The Third Circuit’s recent decision in Allen v. Ollie’s Bargain Outlet, Inc., — F.4th —-, 2022 WL 2284654 (3d Cir. 2022), gave close scrutiny to two elements of the class certification inquiry – numerosity and commonality – that are often deemed satisfied with little analysis, and rejected the district court’s reliance on inferences drawn
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Sixth Circuit Adds Teeth to Rule 23’s Ascertainability Requirement
The Sixth Circuit recently made it more difficult for plaintiffs to certify a class where individualized inquiries are needed to identify class members.
In Tarrify Properties LLC v. Cuyahoga County Ohio, 2022 WL 2128816 (6th Cir. June 14, 2022), the Sixth Circuit addressed a claim that Ohio’s tax-foreclosure statute operates as a taking under the…
Fudge Without Milkfat Isn’t “Fudged”
Kellogg’s defeated yet another putative class action filed by prolific litigant Spencer Sheehan alleging that one of its Pop-Tarts products misleads consumers. See Reinitz v. Kellogg Sales Co., 2022 WL 1813891 (C.D. Ill. June 2, 2022).
Asserting state law consumer fraud theories, plaintiff argued that Kellogg’s Frosted Chocolate Fudge Pop-Tarts mislead consumers because they do…
To Defeat Dismissal, Plaintiffs Win By Losing Standing
In a typical situation, defendants argue that plaintiffs lack standing and plaintiffs insist otherwise. But, sometimes, the lack of standing can work in plaintiffs’ favor. In Benton v. CVS Pharmacy, Inc., 2022 WL 1750462 (N.D. Cal. May 31, 2022), plaintiffs took the unusual step of arguing that they lacked Article III standing to bring their…
Supreme Court Hands California Employers a Significant (if Qualified) Win
By Sonya Winner
On June 15, the Supreme Court issued its decision in Viking River Cruises, Inc. v. Moriana, No. 20-1573, holding that the Federal Arbitration Act (“FAA”) requires California courts to honor agreements to arbitrate individual claims under the California Labor Private Attorneys General Act of 2004, Cal. Lab. Code § 2698 et seq. (“PAGA”). Although Viking River…
Update: Ninth Circuit Might Backtrack on When an Arbitrability-Related Question May be Delegated to an Arbitrator
Last September, we reported on a 2-1 Ninth Circuit decision holding that even if an arbitration clause appears to be unenforceable under the prospective waiver doctrine, a delegation provision requiring the arbitrator to decide that issue in the first instance is still enforceable. Brice v. Haynes Invs., LLC, 13 F.4th 823 (9th Cir. 2021). …
Plaintiffs Seek $140 Million In Statutory Damages After Trial Win
A rare class action trial that resulted in a jury verdict against a defendant may set a precedent for the amount of statutory damages that can be recovered under New York’s General Business Law (GBL) when a class action proceeds to trial. After a jury found that Joint Juice deceptively labeled its beverages and awarded…
Litigation Between FinTech Companies Follows Class Action Over Cryptocurrency Theft
This past week, co-defendants in a class action related to the theft of cryptocurrency engaged in their own lawsuit over alleged security failures. IRA Financial Trust, a retirement account provider offering crypto-assets, sued class action co-defendant Gemini Trust Company, LLC, a crypto-asset exchange owned by the Winklevoss twins, following a breach of IRA customer accounts. …
A Closer Look: Arbitration Clauses Added to Account Agreements Face Risks After Supreme Court Declines Review of Sixth Circuit’s BB&T Decision
By Amy Heath & Andrew Soukup
The Supreme Court recently declined to review the Sixth Circuit’s decision in Sevier County Schools Federal Credit Union v. Branch Banking & Trust Co., 990 F.3d 470 (6th Cir. 2021), which presents a potential challenge to enforcing arbitration clauses added to standard account agreements. The cert denial serves as a reminder that companies…
Court Allows False Advertising Claims Over Kroger’s “Smoked Gouda” to Proceed
An Illinois federal court recently ruled that a Kroger shopper’s proposed class action lawsuit over “SMOKED GOUDA” cheese could proceed, holding that plaintiff’s interpretation of the label to mean the cheese was smoked over hardwood was not “inherently fanciful or unreasonable.”
The complaint, brought by Valerie Kinman under the Illinois Consumer Fraud and Deceptive Trade…