Class Action Insider

Join us as we feature Jared Kessler in this installment of the Class Action Insider Blog’s Spotlight Series. Jared explores his journey as a class actions litigator so far and delves into upcoming class action trends.

Recent lawsuits claim baby bottle manufacturers deceived consumers by representing sippy cups and baby bottles were “BPA free” and therefore safe for use despite, plaintiffs allege, that heating these products could cause microplastics to leak into food and drinks.

In a summary order issued on June 10, 2024, the Second Circuit Court of Appeals relied on the U.S. Supreme Court’s holding in Macquarie Infrastructure Corp. v. Moab Partners, L.P., 601 U.S. 257 (2024), for the first time, demonstrating the relevance of the Court’s ruling to securities class actions.

There has been significant growth in U.K. class actions (often referred to in the U.K. as “collective actions”) in recent years.  As has been the case in the U.S.—where class actions have been a mainstay of litigation for decades—that growth in claims has been fuelled by claimant-side law firms and associated third-party funders.

In recent years, large companies have faced an onslaught of “mass arbitrations,” a tactic used by the plaintiffs’ bar to leverage against valid class-action waivers and arbitration provisions in consumer agreements. Although courts and legislatures offer little recourse, defendants have started hitting back, and several courts are currently evaluating the validity of new defense strategies.

On May 22, 2024, Tennessee joined Florida and West Virginia in enacting legislation that provides a legal safe harbor for companies that have experienced a cyberattack.

This week, we proudly present Sean Suber, who is a rising partner and long-time member of Winston’s class action group.

The growth of generative artificial intelligence (AI) has led to novel class action lawsuits, implicating disputes over, among other things, intellectual property, invasion of privacy, and facial recognition.

On April 1, 2024, Google agreed to settle a class action brought by Google Chrome users regarding their web-browsing histories under the “Incognito” option.  The action—filed in 2020 in the Northern District of California—alleged that for years, Google had been tracking individuals using Chrome’s incognito browsing mode.

Depending on how the Supreme Court decides Bissonnette, restaurants may have increased exposure to class actions by independent distributors, such as the plaintiffs in Bissonnette.

In Smith v. Miorelli, the United States Court of Appeals for the Eleventh Circuit reminded litigants of the importance of Article III standing, even where the parties agree to settle. Federal courts do not have authority to adjudicate a claim or to award a specific form of relief unless the plaintiff first satisfies this jurisdictional requirement.

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.

Class certification is the most important moment of any putative class action. Before class certification, the defendant’s exposure beyond the individual claim is still theoretical rather than concrete. But certification of a class allows a single plaintiff (or a small group of plaintiffs) to formally pursue the claims of numerous absent individuals, which raises the stakes for defendants. This article will explain basic strategies defendants should consider in class certification briefing.

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.

On September 28, 2023, Winston & Strawn LLP filed a Rule 23(f) petition in the Second Circuit requesting permission to appeal the district court’s grant of class certification—seeking clarification with respect to the application of the Supreme Court’s decision in Comcast v. Behrend, 569 U.S. 27 (2013).

In recent years, the UK has seen a rising trend of individuals coming together to collectively bring claims against large companies due to the introduction of new European procedural rules allowing for “collective actions”.

This week, we welcome to the spotlight Troy Yoshino, who joined Winston earlier this year. Troy is a seasoned litigator who focuses his practice on defending class actions from consumer claims to employment, privacy, financial services, insurance, toxic torts, and more. For over a decade, Troy has been listed as a “Northern California Super Lawyer” by Super Lawyers (2011–2023) and has been recognized by Global Competition Review for “Litigation of the Year – Cartel Defence.”

The Fourth Circuit recently vacated a class certification order in a significant customer data breach case, finding the district court erred by failing to first address the effect a class-action waiver (signed by class members) would have on certification.

On December 29, 2022, President Biden signed the Modernization of Cosmetics Regulation Act (MoCRA) into law. One provision of MoCRA charges the FDA to conduct research into the use of perfluoroalkyl and polyfluoroalkyl substances—better known as PFAS—in the cosmetic industry, and to publish a report containing its findings by December 29, 2025.

In February 2023, the Ninth Circuit Court of Appeals held in a 2–1 decision that Xerox waived “its right to compel arbitration … against unnamed”class members in Hill v. Xerox Business Services, LLC.