Class Counsel Blog

Showing 28 posts by Stephen E. Embry.

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 ›

Tyson Foods v. Bouaphakeo: A Retreat From Dukes or Just a Spoliation Case?

In March, the Supreme Court decided Tyson Foods v. Bouaphakeo,a much watched case involving the propriety of class certification.

Since the landmark decision in Wal-Mart v. Dukes, lower courts have found ways of restricting the applicability of Dukes and Comcast  v. Behrend in ways to find certification despite the apparent suggestion in Dukes that certification was limited and the notion of trial by formula was discredited. (See our October 2014 post.) Many commentators, including me, thought that Tyson would provide the opportunity for the Court to restrain these lower court interpretations. (See our blog posts of June 2015 and November 2015.) Read More ›

Tyson and the Supreme Court: Much Ado About Nothing?

There is an old maxim in appellate law that higher courts typically look for ways to decide cases on the narrowest of grounds rather than go out of their way to make sweeping changes in the law. That rule certainly seemed in place at the Supreme Court on Tuesday. In the oral argument in the much anticipated Tyson Foods v. Bouaphakeo case, the Court focused not on the broad class action issues that many had hoped, but upon the more narrow issue of representative proof in wage and hour cases. Such proof was validated by the Court some 69 years ago in Anderson v. Mount Clements Pottery Co. 328 U.S. 680 (1946). Read More ›

O’ Standing, Where Art Thou? Robins v. Spokeo Oral Argument

The Supreme Court yesterday heard arguments in Robins v. Spokeo Inc., a key case dealing with standing based solely on statutory violations as opposed to direct harm. Based on the questioning and comments of the justices in this and in another case under a similar statutory scheme, the Court may very well be on the cusp of finding that statutory violations without more no longer supply standing. Read More ›

The Erosion of the Law: Let’s Just Certify a Class...Any Class

“The truth isn't a thing of fact, or reason. It's simply what everyone agrees on.”

- The Wizard in Wicked

In the rush to adopt and simplify class action law by searching for any common issue to certify, more and more courts ignore long-held substantive legal concepts and principles.

On the first day of my first class in law school – which is more years ago than I like to think – I was greeted with a single and clear cut notion: the tort (or claim) of negligence had three necessary elements:

  • The existence of a duty
  • The breach of that duty and
  • Damages caused by the breach.
Read More ›

Opening the Rule 23 Floodgates Redoux: Did Plaintiffs Just Hit the Data Breach Bulls-Eye?

In a short but very sweet ruling for the financial institutions suing Target to recover costs associated with mitigating the gigantic data breach suffered by Target in late 2013, Judge Magnuson certified the financial institutions class on Tuesday September 15.

The litigation of which we have previously written on a couple of occasions (see At Risk: Community Banks and the Recovery of Losses Due to Merchant Data Breach and Opening the Rule 23 Floodgates: Did Plaintiffs just hit the Data Breach Bulls-Eye?) stems from a data breach that impacted more than 100 million customers and cost the financial institutions over 30 million in losses primarily due to the reissuance of some 25,000 debit and credit cards. 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 ›

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 ›

Dow Chemical, Tyson Foods, Wal-Mart and Allstate Insurance: Will SCOTUS Clean Up its Class Action Mess?

Will the Supreme Court reiterate its findings in Dukes and Comcast in 4 cases pending before it? Read More ›

Google Wallet: What’s Your Privacy Really Worth and Do You Have the Class Action Standing to Protect It?

Google Wallet privacy standing decision presents troubling issues. 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.