Class Counsel Blog

Deepwater Horizon Class Action Saga Continues as Fifth Circuit Affirms District Court's Certification of One Class and Denial of Another

Last Monday the Fifth Circuit affirmed a Texas district court’s decision certifying one class of BP PLC shareholders suing BP over the Deepwater Horizon disaster, and denying certification of another class of shareholders who purchased BP Stock prior to the explosion.  Ludlow v. BP, P.L.C., No. 14-20420, (5th Cir. Sept. 8, 2015).  The plaintiffs sought certification of two classes:  one for pre-spill representations relating to the risk of an oil spill, and one for post-spill misrepresentations.  The district court certified the post-spill class, but denied certification of the pre-spill class.  The district court found that the post-spill class of plaintiffs had appropriately established a model of damages consistent with their liability case, and capable of measurement across the class, as required by the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013).  However, it refused to certify the pre-spill class because this proposed class of shareholders failed to satisfy Comcast’s common damages requirement.  Both plaintiffs and BP appealed the district court’s decision to the Fifth Circuit Court of Appeals. Read More ›

Class Certification of the Uber Drivers: Our Litigation System Run Amuck or Vindication?

In a strained and tortuous series of decisions, a California federal Judge has perhaps fortuitously forced Uber into going to trial in a significant class action to save its business model along with that of the on-demand economy. Fortuitous only because this may be a case Uber can win.

First the facts: The plaintiffs, Uber drivers, claim that they are in fact employees of Uber, not independent contractors and that they are therefore entitled to “tips” and other compensation.  A California federal judge, Judge Edward Chen, recently certified a class of some of these drivers in a lawsuit in California against Uber. Read More ›

The Seventh Circuit rejects the heightened ascertainability requirement for class certification

The U. S. Court of Appeals for the Seventh Circuit recently held that the Federal Rules of Civil Procedure do not impose a heightened ascertainablity requirement for class certification, despite precedent to the contrary elsewhere.  In Mullins v. Direct Digital, LLC, No. 15-1776, 2015 WL 4546159 (7th Cir. Jul. 28, 2015), the Court of Appeals affirmed the court below, which had granted the motion to certify.  The case was a consumer fraud case, brought by a consumer who had purchased a dietary supplement for joints. The plaintiff filed a motion to certify the class of consumers who purchased the supplement for personal use during a certain time period.  After the case was certified under Rule 23(b)(3), the defendant filed an interlocutory appeal, and the Court of Appeals heard the appeal under Federal Rule of Civil Procedure 23(f).  The Court proceeded “to address whether Rule 23(b)(3) imposes a heightened ‘ascertainability’ requirement as the Third Circuit and some district courts have held recently.”  Id., at *1. Read More ›

Fifth Circuit Joins Split of Authority in Rejecting Rule 68 Offer of Judgment to Moot Class Action

    In Hooks v. Landmark Indus., Inc., No. 14-20496 (8/12/2015), the Court of Appeals for the Fifth Circuit joined a minority of the federal appellate courts in holding that "an unaccepted offer of judgment cannot moot a named-plaintiff’s claim in a putative class action[.]" Slip Op., at 2. Read More ›

Data Breach Litigation: The Sky is Falling or a Failure of Proof?

“This is the Voice of Doom speaking! Special bulletin! Flash! The sky is falling! A piece of it just hit you on the head! Now be calm. Don't get panicky. Run for your life!” Foxy Loxy

Much has been written recently about a decision by the 7th Circuit Court of Appeals in Remijas v. Neiman Marcus Groups LLC, 2015 WL 4394814 (7th Cir. July 20, 2015) (Remijas).  In Remijas, a class of Neiman Marcus customers was found to have standing to sue under Article III of the U.S. Constitution arising from a data breach incident involving the department store chain. Standing was based not on any actual damage to the Neiman customers but upon the claimed risk of future fraudulent charges and susceptibility to theft because of the breach. This flies in the face of a number of recent decisions, which, based on Clapper v. Amnesty International, 133 S. Ct. 1138, 185 L. Ed. 2d 264, (2013), rejected standing arguments based on threatened - but not actual - harm from data breaches. Read More ›

Third Circuit affirms that certified class may include members who are unable to demonstrate any legal injury.

On July 22, 2015, the U.S. Court of Appeals for the Third Circuit ruled that a Rule 23(b)(3) plaintiff class action satisfies the Article III standing requirement that plaintiffs demonstrate an “injury in fact” so long as a named class representative meets that requirement.  Under the ruling, a certified Rule 23(b)(3) class  may include unnamed class members who cannot demonstrate that they have suffered an injury in fact.  However, this new ruling makes clear that litigation classes may be certified without a showing that the unnamed class members satisfy the Article III injury in fact requirement.  The ruling also provides a much expanded supporting rationale for its holding. Read More ›

Indecent Exposure: Fraud Class Actions Frequently Fall at the First Hurdle

Fraud claims are generally ill-suited for class action treatment. In nearly any class action involving fraud, plaintiffs face an uphill battle in establishing class-wide exposure to the alleged misrepresentations, which is only an initial element of the claim. A recent federal court decision (Simmons v. Author Solutions, LLC, No. 13cv2801, 2015 WL 4002243 (July 1, 2015)) nicely illustrates the difficulty plaintiffs face. Read More ›

DOL Proposes New Requirement That Workers Earn At Least $50,440 Per Year To Qualify For White Collar Exemptions

On June 30, 2015, the U.S. Department of Labor (“DOL”) released its long awaited proposed rule changes to the “white collar” overtime regulations under the Fair Labor Standards Act (“FLSA”).  Although the DOL previously indicated they would simplify the FLSA’s often difficult to administer “duties test,” the DOL so far has left that test untouched.  Instead, the DOL proposes to raise the salary level from which an employee can qualify for a “white collar” exemption from overtime pay requirements from $23,660 per year to approximately $50,440 per year.  The DOL predicts this will cause employers to change the exempt status of nearly 5 million workers who are currently exempt from overtime requirements to non-exempt status – requiring the payment of overtime.  The proposed rule still needs to undergo a public comment period before it can be implemented as a final rule.  Read More ›

Ninth Circuit Panel Rejects Duty to Correct Pre-class Period Statements; Affirms Dismissal of Yahoo! Securities Litigation

     In re Yahoo! Inc. Securities Lit., No. 12-17080 (9th Cir. 5/15/2015) (unpublished), the Court of Appeals for the Ninth Circuit affirmed dismissal of a class action securities fraud complaint that was based upon alleged misstatements or omissions concerning Yahoo's investment in the Alibaba Group online & mobile marketplace ( Read More ›

From Bad to Worse: Appeals Court Affirms Class Certification for the Count Defendant Appealed, and Orders Class Certification of Two Other Counts that had been Denied

The Court of Appeals of Indiana recently decided an interlocutory appeal on class
certification from the Allen County Circuit Court, applying portions of Indiana
Trial Rule 23 that track the federal rule.   Read More ›

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Attorney Spotlight

Stephen E. Embry is a member of the Firm's class action, privacy and mass tort groups. He frequently defends participants in consumer class actions and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems.