Class Action Insider

Cy pres provisions are often used in class action settlement agreements. Under such provisions, settlement funds that go unclaimed by class members are distributed to one or more third parties, usually a charity, legal-services organization, or other entity with some relation to the underlying dispute.

On August 23, 2017, Plaintiff Alfred Johnson filed a class action complaint on behalf of more than 14,000 job applicants in California state court against WinCo Foods (WinCo), seeking reimbursement for the time and travel expenses incurred while traveling to take a drug test.  Plaintiffs alleged that they were WinCo employees at the time they obtained a drug test.  The case was removed to federal court under the Class Action Fairness Act in November 2017, and a class was certified in March 2020.  On August 3, 2020, Plaintiffs filed their motion for partial summary judgment as to whether class members were WinCo employees. On August 3, 2020, WinCo filed its motion for summary judgment, or in the alternative partial summary judgment. The district court held that as a matter of law, WinCo was entitled to summary judgment as to the entire class on the issue of whether class members were employees at the time of drug testing.

The Surfside Condo Collapse Class Action final settlement proposal is nearly $1 billion. Judge Michael Hanzman set a firm trial date for March 27, 2023, and refused to consider any continuance which likely also helped facilitate the settlement.

The alleged health risks of per- and poly-fluoroalkyl substances, or PFAS, are garnering increased attention from plaintiffs’ lawyers.  In the wake of recent efforts to update risk evaluations and risk assessments by agencies such as the Environmental Protection Agency, the Food & Drug Administration, and the Center for Disease Control, private plaintiffs are bringing products liability, mass tort, consumer protection, and consumer fraud claims using the health and safety findings (or inquiries) by the federal government as the lynchpin of their complaints.

In Olean Wholesale Grocery Co-op Inc v. Bumble Foods LLC, No. 19-56514 Dkt. No. 186-1 (9th Cir. Apr. 8, 2022), an en banc Ninth Circuit panel overturned a previous Ninth Circuit decision in this litigation, finding that the district court did not abuse its discretion in certifying three classes of purchasers in their price fixing case against the three largest American producers of packaged tuna.

Where a federal agency has reviewed and approved a product label pursuant to a federal statute, claims brought under state laws challenging that label are preempted—however, preemption will not apply to claims premised on statements that are “materially different” from those reviewed.

The United States District Court for the District of New Jersey’s dismissal of several claims in Cohen v. Subaru Corporation exemplifies the utility of the economic loss rule and puffery arguments in the class action and false-advertising contexts.  Class action defendants should take note of these defenses as an opportunity to slice at the size and scope of plaintiffs’ cases.

The Eighth Circuit sealed a win Wednesday for an insurer and its third-party administrator defending against a proposed class action led by a man seeking coverage for flights he canceled as a result of COVID-19 stay-at-home orders, finding that a Missouri federal court properly held that an epidemic exclusion was applicable. A traveler does not need to be infected with COVID-19 to be “affected” by the COVID-19 pandemic, and the court properly applied an exclusion to a claim relating to a flight cancellation.

The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) mandating that private employers with more than 100 employees determine the COVID-19 vaccination status of each employee by obtaining proof of vaccination. The mandate requires consistent testing for unvaccinated employees.

Today, companies often use endorsements and testimonials to advertise and market their products and services on both traditional and social media.  Using celebrities or other popular figures – often called “influencers” – as part of this effort is a growing trend, with industry insiders predicting that influencer marketing may be a $10 billion dollar industry in 5 years.  You’ve undoubtedly noticed (or used) the pop sensation to model a trendy brand on Instagram or the superstar athlete driving the latest model sportscar on TikTok.  Well, the Federal Trade Commission (“FTC”) has certainly noticed.

On September 15, in a decision long-anticipated by California employers, the Ninth Circuit upheld Assembly Bill (A.B.) 51, a law that prohibits employers from requiring employees to sign arbitration agreements as a condition of employment. Arbitration agreements often contain class action waivers and thus A.B. 51 significantly impacts an employer’s ability to prevent class litigation from ensuing.

In July, Congressmen Robert C. Scott (VA-03) and Jerrold Nadler (NY-10) introduced the Restoring Justice for Workers Act, which seeks to eliminate arbitration agreements in the employment context. They have done so while Congress is already considering (again) whether to eliminate predispute arbitration agreements as well as class action waivers in employment, consumer, antitrust, and civil rights litigation – an action with enormous potential consequences for businesses and employers. Earlier this year, Congressman Hank Johnson Jr. (D-GA) and Senator Richard Blumenthal (D-CT) introduced the Forced Arbitration Injustice Repeal Act (the “FAIR Act”). The House passed the bill in 2019, but the Senate – then under Republican control – never moved on it.