Showing 12 posts by Susan Grogan Faller.
The United States District Court for the Southern District of Ohio recently ruled
against a monthly purchaser of vodka who brought suit on behalf of herself and
class members on several claims, including class claims under the Ohio Consumer
Sales Practices Act and the Ohio Deceptive Trade Practices Act. Read More ›
Court Certifies Class Action of ATM Users After Sixth Circuit Faults Use Of Business Records Hearsay Exception For Summary Judgment
The consolidated lawsuit In re Wal-Mart ATM Fee Notice Litigation, No. 2:11-md-02234 (W.D. Tenn.), was filed in 2011 based upon allegations that certain Wal-Mart stores failed to post adequate external fee notices on ATMs located on those store premises. Plaintiffs filed a motion for class certification in February 2013, and the Court granted summary judgment against the six named Plaintiffs on their individual claims in April 2014. On appeal, the Sixth Circuit reversed and remanded because the defendants had failed to authenticate the business records that they relied upon to support summary judgment. Read More ›
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 ›
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 ›
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 (www.alibabagroup.com/en/global/home). 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 ›
Stay Tuned; Cert granted in DIRECTV, Inc. v Imburgia, where class action waiver clause had been found unenforceable
A petition for a writ of certiorari was granted March 23, 2015, in DIRECTV, Inc. v. Amy Imburgia, ___ S.Ct. ___, 83 USLW 3267, 2015 WL 1280237(2015). DIRECTV’s appeal of California decisions that refused to enforce DIRECTV’s contractual arbitration provision and class action waiver is now to be reviewed by the United States Supreme Court. Read More ›
The federal Court of Appeals for the 9th Circuit has reversed the striking of class allegations, where the District Court applied a prior court's dismissal of similar class allegations as a matter of comity. Baker v. Microsoft Corp., No. 12-35946 (9th Cir. 3/18/2015). In so doing, the Court of Appeals held that the application of comity was misplaced because the prior court's analysis had been rejected as a matter of 9th Cir. precedent. Thus, it was an abuse of discretion for the District Court to strike the class allegations at least until a motion for class certification could be considered. Read More ›
December 15, 2014 brought good news for Blue Diamond Growers in a decision of the U.S. District Court for the Northern District of California, which decertified a class. In Werdebaugh v. Blue Diamond Growers, No. 12-CV-02724 (N.D. Cal. 12/15/2014) the Plaintiff brought a class action alleging that he bought his children Defendant’s chocolate almond shelf stable milk product as a healthy “treat” alternative to white dairy milk. But he contended that the purchased product and similar products of Defendant were packaged unlawfully in that he alleged that two label statements were false and misleading with respect to whether the product was all natural and whether it was sweetened with sugar. Read More ›
11th Circuit Rejects Use of Rule 68 Offer of Judgment To Moot Class Actions: "Don't Try This At Home" (in at least some circuits)
Federal courts continue to grapple with procedural limits upon class action claims, balanced against the substantive rights of litigants. In Stein v. Buccaneers Ltd. Partnership, the Court of Appeals reinstated claims based upon alleged violations of the Telephone Consumer Protection Act ("TCPA"). This Court concluded that "a plaintiff's individual claim is not mooted by an unaccepted Rule 68 offer of judgment"; and that even "a proffer that moots a named plaintiff's individual claim does not moot a class action in circumstances like those presented here, even if the proffer comes before the plaintiff has moved to certify a class.' Read More ›
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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.