Gibbons Law Alert

Gibbons Law Alert

Tagged: Class Actions

U.S. Supreme Court Continues Trend of Narrowing Scope of General Jurisdiction Over Foreign Defendants

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Posted in General Litigation

On January 29, 2014

A trend is apparent only in hindsight. It is now reasonably clear that the United States Supreme Court has, over the last several years, restricted access to United States courts by litigants seeking to recover from foreign defendants for alleged wrongdoing outside of the United States. Thus, the Court has reinvigorated the presumption against the extraterritorial application of United States law (Morrison v. National Australia Bank); rejected the argument that foreign subsidiaries of a United States parent corporation would be amenable to suit based on general jurisdiction simply because a small percentage of their goods were continuously shipped to the forum state (Goodyear v. Brown); and held that the presumption against extraterritoriality applies to the Alien Tort Statute (Kiobel v. Royal Dutch Petroleum). Each decision had the effect of narrowing access to United States courts for claims against foreign corporations based upon conduct that took place outside of the United States.

Class Action Defendants Seeking to Eliminate Removal Uncertainty Get Assistance from Seventh Circuit Decision

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Posted in Class Action Defense

On November 6, 2013

In an opinion beneficial to class action defendants, the Seventh Circuit has taken some of the guesswork out of removal by holding that the 30-day period for removing a case to federal court only begins once the defendant has received a pleading or other litigation paper that includes a specific, unequivocal statement that the damages sought meet the jurisdictional amount.

Burden of Demonstrating CAFA Jurisdictional Amount Lowered for Ninth Circuit Defendants

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Posted in Class Action Defense

On November 1, 2013

Following the rule announced in Standard Fire Ins. Co. v. Knowles, the Ninth Circuit has reversed course on the burden borne by defendants seeking to remove under the Class Action Fairness Act (“CAFA”). Now, defendants need only establish the amount in controversy by a preponderance of the evidence. In Rodriguez v. AT&T Mobility Services, the Ninth Circuit was faced with a putative class representative’s waiver of all damages above $5 million. The waiver was designed to avoid removal under the Class Action Fairness Act (“CAFA”), but earlier this year, the Supreme Court held in Standard Fire that such waivers are ineffective. Therefore, the Ninth Circuit vacated the District Court’s order remanding the case to state court and remanded to the District Court for further proceedings.

The Sixth Circuit Reaffirms its Holding in Glazer v. Whirlpool Allowing Plaintiffs with Moldy Washers to Proceed United as a Class

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Posted in Class Action Defense

On October 21, 2013

The litigations involving allegedly defective Whirlpool washing machines are back in the legal headlines with the most recent installment hailing from the Sixth Circuit’s decision in Glazer v. Whirlpool Corp., a decision which—following remand from the Supreme Court of the United States—reaffirmed a prior order certifying a class action lawsuit. The Sixth Circuit’s certification order may, however, face scrutiny from the Supreme Court once again.

Third Circuit Emphatically Enforces Last Year’s Ruling in Marcus on Rule 23(a) Prerequisites

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Posted in Class Action Defense

On October 9, 2013

In Hayes v. Wal-Mart Stores, Inc., the Third Circuit determined that the plaintiff consumer failed to satisfy Rule 23’s ascertainability and numerosity requirements for class actions as articulated in Marcus v. BMW of North America, LLC and remanded the matter to the District Cout so that the plaintiff could address the clarified requirements expressed in Marcus, which was not yet decided at the time of the District Court proceedings in Hayes. By doing so, the Third Circuit demonstrated that it intends to continue vigilantly enforcing Rule 23’s threshold requirements for plaintiffs.

Citing Concepcion, Ninth Circuit Holds that FAA Preempts Montana State Law that Invalidates Mandatory Arbitration Clause

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Posted in Class Action Defense

On August 8, 2013

In Mortensen v. Bresnan Communications, LLC, the plaintiffs filed a putative class action against Bresnan Communications alleging violations of various federal and Montana state laws in connection with targeted advertising that they received as customers of high-speed, broadband Internet service. When signing up for the service, the plaintiffs had entered into a subscriber agreement that contained a mandatory arbitration provision and designated the application of New York law to all disputes. Applying the U.S. Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion, the Ninth Circuit found that the Federal Arbitration Act (“FAA”) preempted a Montana state law that the District Court had relied on to invalidate the mandatory arbitration clause.

Seventh Circuit Allows comScore Privacy Litigation to Proceed as a Class Action

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Posted in Class Action Defense

On August 6, 2013

In what has been dubbed, “the largest privacy class action suit ever,” the Seventh Circuit in Harris v. comScore, Inc., refused interlocutory review of the District Court’s order granting class certification. Although utterly silent as to the basis for denying review under Fed. R. Civ. P. 23(f), the Court of Appeal’s decision is likely to impact future privacy class actions as well as corporate culture as we know it.

Delaware Supreme Court Expands Class Action Tolling

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Posted in Class Action Defense

On August 2, 2013

In a decision that expands the ability of plaintiffs to bring class actions in Delaware, the Delaware Supreme Court in Dow Chemical Corp. & Dole Food Company, Inc. v. Blanco adopted so-called cross-jurisdictional tolling, holding that the statute of limitations as to the claims of individual members of a putative class is tolled while a putative class action on their behalf is pending, regardless of “whether the class action is brought in Delaware or in a foreign court.”

Ford Can’t Halt All Claims in Alleged Defective Fuel Tank Putative Class Action

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Posted in Class Action Defense

On February 14, 2013

In an opinion authored by Judge Debevoise, a federal district court in New Jersey denied Ford Motor Company’s attempt to toss out a putative class action regarding an alleged defect in the fuel tanks of various Ford trucks and vans. In Coba v. Ford Motor Co., Judge Debevoise held that the plaintiffs’ claims of breach of express warranty and breach of the implied covenant of good faith and fair dealing were adequately pleaded based on allegations that Ford knowingly replaced defective fuel tanks with other defective tanks. But Judge Debevoise dismissed, with leave to replead, the plaintiffs’ claims of common law fraud and violations of the New Jersey Consumer Fraud Act because there were no allegations that Ford knew the plaintiffs’ tanks were defective when they were sold.

Third Circuit Finds Waiver of Right to Arbitrate After Ten Months of Litigation

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Posted in Appellate

On February 7, 2013

In its recent opinion in In re: Pharmacy Benefit Managers Antitrust Litigation, the Third Circuit held that a defendant waived its right to arbitration after “actively” and “aggressively” litigating an antitrust dispute for ten months, even though no discovery had taken place. Emphasizing that no one factor is determinative, the Third Circuit’s holding is somewhat of a departure from prior cases finding waiver, which “uniformly featured significant discovery activity in the District Court.”

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