” considerations of Rule 23(b)(3), the court rejected the argument that proving that absent class members could be identified in an “administratively feasible” manner was a prerequisite to class certificati ..read more

The Ninth Circuit recently determined that the mere presence of artificial trans fats in popcorn (i.e., the “butter” in butter flavored popcorn) does not create an injury that confers Article III standing. In McGee v. S-L Snacks National, a consumer brought a putative class action alleging economic and physical injuries caused by the inclusion of artificial trans fats as an ingredient in Pop Secret. The plaintiff alleged that she purchased Pop Secret at least once every two to three months over the past decade, assuming it contained only “heart-healthy” ingredients. According to the plaintiff ..read more

The 11th Circuit recently addressed the issue of competing or overlapping class actions, which often create problems for both the plaintiffs’ counsel and the defense. In Medical and Chiropractic Clinic, Inc. v. Oppenheim, the 11th Circuit clarified what duties class counsel owes to class representatives and the correct forum for asserting challenges by competing class counsel. Oppenheim is part of a series of class actions that related to the Tampa Bay Buccaneers’ advertising practices. In brief, the AW Firm filed the original Cin-Q class action, but mediation stalled because one of their lead ..read more

In a decision that narrows the path to federal court for plaintiffs seeking statutory damages with no actual harm, the full 11th Circuit has held that a plaintiff must plead a concrete injury to bring a claim based on an increased risk of identity theft. The en banc decision in Muransky v. Godiva Chocolatier, Inc. reverses a previous panel decision that upheld a class action settlement involving claims under the Fair and Accurate Credit Transaction Act (FACTA). We discussed that decision on this blog last year. As we noted in our discussion of the panel opinion in Muransky, the plaintiff claim ..read more

The Paycheck Protection Program (PPP) of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which was expanded by the Paycheck Protection & Health Care Enhancement Act, provides more than $650 billion in loans for small businesses affected by the coronavirus pandemic. It includes fees for banks that make PPP loans to borrowers. But four recent cases (of more than 50 pending nationally) hold that the CARES Act does not require the banks to share those fees with accounting firms or other “agents” who helped clients apply for the loans. Because the CARES Act and its reg ..read more

You need to read Johnson v. NPAS Solutions, LLC. This recent decision from the 11th Circuit fundamentally changes the rules of obtaining approval for class action settlements. Johnson’s introduction emphasizes that the 11th Circuit is shaking up the way class actions are settled and that the court knows it: “The class-action settlement that underlies this appeal is just like so many others that have come before it. And in a way, that’s exactly the problem. We find that, in approving the settlement here, the district court repeated several errors that, while clear to us, have become commonplace ..read more