Class Counsel Blog

Showing 9 posts by Christopher S. Burnside.

Spokeo, Inc. v. Robins: A Well Executed Punt?

On Friday, the Supreme Court came out with its long awaited decision in Spokeo, Inc. v. Robins. In a nutshell, the Court really decided little: it vacated the previous 9th Circuit decision and remanded the case back to that court for further consideration. In some quarters, that would be called a “punt.”

Nevertheless, perhaps the result can be summarized at best as a tie for defendants – the Court was clear that the mere allegation of the violation of a statute that contains a monetary penalty would not support standing. But at worst for defendants the decision clearly leaves the door open for claims that involve only a statutory violation and penalty can proceed where there is some sort of undefined link between the penalty and some tangible or intangible harm. Read More ›

Data Privacy Rx Conference Materials Available Here

Thank you to all who joined us for our Data Privacy Rx Conference on May 26, 2015.  Clearly data privacy and cyber security are among the top issues organizations face today. Read More ›

Opening the Rule 23 Floodgates: Did Plaintiffs just hit the Data Breach Bulls-Eye?

Big cases often result in significant and unprecedented results. That certainly seems the case with two recent decisions in the Target Data Breach Litigation in Federal Court in Minnesota.  When these decisions are analyzed with other Federal Court decisions which have not followed the SCOTUS precedents  found  in Dukes and Comcast, 2014 seems to set an ominous tone for future data breach and privacy class actions.  What it all means remains to be seen, but certainly the recent decisions to deny Target’s motions to dismiss are troubling. Read More ›

Oui, Mais – “but of course” the 11th Circuit Holds Wife’s Providing Cell Phone Number Was “Prior Express Consent” for Debt Collection Calls

In Mais v. Gulf Coast Collection, 2014 WL 4802457, the Court held that providing a cell number on a hospital admission form was “prior express consent” consistent with previous FCC rulings.  To date, this is the most significant decision involving the binding application of the FCC’s interpretation on rulings that merely providing a cell number is “prior express consent” to be called in certain situations. Read More ›

Your Litigation Checklist: Defenses Based on a Class Representative's Nondisclosure in Bankruptcy

Most litigators have a standard deposition outline that incorporates a few introductory questions.  Usually, those questions include an inquiry into the deponent’s experiences with the legal system: Have you ever been involved in a lawsuit before?  Filed for workers compensation?  Ever filed for bankruptcy?  While seemingly perfunctory, the answer to this last question may provide valuable fodder for the class action defendant.  That is, with a little extra due diligence, the putative class defendant may be able to identify additional, game-changing defenses based on a debtor’s failure to disclose to the Bankruptcy Court claims or litigation against the potential class defendant.  See Danielle Kingsbury, et al. v. U.S. GreenFiber, LLC, et al. Read More ›

The Sixth Circuit is not Buying what Lake City is Fax-Blasting: Affirms TCPA Class Certification and Summary Judgment

In February 2006, Lake City, a business that distributes pipe-thread sealing tape hired Business to Business Solutions (“B2B”), a fax-blasting advertising company, to transmit advertisement faxes on its behalf.  Lake City President, Jeffrey Meeder and B2B drafted the advertisement and sent the unsolicited fax to approximately 10,000 recipients. Read More ›

Sixth Circuit Rules that Class Plaintiffs Cannot Aggregate Claims to Satisfy Amount-in-Controversy Requirement

The Sixth Circuit ruled last week that class plaintiffs may not aggregate their claims to satisfy the $75,000 threshold for diversity jurisdiction.  Read More ›

In the 6th Circuit, Dukes works in a TCPA Case

The Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), provided class action litigators with a few now-familiar refrains.  First, a plaintiff’s claim must depend on a common contention, the resolution of which will resolve an issue central to the claims “in one stroke.”  And, the class proceeding must be capable of generating “common answers” to resolve the case, rather than the mere identification of countless common questions.  After Dukes, we have seen mixed results in putative class cases, and the Supreme Court’s decision has not seemed to quell the number of certified cases or appellate affirmations of a District Court’s decision to certify.  See In re: Whirlpool Corporation Front-Loading Washer Products Liab. Litig., 678 F.3d 409 (6th Cir. 2012) cert. granted, judgment vacated sub nom. Whirlpool Corp. v. Glazer, 133 S.Ct. 1722 (U.S. 2013); In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838 (6th Cir. 2013), cert denied, 134 S.Ct. 1277 (U.S. 2014); Butler v. Sears, 702 F.3d 359 (7th Cir. 2012), cert. granted, judgment vacated, 133 S.Ct. 2768 (U.S. 2013) and judgment reinstated, 727 F.3d 796 (7th Cir. 2013) cert. denied,  134 S.Ct. 1277 (U.S. 2014).  Some might even conclude that the lower courts are not following the spirit of Dukes, and are creating work-arounds to justify certification in a particular case. Read More ›

"Picking Off Class Representatives" - Using a Rule 68 Offer of Judgment to "Moot" Potential Class Claims

Is there a way to end putative class action litigation before it gets started?  Maybe.  Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013).  In appropriate cases, and after a risk assessment, a defendant facing a putative class action suit may seek to “pick off” a potential class representative with an Offer of Judgment under Fed.R.Civ.P. 68 in full satisfaction of his or her claims.  In doing so, the class action defendant ups the stakes on protracted litigation by threatening the plaintiff with the prospect of Rule 68’s cost-shifting provision.  That is, if the judgment ultimately obtained by the plaintiff is not more favorable than the unaccepted offer of judgment, the plaintiff might be required to pay post-offer costs incurred by the defendant.  A Rule 68 offer packs an additional punch in the context of class action litigation. Class action defendants in some jurisdictions can argue that an offer of judgment in full satisfaction of the class representative’s claims operates to deprive the court of an active case or controversy, thereby mooting the plaintiff’s individual claims, and, in some cases, the claims of the putative class.    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.