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Volume X, Number 189

July 07, 2020

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July 06, 2020

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Class Action Litigation Newsletter Spring 2020 - Third Circuit

Marbaker v. Statoil USA Onshore Properties, Inc., --- Fed. Appx. ----, 2020 WL 733049 (3d Cir. Feb. 13, 2020)

Third Circuit reiterates that parties must affirmatively agree to classwide arbitration.

Plaintiffs in Marbaker alleged that defendants underpaid for oil and gas leases, filing a putative class action seeking a declaratory judgment that the oil and gas leases permitted class arbitration. The district court dismissed the declaratory judgment claim and the Third Circuit affirmed. Relying on Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684 (2010), the panel explained that “courts will not force parties ‘to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.’” Because class arbitration “differs greatly from bilateral arbitration [as it] aggregates many more disputes, handles much higher stakes, compromises confidentiality, and binds absent parties,” “[c]ontractual silence is not enough,” and “[w]e will not infer consent.” Rather, there must be an “affirmative ‘contractual basis”’ for finding the parties consented specifically to class arbitration. The panel found these requirements were not met in the oil and gas leases because they did not mention class arbitration. Plaintiff argued the incorporation of the AAA arbitration rules in the oil and gas leases also incorporated the AAA’s Supplementary Rules for Class Arbitrations. The panel rejected that argument, reasoning that a short reference to the AAA rules is insufficient to incorporate the “panoply” of AAA supplementary rules.  Even if the supplementary rules were incorporated, that would be insufficient to “infer consent” to class arbitration because even those rules require consent to class arbitration. 

In re Lamictal Direct Purchaser Antitrust Litig., 957 F.3d 184 (3d Cir. 2020)

Third Circuit reaffirms that class certification requires rigorous analysis.

In re Lamictal is a pharmaceutical antitrust case in which plaintiffs claim that two pharmaceutical companies violated antitrust laws when settling a Hatch-Waxman lawsuit by delaying the entry of a generic product. The district court certified a class of direct purchasers. On appeal, the defendants challenged the district court’s ruling on the predominance requirement, specifically whether common issues predominated over individual issues as to antitrust injury.

The panel reversed, reiterating that the district court must conduct a “rigorous analysis” with respect to “three key aspects”: (1) the court must consider whether the factual determinations are supported by a preponderance of the evidence; (2) the court must resolve all factual and legal disputes, even if they overlap with the merits; and (3) the court must consider all factual and expert evidence, even if introduced by the party opposing class certification. Plaintiffs argued the district court acted properly because, under Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016), the predominance requirement was satisfied “unless no reasonable juror could believe the common proof at trial.” The panel rejected this argument, concluding that “a putative class must demonstrate that its claims are capable of common proof at trial by a preponderance of the evidence.” The panel then reversed the predominance finding on the issue of antitrust injury because the district court relied on averages rather than resolving the factual and expert issues presented by the parties: “[i]t was up to the District Court to scrutinize the evidence to determine what was credible and could be used in the expert analysis.”

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 150


About this Author

Robert Herrington, Greenberg Traurig Law Firm, Los Angeles, Cybersecurity Litigation Attorney

Robert J. Herrington is an attorney in firm's Products Liability & Mass Torts Practice. He focuses his practice on defending consumer products companies in complex, multi-party litigation, including class actions, government enforcement litigation, product defect litigation and mass torts. Rob represents companies in a variety of industries, including apparel and footwear, retail, emerging technologies, consumer electronics, video game, telecommunications, advertising and publicity, online retailing, food and beverage, nutritional supplements, personal care products...

Stephen L. Saxl Class Action Attorney Greenberg Traurig

Stephen L. Saxl is the Co-Chair of the Class Action Litigation Group. He concentrates his practice on defending class actions and complex litigation matters in federal court and New York State courts. His class action experience includes cases in the securities, retail, telecommunications, publishing, insurance, Internet and tobacco industries. He has defended clients against statutory and common law claims including fraud, unfair trade practices, Racketeer Influenced and Corrupt Organizations (RICO), breach of contract and price-fixing.


  • Class actions
  • Complex civil litigation
  • Securities and broker-dealer litigation
  • Commercial litigation
  • Consumer litigation
  • Antitrust
  • Media
  • Privacy litigation
  • Product liability
John Crisham Litigation Attorney Greenberg Traurig

John Crisham has briefed, argued, and won complex civil litigation cases involving class actions, energy and environmental matters, commercial and business disputes, products liability and health care, and employment law. John has represented clients at virtually every state of litigation, from dispositive motions to appeals, in more than 15 different states, before 10 different federal Courts of Appeal, and in the United States Supreme Court. He served as counsel for the prevailing petitioners in Mutual Pharmaceutical Company v. Bartlett, 570 U.S. 472 (2013) and Pliva, Inc. v...

Phillip H. Hutchinson Business Litigation Attorney Greenberg Traurig West Palm Beach, FL

Phillip H. Hutchinson is a strategic business litigator who defends corporations in complex litigation claims in state and federal courts, including individual class actions and real estate litigation disputes. Phillip has represented clients in cases involving complex product liability disputes, automobile rollover claims, construction defects (including delay claims), insurance coverage defense, eminent domain actions, employment discrimination, non-competition agreements, and real estate disputes, including commercial leases. He has broad experience in complex case management,...

Lisa M. Simonetti Complex Litigation Attorney Greenberg Traurig Los Angeles, CA

Lisa M. Simonetti focuses on the defense of complex litigation, with broad experience representing clients in the financial services industry, including regional and national banks, credit card issuers, mortgage bankers, various types of loan servicers, consumer finance companies and third-party collectors. She serves as trial and appellate counsel in courts across the country and routinely counsels financial services clients on compliance with state and federal laws and regulations.


  • Telephone Consumer Protection Act
  • Fair Credit Reporting Act...