Class Action Insider

On December 5, 2023, the U.S. District Court for the Eastern District of Pennsylvania in In Re: BPS Direct, LLC, and Cabela’s, LLC, Wiretapping (No. 2:22-cv-04709) dismissed several proposed class action claims on “session replay” software, limiting the viability of these suits in federal court.

In In re White, 2023 WL 2763812 (C.A.D.C., 2023), the D.C. Circuit—splitting with several other circuit courts—reversed a district court’s order that denied class certification because the plaintiffs sought to certify a “fail-safe” class. While acknowledging the recognized criticisms of fail-safe classes, the D.C. Circuit held that a standalone rule against fail-safe classes is an inappropriate and “extra-textual” limitation on certification.

On February 2^nd the Illinois Supreme Court decided Tims v. Black Horse Carriers, clarifying that all claims under Illinois’s Biometric Information Privacy Act (BIPA) are subject to a five-year—not one-year—statute of limitations. 

The nature of a class action requires defendants to think beyond the story or situation posed by one single plaintiff. When facing a lawsuit that potentially challenges a large-scale business practice or procedure, counsel often must focus on big-picture systemic issues that may affect hundreds or thousands of people. Yet sometimes, the deposition of a single person—the proposed class representative, commonly referred to as the “named plaintiff”—can elicit facts that tear the entire class action apart.

In August 2022, federal courts in California and New Jersey issued two class certification decisions that may signal an uptick in worker misclassification suits. In Roman v. Jan-Pro Franchising Int’l, Inc., the plaintiffs were three janitors who alleged that the defendant violated certain labor laws applicable to employees by misclassifying the plaintiffs as independent contractors.

In August 2019, plaintiff Susan Drazen filed a class action complaint against GoDaddy.com, LLC (“GoDaddy”) for alleged violations of the Telephone Consumer Protection Act of 1991 (“TCPA”).  Drazen alleged that GoDaddy called and texted her through a prohibited automatic dialing system.  After Drazen’s case was consolidated with other cases asserting similar TCPA violations against GoDaddy, the named plaintiffs proposed a class action settlement agreement. 

When a putative class action complaint hits their desk, among the first things that should cross a defense attorney’s mind—whether in-house or outside counsel—is venue.  For state-court cases specifically, “can this case be removed to federal court?”  Removal is usually beneficial to defendants—though it can sometimes be better not to remove, and that question should be carefully analyzed. 

On March 19, 2018, Plaintiff Lorraine Adell filed a class action complaint in Ohio federal court against Verizon Wireless, seeking damages arising from Verizon’s imposition of certain administrative charges. 

On February 14, 2022, Texas Attorney General Ken Paxton lassoed Meta Platforms Inc., Facebook’s parent company, with a lawsuit under Texas’ Capture or Use of Biometric Identifier Act.

In the past six months, juries have awarded huge punitive damages awards in individual California employment cases. Given that these individual cases could also proceed as class actions, it is important to examine the frequency and reasoning behind the juries’ decisions.

Earlier this week the popular diet app Noom announced that it had reached a $62 million settlement with plaintiffs in a class action who brought a host of state-law consumer protection and common law claims based on Noom’s allegedly deceptive enrollment scheme.

2021 was a light year for new securities class actions.  According to a report by Cornerstone Research and the Stanford Law School Securities Class Action Clearinghouse, plaintiffs filed only 218 securities class action cases in federal and state court in 2021 – a 35% drop from 333 cases filed in 2020.

In a case that bodes well for defendants in putative copyright class actions, the Ninth Circuit last week, after granting a motion for interlocutory appeal, reversed a district court’s decision certifying two classes of performers and composers who alleged that online concert archive Wolfgang’s Vault had violated federal copyright and anti-bootlegging laws by streaming recordings of live rock shows. Kihn et al. v. Bill Graham Archives LLC et al., No. 20-17397, 2022 WL 18935 (9th Cir. Jan. 3, 2022).

On December 1, 2021, Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra took broad aim at overdraft fees, making the sort of remarks that often get quoted in class-action complaints.  Chopra claimed that the amount of overdraft fees incurred is a sign of a market failure, but proposed only technological changes to make it easier to switch banks. Further, he criticized banks whose customers overdraft frequently, saying such banks should expect closer supervisory attention. According to Chopra, many overdraft fees result from complexities in the payment-settlement system. Finally, he referred to overdraft fees as “opportunistic” and “exploitative,” and he promised action against any large financial institution that violated the law (albeit without indicating what laws might have been violated or that the CFPB had evidence of any such violations). Recent editorials call for sweeping policy changes in light of Director Chopra’s remarks.

On September 30, U.S. District Court Judge Rodney Smith denied class certification in a Telephone Consumer Protection Act (“TCPA”) class action in which the named plaintiff “deceptively” prolonged calls to bolster his claims for damages. Order Denying Plaintiff’s Motion for Class Certification, Johansen v. Bluegreen Vacations Unlimited, Inc., No. 20-81076, at *10–11 (S.D. Fla. Sept. 30, 2021). This decision gives defendants a new tool, in TCPA matters and beyond, to potentially help defeat class certification.

Winston & Strawn is pleased to announce the launch of our blog covering the latest class action law issues impacting companies in the United States and abroad. The Class Action Inside blog will provide timely, brief, and relevant updates on what is happening in our courts.