Class Action Litigation Newsletter | Spring 2021 | Ninth - Eleventh - D.C. Circuits
This GT Report Summarizes Recent Class-Action
Decisions From Across the United States
Highlights from this issue include:
Supreme Court holds that serving a product market in the forum state is sufficient for specific personal jurisdiction in product liability lawsuits even when the product was not designed, manufactured or sold in that market.
First Circuit looks to recent Massachusetts decision in upholding order compelling individual arbitration and dismissing putative class action based on an online “clickwrap” agreement.
Second Circuit holds that a district court can sua sponte decertify a class after class certification, even absent a significant intervening event.
Third Circuit finds mootness of individual plaintiff’s claim renders class claims moot.
Fourth Circuit rejects predominance arguments and affirms certification of class asserting breach of contract and unconscionable inducement claims.
Fifth Circuit rejects conditional certification process in FLSA collective actions, articulating a new standard requiring district courts to make final certification decisions before allowing cases to proceed.
Fifth Circuit rules that the Daubert standard applies to expert opinions at the class certification stage.
Sixth Circuit holds that non-expert evidence need not be admissible at the class certification stage.
Seventh Circuit reverses class certification where the concept of employment based “ambient harassment” is insufficient to satisfy Rule 23 requirements given the class definition.
Arkansas Supreme Court affirms class certification where public records and objective criteria aid in ascertaining the class.
Ninth Circuit remands price fixing class action for consideration of evidence that more than a “de minimis” portion of class members was not injured.
District court in the D.C. Circuit rules that CAFA jurisdiction is improper unless the complaint itself invokes the class action rule or mechanism.
U.S. Supreme Court | First Circuit | Second Circuit | Third Circuit | Fourth Circuit | Fifth Circuit | Sixth Circuit | Seventh Circuit | Eighth Circuit (Arkansas Supreme Court) | Ninth Circuit | Eleventh Circuit | D. C. Circuit
Under terms of arbitration agreement, public injunctive relief is available in a single plaintiff proceeding.
Plaintiff brought proposed class action claims against a smartphone app financial services provider under California’s Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA), challenging the terms for allowing cancellation of a banking membership agreement. The membership agreement included an arbitration clause waiving the right to bring a class action, serve as a private attorney general or join claims of other customers. The district court granted defendant’s motion to compel arbitration.
On appeal, plaintiff argued that the arbitration clause violated the rule stated by the California Supreme Court in McGill v. Citibank, 2 Cal. 5th 945 (2017) – i.e., “a person cannot contractually waive the right to seek ‘public’ injunctive relief.” But the Ninth Circuit rejected the argument, noting that the arbitration provision allowed an arbitrator “to award all remedies available in an individual lawsuit,” including injunctive relief. The Ninth Circuit then noted that public injunctive relief is available under the UCL, FAL and CLRA, which could be sought in an individual, bilateral arbitration. The Ninth Circuit therefore affirmed the district court.
Ninth Circuit remands price fixing class action for consideration of evidence that more than a “de minimis” portion of class members was not injured.
Purchasers of various tuna products sued producers of packaged tuna products for price-fixing and other anti-competitive conduct. The district court certified the proposed classes, despite evidence showing that potentially 28% of the class members had not suffered actual and direct injury -- i.e., they were not impacted by price-fixing and, thus, did not pay an inflated price. The district determined that this was an issue for trial.
The Ninth Circuit disagreed, finding that it was an abuse of discretion for the district court to “gloss over” this potential number of uninjured plaintiffs. In connection with analysis of predominance, there is no set threshold for what portion of the class must suffer actual injury. But the Ninth Circuit found that the uninjured portion must be “de minimis,” and 28% would be far out of bounds. The case was remanded for consideration of the issue.
Court denies preliminary approval of class action settlement finding the monetary compensation was too low in comparison to potential damages.
Plaintiffs filed a class action for breach of contract and state consumer protection violations as to defendant’s tax preparation product. The parties negotiated a $40 million settlement in which each class representative would receive a $10,000 award, the attorneys’ fees would constitute 25% of the fund, and the remaining $28 million would be paid to class members who signed a written attestation stating that they paid a $100 annual fee for tax filing, when they expected it to be free. Defendant also agreed to modify certain business practices. In connection with preliminary approval, the court held that the monetary compensation did not constitute adequate relief because: (1) defendant’s potential liability was at least $1.9 billion, and class members would only recover 1.5% of that amount; (2) class members paid at least $100 each, but the settlement provided only 28% recovery of their damages; and (3) the settlement provides the same relief for those that paid for one year, and those that paid for more than one year. The court further held that the opt-out procedure was burdensome, as it required class members to sign in wet-ink and mail a hard copy of the opt-out. The court found this particularly important because many individuals were arbitrating the same claims outside the scope of the proposed class action.
Commonality must be firmly proven where plaintiffs seek class certification for alleged countrywide discriminatory hiring practices.
Plaintiffs brought a class action against an information technology services and consulting company for alleged discriminatory hiring practices. Plaintiffs alleged that, through its hiring process, defendant screened out all non-South Asian, local candidates, and only hired foreign South Asian candidates. On plaintiffs’ motion for class certification, the court held that plaintiffs failed to establish commonality for several reasons, including: (1) a portion of the class could not have been subjected to the alleged discriminatory practices because they applied for specific positions that excluded visa holders and required the positions to be filled by citizens or green card holders; (2) over 50% of positions during the class period were withdrawn because of matters outside of defendant’s control, e.g., they were filled by a competitor, filled by a client’s direct applicant, or withdrawn by the client; (3) plaintiffs were unable to provide the “glue” holding the various alleged discriminatory experiences together, as is required where plaintiffs challenge a countrywide employment system, because defendant’s hiring process is different for each position applied; (4) during the class period, defendant used approximately 1,800 hiring managers across the country, each of whom had discretion to make hiring decisions; (5) employment decisions took place in “47 states, involved roughly 16,000 job searches, and concerned approximately 200 job types,” all of which required individual employment decisions involving different factual circumstances; and (6) plaintiffs did not show a “common direction” from defendant’s management regarding hiring procedures.
Defendant also partnered with a third party to support its website. The third party provided a “lead certification product that helps businesses comply with regulations like the Telephone Consumer Protection Act . . . by documenting consumer consent.” That product can record “keystrokes, mouse clicks, data entry, and other electronic communications of visitors to websites.” Defendant therefore could secure a video of a user’s interaction with the website, including consent to being contacted by phone.
Plaintiff visited defendant’s website and completed the click-through process. When he subsequently received telephone calls from a supposedly unknown party and complained about them, he was “shocked to discover” that his activities had been recorded on defendant’s website and filed the CIPA action.
Purchasing a durable good does not provide standing to seek a permanent injunction relating to future purchases when such purchases are not likely to be repeated with any frequency.
Plaintiffs filed a putative class action based on the allegation that defendant’s advertising of its televisions as having a “120Hz CMI effective refresh rate” was false or misleading because the TVs in fact had a 60Hz refresh rate. Plaintiffs alleged claims under the UCL, FAL, CLRA, and New Jersey Consumer Fraud Act (N.J. Stat. Ann. § 58:8-1 et seq.), as well as for unjust enrichment.
Among other forms of relief, plaintiffs sought a permanent injunction, and defendant moved to dismiss that claim based on lack of standing. The court granted the motion, finding that plaintiffs’ conclusory allegation that they intend to purchase one of defendant’s televisions without any factual allegations to suggest a purchase in the relatively near or foreseeable future is not sufficient, at least in the context where, as here, the goods are not like consumable items that are bought on a repeat basis, but rather durable goods not typically purchased on a regular basis.
Where an arbitration clause incorporates AAA rules, the question of enforceability must be presented to the arbitrator.
Plaintiff sued a video game developer, alleging that a feature of certain games violated California law. Each game was governed by a standard user agreement, which contains an arbitration provision with a class-action waiver. The arbitration provision was subject to the rules of the American Arbitration Association (AAA), which provide that “the arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.”
In opposing defendant’s motion to compel arbitration, plaintiff argued that the provision was unenforceable under McGill v. Citibank, 2 Cal. 5th 945 (2017), because it bars his ability to seek public injunctive relief. The court rejected this argument, finding that “incorporation of the AAA rules constituted clear and unmistakable evidence that the contracting parties agreed to arbitrate arbitrability.” Thus, the enforceability issue would proceed before the arbitrator, not the court.
It was proper for the court to look to plaintiff’s amended complaint to determine whether the “home state controversy” applied under CAFA.
Plaintiff brought state law wage and hour claims on behalf of drivers who use defendant’s California-based platform to make food deliveries for defendant’s customers. The case was initially filed in San Francisco County Superior Court, and defendant removed the case to the Northern District of California under the Class Action Fairness Act (CAFA). On plaintiff’s motion for remand, the court examined, among other things, the “home state controversy” exception, which requires a district court to decline to exercise jurisdiction “over a class in which two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.”
In the original complaint, plaintiff defined the putative class as “each individual whom [defendant] has employed as a [d]river in California at any time since the date four years prior to the filing of the instant case and whom [defendant] has classified as an independent contractor.” Following removal, plaintiff filed an amended complaint, defining two subclasses: (1) “each individual . . . employed as a [d]river in California at any time beginning on March 1, 2020, and whom [defendant] classified as an independent contractor during that time”; and (2) drivers who were terminated because they opted out of defendant’s arbitration agreement.
The parties engaged in discovery, which demonstrated that the vast majority of class members under the amended complaint – more than 80% – likely were California residents. Defendant, however, argued that this evidence was insufficient to establish CAFA’s home state controversy exception because jurisdictional analysis must be based on the pleadings at the time of removal – i.e., looking at the definition in the initial complaint. The court rejected this argument, finding that plaintiff’s amendment was not intended to “chang[e] the nature of the class to divest the federal court of jurisdiction,” which would be improper. Rather, plaintiff had amended to account for the settlement of similar class claims in another pending action. Thus, analyzing the definition in the amended complaint, the court noted that the burden of establishing the exception “should not be exceptionally difficult to bear,” and found that plaintiff had shown by a preponderance of the evidence that at least two-thirds of the putative class members were California citizens.
Jialu Wu v. iTalk Global Communications, Inc., No. _________, 2021 U.S. Dist. LEXIS 31496 (C.D. Cal. Feb. 2, 2021)
Plaintiffs could not seek equitable relief under California’s UCL when damages will provide adequate relief for any alleged harm from automatically renewing television services.
Plaintiffs filed a putative class action alleging that, without clear warnings or affirmative consent, defendant (1) enrolled its customers in subscription services that automatically renew for iTalkBB Chinese TV, which connects to a television (similar to a cable box) and provides access to popular Chinese movies and television shows through defendant’s service, and (2) fails to give its customers the ability to cancel such services online. Plaintiffs alleged a single cause of action for violation of California’s Unfair Competition Law (UCL), codified at California Business & Professions Code §§ 17200, et. seq.
The district court granted defendant’s motion to dismiss, finding that plaintiffs’ claims failed as a matter of law because plaintiffs did not establish the inadequacy of legal remedies (i.e., damages), as required under the Ninth Circuit’s recent decision in Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020). The court rejected plaintiffs’ argument that Sonner was distinguishable because, unlike the plaintiff in Sonner, the plaintiffs in Jialu Wu sought both restitution and injunctive relief. The court found this to be a distinction without a difference, noting that the clear rule in Sonner is that plaintiffs must plead the inadequacy of legal remedies before requesting any equitable relief.
The court also rejected plaintiffs’ argument that, unlike the plaintiff in Sonner, who sought damages for past conduct, the plaintiffs in Jialu Wu sought relief for future violations based on automatic renewals in the future for plaintiffs and the putative class members. The court found that plaintiffs had not explained why their potential future monetary harm caused by defendant – if they choose to continue using defendant’s services – would be irreparable, and that lost money is the exact type of harm that money damages can adequately remedy, whether suffered in the past or potentially suffered in the future.
Next, the court rejected plaintiffs’ argument that injunctive relief was appropriate because they were suffering a continuing injury due to automatic renewals, finding that monetary relief was also adequate to compensate for such harm.
Finally, the court rejected plaintiffs’ argument that Sonner did not apply because they only sought relief under the UCL. The court found that plaintiffs’ argument would impermissibly allow state legislatures to empower federal courts to issue equitable relief – regardless of the type of harm suffered by the claimant or whether such harm could be remedied by money damages – so long as the claimant sues under a state statute that only permits equitable relief.
Glenn Liou v. Organifi, LLC, No. _________, 2021 U.S. Dist. LEXIS 24681 (S.D. Cal. Feb. 8, 2021)
Plaintiff stated claims under the UCL, FAL, and CLRA by alleging facts regarding direct evidence that benefit statements on juice packaging were provably false.
Plaintiff filed a putative class action against defendants alleging claims for, inter alia, violation of the California UCL, FAL and CLRA based on defendant’s allegedly false and misleading statements about its product Organifi Green Juice.
The district court denied defendant’s motion to dismiss claims that were based on benefit statements on the Green Juice packaging in which defendants claimed that “Green Juice’s effectiveness at treating certain conditions has been proven by third-party clinical trials.” The court found that plaintiff stated claims because he adequately alleged direct evidence that the statements were provably false by claiming that (1) there has only been one study of Green Juice conducted, not multiple; (2) the single study of Green Juice does not qualify as a “clinical trial”; (3) any other studies relied on by defendants are of Green Juice’s component ingredients, rather than studies of Green Juice itself; and (4) the 18 clinical trials specifically referenced by defendants in support of the benefit statements do not actually support Green Juice’s efficacy. With respect to statements for which plaintiff did not allege facts showing they were provably false, the court found that such claims were “lack of substantiation claims,” which private litigants are prohibited from bringing under the CLRA or UCL under Nat’l Council Against Health Fraud, Inc. v. King Bio Pharm., Inc., 107 Cal. App. 4th 1336 (2003).
Equitable tolling does not apply to permissible procedural delays in providing contact information for putative class members.
Plaintiff filed a wage and hour putative class action based on alleged FLSA violations. In her motion for class certification, plaintiff asked the court to equitably toll the statute of limitations for opt-in plaintiffs from the date by which she requested defendant provide the proposed collective members’ identities and contact information, pursuant to Stoll v. Runyon, 165 F.3d 1238 , 1242 (9th Cir. 1999) (holding that in general, “[e]quitable tolling applies when the plaintiff is prevented from asserting a claim by wrongful conduct on the part of the defendant or when extraordinary circumstances beyond a plaintiff’s control made it impossible to file a claim on time.” Further, the Ninth Circuit has held equitable tolling is appropriate when “such tolling is supported by substantial policy reasons.”).
The court held that procedural delays typically do not justify equitable tolling, and that specifically, the FLSA does not require defendants to provide contact information for potential plaintiffs until after the court certifies a putative class action. The court thus rejected plaintiff’s argument that tolling was appropriate because defendant allegedly improperly withheld the contact information for potential plaintiffs. The court found that defendant’s refusal to provide the contact information prior to an order certifying a class does not constitute wrongful conduct that would justify equitable tolling.
Class action waiver provision requiring consumers to waive their right to pursue public injunctive relief was unenforceable under McGill v. Citibank, N.A., 2 Cal. 5th 945 (2017).
In this putative class action, plaintiffs alleged that defendant charged unconscionable interest rates on loans in violation of California Financial Code sections 22302 and 22303. The defendant filed a motion to compel arbitration and stay the action pursuant to an arbitration clause contained within the putative class members’ loan agreements. The court denied the motion on the grounds the provision was invalid and unenforceable because it required consumers to waive their right to pursue public injunctive relief, under the California Supreme Court’s ruling in McGill v. Citibank, N.A., 2 Cal. 5th 945 (2017). The court noted that plaintiffs’ complaint and prayer did not limit the requested remedies for only plaintiffs or certain putative class members, but rather encompass all consumers and members of the public. The court also found that an injunction against defendant’s unlawful practices would not directly benefit the named plaintiffs because they have already been harmed and are already aware of the misconduct, and any benefit to the plaintiffs was incidental to the general public benefit of enjoining such a practice. The court also rejected defendant’s argument that McGill applies only to plaintiffs seeking to enjoin false or misleading advertising on behalf of the general public, finding that California’s consumer protection laws must be liberally, not narrowly, applied. The court further held the class action provision was not severable and rejected defendant’s argument that McGill is preempted by the Federal Arbitration Act.
A defendant does not waive its right to compel arbitration where it waited for the outcome of a Supreme Court decision that would substantively affect the merits of a motion to compel arbitration.
Defendant appealed a California superior court’s order finding waiver of the right to compel arbitration against a proposed class. Defendant had filed the motion shortly after issuance of a United States Supreme Court decision, Lamps Plus Inc. v. Varela, 139 S. Ct. 1407 (2019), which eliminated the risk that the arbitration agreement could be interpreted as allowing class-wide arbitration. At that time, the case had already been being litigated for 14 months, and discovery was underway. The superior court held that it would be prejudicial to commence arbitration after the case had been litigated for this length of time. However, the California Court of Appeal, Second District, found insufficient prejudice and good reason for defendant to wait for the Lamps Plus decision as it was pertinent to the merits of the motion. Thus, the Court of Appeal reversed the trial court, and ordered that the motion to compel arbitration be granted.
Batista v. South Florida Woman’s Health Assn., Inc., No. 19-10133 (11th Cir. Feb. 1, 2021)
Eleventh Circuit resuscitates attorney’s fee claim after trial judge awards $0.00
The Eleventh Circuit Court of Appeals found that a district court’s denial of attorney’s fees in a FLSA suit was not warranted, as the court’s decision was based on unsubstantiated claims presented by the defendant.
The magistrate judge had based the ruling below on an assertion by defendant that it had mailed plaintiff her final paycheck at her last known address. However, the record was devoid of any evidence supporting the claim that the check for $551.00 had been mailed. Plaintiff asserted she had contacted defendant seeking her last check and was told she would not be paid. Plaintiff’s counsel filed suit against defendant for the unpaid wages without sending any form of demand letter. Defendant sought settlement of the claim, but the settlement could not be reached because defendant would not agree to pay the resulting attorney’s fees.
The Eleventh Circuit panel found that any examination of the reasonableness of fees would necessarily involve “an assessment of the relative reasonableness of each party’s action during the tedious negotiation process, including the extent to which counsel Kozolchyk had initially requested exorbitant fees, which request defendants argue was the unreasonable act that prompted ensuing negotiations and triggered the additional expense that Kozolchyk now tries to reap.” The magistrate judge had found that defendants had timely issued and mailed plaintiff her last paycheck. Accordingly, the magistrate awarded $0.00 in attorney’s fees finding plaintiff’s counsel’s action unreasonable. However, there existed no record evidence to substantiate defendant had mailed the paycheck to plaintiff’s last known address.
AE Management, LLC v. Illinois Union Insurance Co., Civ. Action No. 20-22925, 2021 U.S. Dist. LEXIS 40230 (S.D. Fla. Mar. 4, 2021)
District court rejects claims of restaurant owners seeking damages under all-risk insurance policy.
The district court for the Southern District of Florida dismissed the claims of restaurant owners seeking damages under their all-risk insurance policies as a result of government orders closing business due to the spread of COVID-19.
A group of South Florida restaurants ranging from casual eateries to upscale dining establishments brought suit against their insurer due to the interruption to their businesses necessitated by government orders prohibiting on-premises dining. The restaurants suffered business income losses and incurred additional expenses related to the COVID-19 shutdown. The restaurants all had an all-risk commercial property insurance policy containing a business interruption clause. Plaintiffs argued that the policy did not contain an exclusion for the loss of business income caused by emergency government orders resulting in the physical loss of or damage to their properties.
Plaintiffs argued they were entitled to coverage under one of three possible theories: (i) a government order caused the limiting of the functionality of their property; (ii) the imminent risk of harm due to exposure to COVID-19; or (iii) the need to preserve property under the insurance policy and common law. The heart of the arguments was premised on the assertion that the government orders caused the restaurants to lose physical use and access to their properties. Accordingly, plaintiffs claimed that the loss of use of the premises or loss of access satisfied the requirements of “direct physical loss of or damage” to the property. The restaurant owners argued that the most reasonable interpretation of their policies required the court to find coverage.
The district court rejected plaintiff’s arguments with respect to physical loss, since the government orders did not cause direct physical loss of or damage to the restaurant’s property so as to trigger coverage under the policy. The court concluded that to find a covered loss would require it to “read additional words into the policy.” The court concluded that under Florida law the phrase “direct physical loss of or damage to property” requires “a distinct, demonstrable, physical alteration of the property.” No such alterations occurred as a result of the pandemic shutdown. Thus, the district court dismissed the complaint with prejudice because plaintiffs failed to state a claim under Rule 12(b)(6).
D.C. district court finds that diversity jurisdiction cannot be satisfied based on total cost of compliance with the requested injunction or attorneys’ fees, and that CAFA jurisdiction is improper unless the complaint itself invokes the class action rule or mechanism.
Beyond Pesticides filed a lawsuit against Exxon Mobil Corp. in the Superior Court of the District of Columbia, alleging claims under the District of Columbia Consumer Protection Procedures Act (DCCPPA). Exxon removed the case to federal court and argued, among other things, that diversity jurisdiction was established and that the case qualified as a class action under CAFA. Beyond Pesticides filed a motion to remand, which the federal district court granted.
In finding a lack of diversity jurisdiction, the court noted that Exxon could not satisfy the amount in controversy requirement of 26 U.S.C. § 1332(a) by relying upon “the total cost of compliance with the requested injunction” or the plaintiff’s request for attorneys’ fees. Indeed, to do so would “violate the non-aggregation principle,” and to use the cost of compliance or attorneys’ fees to satisfy the amount-in-controversy would require division by the number of purported beneficiaries of the requested injunction or attorney services (and necessarily that Exxon’s share of the total is still greater than $75,000, which Exxon has not shown).
The court also found that the requirements for CAFA jurisdiction were not satisfied either. The court flagged several points relating to plaintiff’s pleading – specifically, plaintiff made “no allegations in its complaint about a potential class and did not bring its action under Superior Court Rule of Civil Procedure 23.” The absence of such labeling categorizes these DCCPPA claims as “private attorney general suits,” not class actions.
Editors: Robert J. Herrington & Stephen L. Saxl & Co-authors: Aaron Van Nostrand, Kara E. Angeletti, Andrea N. Chidyllo, Gregory Franklin & Brian D. Straw