The Class Action Chronicle – Summer 2014

In This Issue:

– Avoiding Class Certification Through an Offer of Judgment

– CLASS CERTIFICATION DECISIONS:

..Decisions Granting Motions to Strike

..Decisions Denying Motions to Strike

..Decisions Rejecting/Denying Class Certification

..Decisions Permitting/Granting Class Certification

..Other Class Certification Decisions

– CLASS ACTION FAIRNESS ACT DECISIONS:

..Decisions Denying Motions to Remand/Reversing Remand Orders/Finding CAFA Jurisdiction

..Decisions Granting Motion to Remand/ Finding No CAFA Jurisdiction

– Excerpt from Avoiding Class Certification Through an Offer of Judgment:

At least in some circuits, offers of judgment have traditionally afforded defendants an escape hatch from class litigation in federal court. Shortly after a suit was filed, a defendant could moot the individual plaintiff’s claim and extinguish the putative class by offering the plaintiff all of the individual relief he or she sought in an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure. Even if the plaintiff declined the offer, the court would dismiss the case on the ground that the offer to make the plaintiff whole eliminated the controversy between the parties, depriving the court of jurisdiction. As one court explained, such an offer “eliminates a legal dispute upon which federal jurisdiction can be based,” because “[y]ou cannot persist in suing after you’ve won.” Greisz v. Household Bank (Ill.), N.A., 176 F.3d 1012, 1015 (7th Cir. 1999)…

Please see full publication below for more information.

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CONTENTS
AvOIDINg CLASS CERTIFICATION
ThROugh AN OFFER OF JuDgMENT 1
CLASS CERTIFICATION DECISIONS
Decisions granting Motions to Strike . . . . . . . . 3
Decisions Denying Motions to Strike . . . . . . . . 4
Decisions Rejecting/Denying Class
Certification . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Decisions Permitting/granting Class
Certification . . . . . . . . . . . . . . . . . . . . . . . . . 13
Other Class Certification Decisions . . . . . . . . 18
CLASS ACTION FAIRNESS ACT DECISIONS
Decisions Denying Motions to Remand/
Reversing Remand Orders/
Finding CAFA Jurisdiction . . . . . . . . . . . . . . 18
Decisions granting Motion to Remand/
Finding No CAFA Jurisdiction . . . . . . . . . . . 22
CONTRIBuTORS 27
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(continued on next page)
The Class Action
Chronicle
summer 2014
the Class Action Chronicle | 2
But one point that was relatively settled until recently was
that an offer of judgment that undeniably offered the plain-
tiff all the relief he sought would moot his case whether
the plaintiff accepted it or not. That is no longer the case
in the wake of the u.S. Supreme Court’s split decision last
Term in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct.
1523 (2013).
Genesis Healthcare involved a collective action under the
Fair Labor Standards Act. The district court dismissed the
case for lack of subject-matter jurisdiction after the defen-
dant tendered a Rule 68 offer that fully satisfied the named
plaintiff’s claims, concluding that both the individual claims
and the collective action claims were rendered moot by
the offer. Id. at 1524. The u.S. Court of Appeals for the
Third Circuit reversed. Although the court of appeals
agreed that the named plaintiff’s claims were moot, the
court held that the collective action was not. Id. at 1524-
25. The u.S. Supreme Court disagreed. In reaching its
decision, however, the Court simply assumed — without
deciding — that the Rule 68 offer mooted the plaintiff’s
individual claims, concluding that the issue had not been
preserved. Id. at 1529. The majority’s opinion then focused
on whether the plaintiff’s action “remained justiciable
based on the collective-action allegations in her complaint”
and concluded that it did not. Id. at 1528-29.
In a vigorous four-justice dissent, Justice Elena Kagan
criticized the Court for proceeding to resolve “an imaginary
question” rather than “correcting the Third Circuit’s view
that an unaccepted settlement offer mooted [the plaintiff]’s
claim.” Id. at 1532, 1537 (Kagan, J., dissenting). The
dissent characterized the Third Circuit’s resolution of this
issue as “wrong, wrong, and wrong again.” Id. at 1533.
Relying on both basic principles of contract law as well as
the plain language of Rule 68, Justice Kagan asserted that
“an unaccepted offer of judgment cannot moot a case.”
Id. According to the Justice, “[a]n unaccepted settlement
offer – like any unaccepted contract offer – is a legal nullity,
with no operative effect,” id., and “[a]s every first-year law
student learns, the recipient’s rejection of an offer leaves
the matter as if no offer had ever been made.” Id. at 1533-
34 (internal quotation marks and citation omitted). Justice
Kagan then explained that “[n]othing in Rule 68 alters that
basic principle; to the contrary, that rule specifies that ‘an
unaccepted offer is considered withdraw.’” Id. at 1534
(quoting Fed. R. Civ. P. 68(b)). She thus advised the Third
Circuit to “[r]ethink [its] mootness-by-unaccepted-offer
theory” and warned the other courts of appeals, “Don’t try
this at home.” Id.
Shortly thereafter, the u.S. Court of Appeals for the Ninth
Circuit took Justice Kagan’s advice to heart. In Diaz v. First
American Home Buyers Protection Corp., 732 F.3d 948,
954-55 (9th Cir. 2013), the Ninth Circuit — after quoting
extensively from the Genesis Healthcare dissent and
expressing its conviction that “Justice Kagan has articulated
the correct approach” — held that “an unaccepted Rule 68
offer that would have fully satisfied a plaintiff’s claim does
not render that claim moot.” Id. The court concluded that
its holding was “consistent with the language, structure
and purposes of Rule 68 and with fundamental principles
governing mootness.” Id. at 955. Other courts have also
accepted this approach, see, e.g., Church v. Accretive
Health, Inc., No. 14-0057-WS-B, 2014 WL 1623787 (S.D.
Ala. Apr. 24, 2014) (summarized on page 7); Yaakov v.
ACT, Inc., No. 12-40088-TSh, 2013 WL 6596720 (D.
Mass. Dec. 16, 2013), pet. for interlocutory review filed,
and the question is pending before still other courts, see,
e.g., Keim v. ADF Midatlantic LLC, No. 13-13619 (11th Cir.)
(appeal pending). By contrast, some courts have declined
to follow Justice Kagan’s approach, citing prior circuit
precedent. See, e.g., Hanover Grove Consumer Hous.
Coop. v. Berkadia Commercial Mortg., LLC, No. 13-13553,
2014 u.S. Dist. LEXIS 11918, at *15, *17 n.3 (E.D. Mich.
Jan. 31, 2014) (“[a]lthough the Court sees Justice Kagan’s
dissent in genesis healthcare as the right decision, it is
limited with binding Sixth Circuit precedent”; “[b]ecause
defendant’s Rule 68 Offer of Judgment covered all of
plaintiff’s individually requested relief, the claims effec-
tively became moot”); Bank v. Spark Energy Holdings LLC,
No. 4:11-Cv-4082, 2013 WL 5724507, at *2 (S.D. Tex. Oct.
18, 2013) (noting that the u.S. Supreme Court declined to
resolve the issue in Genesis Healthcare; “[t]hus this Court
will continue to follow Fifth Circuit precedent”).
The upshot is that the viability of using an offer of judg-
ment to attempt to moot a class action depends more
than ever before on the venue. As the ripples from Justice
Kagan’s dissent have been quick to make their way through
the lower courts, it may not be long before the u.S.
Supreme Court returns to the question left open in Genesis
Healthcare and brings some much needed clarity in this
area. until that happens, practitioners will likely find that
they can in fact “try this at home” in at least some circuits.
the Class Action Chronicle | 3
ClAss CertifiCAtion deCisions
decisions granting motions to strike
Sauter v. CVS Pharmacy, Inc., no. 2:13-cv-846,
2014 Wl 1814076 (s.d. ohio may 7, 2014).
In a lawsuit alleging that CvS violated the Telephone
Consumer Protection Act (TCPA), Judge James L. graham
of the u.S. District Court for the Southern District of Ohio
granted CvS’s motion to strike the class allegations. The
plaintiff proposed a class of individuals who received calls
even though they did not provide prior consent. Because
the TCPA prohibits using automated dialers to call cell
phones without the phone owner’s express consent, the
court held that the class definition was impermissibly
“fail-safe”: the only members of the class (and thus the
only individuals bound by a judgment) would be those
individuals who could establish a TCPA violation. The court
gave the plaintiff leave to file an amended complaint with
revised class definitions.
Alqaq v. CitiMortgage, Inc., no. 13 C 5130,
2014 Wl 1689685 (n.d. ill. Apr. 29, 2014).
Judge William T. hart of the u.S. District Court for the
Northern District of Illinois granted the defendant’s motion
to strike class allegations in a putative class action against
a group of mortgagees for making threats to dispossess
the class members’ homes and for dispossessing their
homes before court orders had awarded possession.
The court held that “resolution of the issues in this case
will require individual inquiry into each purported class
member’s circumstances,” such as “What harm occurred?
Was the property entered? Were locks changed? Did such
conduct occur prior to the mortgagee obtaining possession
and/or the property being vacated? Who committed the
acts?” Accordingly, questions of law and fact common to
the class members would not predominate over questions
affecting individual members.
Monteleone v. Auto Club Group Memberselect
Ins. Co., no. 13-Cv-12716, 2014 Wl
1652219 (e.d. mich. Apr. 23, 2014).
Judge george Caram Steeh of the u.S. District Court
for the Eastern District of Michigan granted in part the
defendants’ motion to deny class certification, which was
in essence a motion to strike that was filed jointly with
a motion to dismiss. The plaintiffs sued their insurer and
another defendant after their basement flooded and the
insurer declined to pay the full extent of the claim. The
plaintiffs’ central theory was that the defendants had
adopted an unlawful policy of denying claims of water
damage whether legitimate or not. The plaintiffs asserted
the existence of two putative classes of policyholders: indi-
viduals who made water-related property damage claims
and received less than $10,000 (the “property damage”
class); and a “premium” class of individuals who alleg-
edly overpaid for homeowners’ insurance (because the
defendants allegedly conflated the coverage available for
water damage caused by overflows with the more limited
coverage for similar damage caused by backups). The court
granted the motion to deny class treatment of the “prop-
erty damage” class, explaining that the individual question
of whether coverage existed for each policyholder would
predominate over any common questions, even if the
plaintiffs could prove the alleged uniform policy of denying
coverage. The defendants’ motion to deny certification
of the overpaid-premium claims, however, was denied
without prejudice because their argument was based on an
affidavit that created a factual dispute (about whether the
defendants in fact conflate the types of coverage).
Trunzo v. CitiMortgage, no. 2:11-cv-01124,
2014 Wl 1317577 (W.d. Pa. mar. 31, 2014).
Judge Mark R. hornak of the u.S. District Court for the
Western District of Pennsylvania granted in part and denied
in part mortgagees’ motions to strike class in a putative
class action challenging the collection of payments due
under the plaintiffs’ mortgage and associated note. The
court granted defendant Citi’s motion to strike, finding that
the plaintiffs could not proceed with a Rule 23(b)(2) class
because their amended complaint did not seek injunctive
or declaratory relief, and they could not proceed with a
Rule 23(b)(3) class because individualized issues of causa-
tion regarding each putative class member’s loan would
predominate over common issues. The court declined to
strike the class allegations asserted against the other two
defendants, rejecting their arguments that unique defenses
made the named plaintiffs atypical and that the class was
overbroad. According to the court, these arguments were
more properly asserted at the class certification stage and
not on the pleadings.
Ryan v. Jersey Mike’s Franchise Systems,
no. 13-Cv-1427-Ben (Wvg), 2014 Wl 1292930
(s.d. Cal. mar. 28, 2014).
Judge Roger T. Benitez of the u.S. District Court for the
Southern District of California granted the defendants’
“motion to deny class certification” — which was similar
in form to a motion to strike in that it was filed before class
discovery was completed and before the deadline for the
plaintiff’s motion for class certification. The plaintiff alleged
violations of the Telephone Consumer Protection Act and
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the Class Action Chronicle | 4
California statutory law and sought class certification of
a nationwide class of all persons “who were sent one or
more unauthorized text message advertisements” by the
defendants. however, the plaintiff did not conclusively
assert whether he had provided his phone number to the
defendants, thereby giving them consent. Because the
question of consent was critical to the plaintiff’s federal
and state law claims, the court deemed the plaintiff to be
atypical of the class and concluded that “class action treat-
ment [was] inappropriate” pursuant to Rule 23(a).
Buonomo v. Optimum Outcomes, Inc.,
no. 13-cv-5274, 2014 Wl 1013841
(n.d. ill. mar. 17, 2014).
Judge Amy J. St. Eve of the u.S. District Court for the
Northern District of Illinois granted in part and denied in
part the defendant’s motion to strike class allegations
in a case alleging that the defendant made unauthor-
ized calls to class members’ cell phones in violation of
the Telephone Consumer Protection Act. The court first
held that the plaintiff’s proposed class was overbroad
because it included individuals, like the plaintiff, who
received “wrong party” calls on their cell phones – i.e.,
calls trying to reach the debtor who had previously been
assigned to that cell phone number — as well as actual
debtors. Accordingly, the court held that the plaintiff would
be required to amend his proposed class definition to
a narrower, “wrong party” class. As to the defendant’s
challenges based on ascertainability, commonality and
predominance, the court held that such attacks were
premature and that the plaintiff must have the opportunity
to conduct discovery before the court determined whether
the claims were susceptible to generalized proof.
Wolfkiel v. Intersections Insurance Services Inc.,
no. 13 C 7133, 2014 Wl 866979 (n.d. ill. mar. 5, 2014).
Judge James B. Zagel of the u.S. District Court for the
Northern District of Illinois granted in part and denied in
part the defendant’s motion to strike class allegations in a
case alleging that the defendant made unsolicited market-
ing phone calls in violation of the Telephone Consumer
Protection Act. The plaintiffs brought claims on behalf
of two classes: (i) individuals who received marketing
calls from the defendant who expressly revoked consent
(the Revocation Class) and (ii) individuals who received
marketing phone calls from the defendant who never
consented (the No-Consent Class). The court held that the
Revocation Class failed to satisfy Rule 23(b)’s predomi-
nance requirement because determining whether class
members had revoked consent would require individual
inquiries. But the court did not find a similar problem with
the No-Consent Class, focusing on the allegation that all
of the putative class members purchased a product from
one seller and then allegedly received calls from another
seller about an entirely different product, making it reason-
able to infer that the putative class members had not
consented to receive calls. Accordingly, the court granted
the defendant’s motion to strike the allegations relating to
the Revocation Class, but denied the motion to strike the
allegations relating to the No-Consent Class.
decisions denying motions to strike
Humphreys v. Budget Rent A Car System, Inc.,
no. 10-cv-1302, 2014 Wl 1608391
(e.d. Pa. Apr. 22, 2014).
Judge Lawrence F. Stengel of the u.S. District Court for
the Eastern District of Pennsylvania denied the defen-
dants’ motion to strike class allegations in a case arising
out of a dispute over alleged damage to a car the plaintiff
rented from Budget. Initially, the court noted that it was
disinclined to strike class allegations before discovery
produces information necessary to perform a rigorous
analysis. This was particularly true because the allegations
in the plaintiffs’ complaint demonstrated that the require-
ments of class certification could be met. Budget had over
2,500 car rental locations, used standardized provisions
in its rental contract and used standardized formulas for
determining damage amounts. As such, there was nothing
on the face of the pleadings to indicate that the case was
“one of those rare instances” when class allegations
should be stricken prior to discovery.
Wilson v. Consolidated Rail Corp. (In re Paulsboro
Derailment Cases), no. 13-784 (rBK/KmW),
2014 u.s. dist. leXis 48209 (d.n.J. Apr. 8, 2014).
Judge Robert B. Kugler of the u.S. District Court for the
District of New Jersey denied a motion to strike class
allegations in a suit brought by plaintiffs who allegedly suf-
fered economic losses as a result of a train derailment and
chemical spill in New Jersey. The defendants argued that
the class was not ascertainable and that joinder was in fact
practicable. With regard to ascertainability, the defendants
relied on a line of cases denying class certification where
there was no objective proof of class membership. The
court found these cases distinguishable in two respects.
For one thing, those cases involved motions for class cer-
tification — not motions to strike class allegations. Further,
the court reasoned that ascertaining class membership
would be relatively easy and verifiable: “The area affected
by the chemical spill may be shown by discovery to be
discrete, the applicable time frame is well established in
the pleading, and purported class members either resided
or did business within delineated areas or they did not.”
The court also refused to strike the class allegations on
the ground that joinder of approximately 600 or more class
members would be practicable. According to the court,
such an inquiry would be better suited for resolution after
the parties conducted discovery regarding the size of class
and damages.
the Class Action Chronicle | 5
James D. Hinson Electrical Contracting Co.
v. AT & T Servs., Inc., no. 3:13-cv-29-J-32JrK,
2014 Wl 1118015 (m.d. fla. mar. 20, 2014).
Judge Timothy J. Corrigan of the u.S. District Court for the
Middle District of Florida denied the defendants’ motion to
strike class allegations in a suit asserting claims for unjust
enrichment and statutory fraud on behalf of a nationwide
class with four subclasses. The plaintiffs — excavators
who had damaged facilities maintained by the defendants
— alleged that although they were required to pay repair
costs under state statutes like the Florida underground
Facility Damage Prevention and Safety Act, the defendants
improperly tacked on charges for loss of use and installa-
tion of marker balls. The defendants argued that variations
in state law on unjust enrichment and on the permissible
recovery for underground facilities made certification of
the national class impossible under Rule 23(b)(3). The
court held that any determination as to whether there
are material conflicts among the states’ laws would be
premature. As it explained, “[d]epending on how discovery
develops, material differences among the state statutes
may fall away or at least become more manageable.”
Accordingly, the court directed the parties to engage in
class discovery so that it could decide whether class cer-
tification was possible on a more fully developed record.
McPherson v. Canon Business Solutions, Inc.,
no. 12-7761 (JBs/Amd), 2014 Wl 654573
(d.n.J. feb. 20, 2014).
Judge Jerome B. Simandle of the u.S. District Court for
the District of New Jersey denied the defendant’s motion
for partial summary judgment or, in the alternative, to
strike the class definition. The plaintiff alleged that Canon
Business Solutions violated the Fair Credit Reporting
Act (FCRA) when it terminated her employment based
on information received in a criminal background report
without first providing her with proper disclosure or an
opportunity to dispute the accuracy of the information. The
plaintiff proposed claims on behalf of a class of employees
and applicants who suffered similar adverse employment
actions by Canon within the previous five years. The FCRA
permits plaintiffs to bring claims not later than the earlier
of (i) two years after the date of discovery of the violation
by the plaintiff or (ii) five years after the date on which the
violation occurs. The defendant took issue with including
claims arising before the immediately preceding two-year
period because individual issues would predominate over
common issues as the court would have to engage in
“individual mini-trial[s]” to determine when that person
discovered her alleged FCRA violation. The court denied
the defendant’s motions, finding that Rule 23 issues
should only be decided before a motion for certification
where it is clear, “as a matter of law,” that the plaintiff’s
class allegations must fail. The court concluded that doing
so here would be premature and the plaintiff was entitled
to reasonable discovery to support her class claims.
Shamblin v. Obama For America
no. 8:13-cv-2428-t-33tBm, 2014 Wl
631931 (m.d. fla. feb. 18, 2014).
Judge virginia M. hernandez Covington of the u.S.
District Court for the Middle District of Florida denied a
motion to strike class allegations in a case alleging that
defendant Obama for America violated the Telephone
Consumer Protection Act by targeting voters’ cell phones
with unsolicited, auto-dialed calls and pre-recorded
messages. The court explained that the issue of “[w]
hether Plaintiff’s claim deserves class treatment is a
fact-dependent inquiry unsuitable for a motion to dis-
miss or strike.” The court noted that motions to strike
are drastic measures, disfavored by the courts, and
more appropriately presented at the Rule 23 stage.
decisions rejecting/denying Class Certification
Bussey v. Macon County Greyhound Park, Inc.,
— f. App’x —-, 2014 Wl 1302658
(11th Cir. Apr. 2, 2014).
On appeal from the u.S. District Court for the Middle
District of Alabama, the u.S. Court of Appeals for the
Eleventh Circuit (hull, Black and Smith, JJ.) reversed Chief
Judge W. Keith Watkins’s grant of class certification. The
plaintiffs, electronic bingo players, sued a gaming park
and the manufacturers of electronic bingo machines,
alleging that operation of the machines constituted illegal
gambling activity and seeking money lost while playing
the machines during the six months preceding the law-
suit. The defendants opposed certification, arguing that
determining damages was an individualized inquiry despite
the loyalty card program in which the players participated
because players used each other’s loyalty cards and some
players loaned their cards to friends to accumulate extra
points. The district court rejected these arguments and
granted certification, holding that the presence of individu-
alized damages issues does not defeat the predominance
requirement, and that any “shortcomings of the data”
should be addressed at the merits stage. The Eleventh
Circuit reversed, relying on Comcast Corp. v. Behrend, 133
S. Ct. 1426 (2013). According to the court, under Comcast,
“class certification is an evidentiary question, not just an
analysis of the pleadings.” The district court’s “fail[ure] to
conduct the ‘rigorous analysis’ required by” Comcast could
not be overlooked because the shortcomings in the loyalty
card data were significant and bore directly on the issue of
predominance. The court also noted that the plaintiffs had
not identified any method for quantifying their losses at the
game level, as opposed to the session level, even though
their complaint sought recovery of game-level losses.
the Class Action Chronicle | 6
Algarin v. Maybelline, LLC, no. 12cv3000 AJB (dhB),
2014 Wl 1883772 (s.d. Cal. may 12, 2014).
Judge Anthony J. Battaglia of the u.S. District Court for
the Southern District of California denied certification of a
class of consumers seeking monetary and injunctive relief
under California consumer-protection laws for alleged
misrepresentations regarding the “long-wearing” nature of
SuperStay makeup products. The court concluded that the
class was overbroad because it did not exclude purchasers
who received refunds and difficult to ascertain because
Maybelline did not keep purchaser lists, and it was unlikely
that purchasers had retained any proof of purchase. Judge
Battaglia also found commonality and typicality lacking
because a substantial number of class members were
not misled by the claim that the makeup would last for 24
hours. Finally, Judge Battaglia held that the plaintiffs’ dam-
ages model was speculative.
Montgomery v. Kraft Foods Global, Inc.,
no. 1:12-Cv-00149, 2014 Wl 1875022
(W.d. mich. may 9, 2014).
Judge gordon J. Quist of the u.S. District Court for the
Western District of Michigan denied certification in a case
involving allegedly deceptive coffeemaker packaging. The
plaintiff alleged that the machine’s packaging continued
promoting its ability to brew Starbucks coffee for some
period of time after Starbucks stopped providing sup-
plies to create Starbucks-branded brewing packages. The
court denied certification for lack of commonality and
predominance. According to the court, the plaintiff had not
produced any evidence that the proposed class members
were influenced by the Starbucks representation, whereas
the defendant pointed to market research showing that
consumers purchased the machine for reasons unrelated
to the Starbucks representation. Further, individualized
damages calculations would overwhelm any questions
common to the class because the machine did perform its
essential function of brewing coffee, and each individual’s
alleged damages would therefore depend on the value that
individual placed on having a coffeemaker that could brew
Starbucks coffee in particular.
Paulino v. Dollar Gen. Corp., no. 3:12-Cv-75,
2014 u.s. dist. leXis 64233 (n.d. W. va. may 9, 2014),
23(f) pet. pending.
Judge gina M. groh of the u.S. District Court for the
Northern District of West virginia denied the plaintiff’s
motion for class certification in a suit alleging that the
defendants violated the West virginia Wage Payment and
Collection Act (WPCA) when they failed to pay the plaintiff
her wages in full within 72 hours of her termination. The
plaintiff sought to certify a class of all “former employees
who were terminated within five years of the filing of suit
and not timely paid, or, in the alternative, not paid the liq-
uidated damages and interest as required by the WPCA.”
The court declined to certify the class for several reasons.
The court first determined that the proposed class amount-
ed to an impermissible “fail safe” class because it would
have to analyze the “merits” of each class member’s
claim just to determine whether he or she was part of the
class. The court also held that predominance was lacking
because it would need to determine whether each class
member was discharged under the meaning of the WPCA,
which would involve highly individualized evidence — for
example, the time and date of the discharge and the date
of payment of final wage.
Legg v. Voice Media Group, Inc.,
no. 13-62044-Civ-Cohn/seltZer, 2014 u.s. dist.
leXis 61836 (s.d. fla. may 5, 2014).
Judge James I. Cohn of the u.S. District Court for the
Southern District of Florida denied a motion for class
certification in a suit challenging a defendant company’s
alleged practice of sending unwanted text messages to
individuals throughout the country. The plaintiff had once
subscribed to the defendant’s alert service, but then
allegedly unsubscribed by texting the phrase “STOP ALL”
to the defendant. The plaintiff asserted a claim under the
Telephone Consumer Protection Act and sought to repre-
sent a class of Florida cellular telephone subscribers with
various area codes who attempted to unsubscribe from
receiving text messages from the defendant, but were
subsequently sent such messages. The court denied the
motion for class certification on multiple grounds. First,
the court held that the class did not satisfy the numerosity
requirement because the claim that the class included at
least 1,026 individuals was based exclusively on expert
evidence that had previously been excluded by the court.
(The court had previously excluded that evidence because
it “lack[ed] a foundation, [was] speculative, and dr[ew] on
no special expertise.” Legg v. Voice Media Grp., Inc., No.
13-62044-CIv-COhN/SELTZER, 2014 u.S. Dist. LEXIS
61322, at *11 (S.D. Fla. May 2, 2014).) The court went
on to explain that, even if it had not excluded that expert
evidence, its conclusion with respect to numerosity would
not change because the 1,026 figure was based on the
total number of “Stop All” messages that were sent to
the defendant rather than the number of individuals who
continued to receive unwanted texts after sending the
“Stop All” message.
Ticknor v. Rouse’s Enterprises, LLC, no. 12-1151,
12-2964, 2014 Wl 1764738 (e.d. la. may 2, 2014).
Judge Susie Morgan of the u.S. District Court for the
Eastern District of Louisiana denied the plaintiffs’ motion
to certify a class. The plaintiffs alleged that the defendant
failed to properly truncate the plaintiffs’ credit card informa-
tion as required by the Fair and Accurate Transaction Act
(continued on next page)
the Class Action Chronicle | 7
(FACTA). The court found that the plaintiffs were unable
to establish that common questions of fact predominated.
Specifically, the court noted that in order to recover under
FACTA, each class member would have to show that he
or she was a “consumer,” a “cardholder,” and received a
receipt from the defendant’s store, requiring individualized
inquiries. The court also noted that the plaintiffs had effec-
tive alternatives for obtaining relief because FACTA permits
plaintiffs to recover attorneys’ fees, reducing the risk that
individual plaintiffs would be deterred from bringing FACTA
claims due to the high costs of litigation.
Miri v. Clinton, no. 11-15248, 2014 Wl 1746403
(e.d. mich. may 1, 2014).
Nancy g. Edmunds of the u.S. District Court for the
Eastern District of Michigan granted a motion to decertify
a class after dismissing claims for injunctive relief in an
action asserting claims for alleged violations of 42 u.S.C.
§ 1983 against the Michigan state treasurer and two
Michigan state troopers. The court had previously certified
a class of individuals and businesses who were subjected
to searches or seizures of their property by the Michigan
state treasurer that were not consented to and not judicially
approved. On the defendants’ motion, the court subse-
quently dismissed the injunctive-relief claims because the
class was not under an imminent threat of repeated Fourth
Amendment violations. Of the 162 class members, only
11 class members had viable damages claims against the
defendants, because the putative damages claims of the
other class members were barred by the statute of limita-
tions. Because those 11 class members were all local and
their identities were “easily ascertainable,” joinder of those
11 class members was not impracticable. Consequently,
the court decertified the class. (Judge Edmunds’ initial
order granting class certification is discussed in the Fall
2013 issue of the Chronicle on page 16.)
Medina v. Public Storage, Inc., no. 12 C 00170,
2014 Wl 1715517 (n.d. ill. Apr. 30, 2014).
Judge John J. Tharp, Jr. of the u.S. District Court for the
Northern District of Illinois denied class certification in a
case alleging that the defendant wrongly denied insurance
coverage for items that were stolen from self-storage
units rented from the defendant. Specifically, the plaintiff
sought certification of a class in connection with her claim
that the insurance policy’s definition of burglary as requir-
ing visible signs of “forcible entry” was unconscionable.
The court, however, concluded that the plaintiff’s claims
were not typical of the class because the plaintiff was
unable to prove that her storage unit was locked at the
time of the theft.
Alberton v. Commonwealth Land Title Insurance Co.,
no. 06-3755, 2014 Wl 1643705 (e.d. Pa. Apr. 24, 2014),
23(f) pet. pending.
The defendants in this class action alleging overcharges
for title insurance in violation of the Title Insurance Rating
Bureau of Pennsylvania Manual (the TIRBOP Manual)
moved to decertify the class based on changes in both the
procedural law governing class actions and the substantive
law underlying the claim in the six years since the initial
certification of the class. In particular, the u.S. Supreme
Court’s ruling in Wal-Mart Stores, Inc. v. Dukes, 131 S.
Ct. 2541 (2011), clarified that Rule 23(a)’s commonality
requirement requires more than simply identifying some
common questions. Instead, plaintiffs must establish
that class members have suffered the same injury. The
stricter interpretation of commonality (and similarly,
typicality), combined with changes in the interpretation
of the TIRBOP Manual, led the court to grant the motion
for decertification. Judge Eduardo C. Robreno of the u.S.
District Court for the Eastern District of Pennsylvania held
that the plaintiffs failed to satisfy the commonality and
typicality requirement because the court would need to
determine, on a plaintiff-by-plaintiff basis, whether the
proper discount rate was applied.
Church v. Accretive Health, Inc., no. 14-0057-Ws-B,
2014 Wl 1623787 (s.d. Ala. Apr. 24, 2014).
Chief Judge William h. Steele of the u.S. District Court
for the Southern District of Alabama denied the plaintiff’s
motion for class certification in a case alleging violations
of the Fair Debt Collection Practices Act. Before the
defendant filed its responsive pleading or formal discovery
commenced, the plaintiff filed simultaneously a barebones
motion for class certification and a motion to stay con-
sideration of that motion until class discovery had taken
place. The concern that prompted the plaintiff to file the
motion for class certification so early was the u.S. Court
of Appeals for the Seventh Circuit’s rule that a defendant
could “‘render moot a possible class action by offering to
settle for the full amount of the plaintiff’s demands before
the plaintiff files a motion for class certification.’” This rule
“spawned fears” that “defendants might ‘pick off’ . . . a
putative class representative via unaccepted offer of judg-
ment, thereby mooting a class action before the plaintiff
had been able to complete the necessary discovery to file
a Rule 23 motion.” The court held that this concern “might
be compelling” in the Seventh Circuit, but such a rule
“recently faced a withering attack from four u.S. Supreme
Court Justices in Genesis Healthcare Corp. v. Symczk,
133 S. Ct. (Kagan, J., dissenting).” Because the plaintiff’s
“straight-out-of-the-chute” motions could not advance her
case, but would only impose administrative costs, both
motions were denied as premature.
the Class Action Chronicle | 8
In re Skelaxin (Metaxalone) Antitrust Litig.,
no. 1:12-md-2343, 2014 Wl 1623705
(e.d. tenn. Apr. 23, 2014).
Judge Curtis L. Collier of the u.S. District Court for the
Eastern District of Tennessee denied the plaintiffs’ motion
for reconsideration of his order denying class certification
in a case claiming that pharmaceutical manufacturers
violated antitrust laws by allegedly conspiring to delay
generic competition. The court previously ruled that the
proposed class of consumers and end payors was not
ascertainable because determining whether an entity
incurred an increased price for the branded drug due to
the lack of generic competition in a given transaction
would depend on whether the end payor had a price-
sharing arrangement with a pharmacy benefit manager
or welfare plan. In seeking reconsideration, the plaintiffs
highlighted an industry expert’s declaration, attached to
their sur-sur-reply, which would have allegedly altered
the court’s analysis if properly considered. The court
rejected this argument because it had already considered
the declaration in its original opinion, and the declara-
tion was duplicative of other evidence the plaintiffs had
presented. The court also rejected the plaintiffs’ argument
that it should have, as an alternative, certified a consumer-
only class. None of the named plaintiffs were individual
consumers; the named plaintiffs had never sought to
certify a consumer-only class; and since the time for filing
motions for class certification had passed, there would be
little judicial economy realized by reconsidering the order
to create a new class, which would presumably require
additional briefing and discovery. (Judge Collier’s initial
order denying class certification is discussed in the Spring
2014 issue of the Chronicle on page 5.)
Yordy v. Plimus, Inc., no. 12-cv-00229-teh,
2014 Wl 1466608 (n.d. Cal. Apr. 15, 2014).
Judge Thelton E. henderson of the u.S. District Court
for the Northern District of California denied a renewed
motion for certification of a narrower class of purchas-
ers who purportedly paid a fee processed by defendant
Plimus for “unlimited downloads” of media titles at three
“unlimited Download Websites” (uDWs), but received
content that violated copyright law or was already available
for free. (The previous order denying class certification
involving 19 different websites was summarized in the
Winter 2013 issue of the Chronicle on page 6.) In sup-
port of the renewed bid, the plaintiff argued that there
were common questions to the class, including, inter
alia, whether Plimus knew that the products offered by
the uDWs were fraudulent but failed to suspend them
or demand changes. The court held, however, that the
answer to such a question would have no bearing on the
validity of the plaintiff’s claim against Plimus as required
by Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).
This is because the plaintiff’s causes of action — includ-
ing those under California’s False Advertising Law,
Consumer Legal Remedies Act and unfair Competition
Law — require that a defendant directly participate in the
alleged unlawful activity, and thus the question whether
Plimus knew of the uDW’s fraud was “not central” to
Plimus’s liability. Moreover, the court also concluded that
the plaintiff could offer “no evidence that Plimus operated
in [a] similar manner with respect to all three websites
such that its liability [could] be assessed as to all three
websites together” or that Plimus’s involvement with the
allegedly false advertising was common across all uDWs.
For these reasons, commonality could not be satisfied.
Caldera v. J.M. Smucker Co.,
no. Cv 12-4936-ghK (vBKX),
2014 Wl 1477400 (C.d. Cal. Apr. 15, 2014).
The plaintiff sought certification of four classes of con-
sumers alleging violations of various California consumer
protection statutes and breaches of implied and express
warranties based on allegedly misleading packaging imply-
ing that certain products were healthy when in fact they
contained trans-fats and/or high fructose corn syrup. Chief
Judge george h. King of the u.S. District Court for the
Central District of California refused to certify monetary
relief classes under Rule 23(b)(3) because the plaintiff had
no classwide proof to support her claim for restitution.
According to the court, the California sales data offered by
the plaintiff was insufficient because “[r]estitution based
on a full refund would only be appropriate if not a single
class member received any benefit from the products,”
and the evidence showed some class members received
some benefit. The court also held that “restitution may
be proven on a classwide basis by computing the effect
of unlawful conduct on the market price of the product
purchased by the class,” but that the plaintiff failed to
introduce any such evidence, which would vary anyway,
depending on individual consumer motivation.
Gomez v. Kroll Factual Data, Inc.,
no. 13-cv-0445-WJm-Kmt, 2014 Wl 1456530
(d. Colo. Apr. 14, 2014).
Judge William J. Martinez of the u.S. District Court for
the District of Colorado denied certification of a class of
consumers seeking statutory damages for negligent and
willful violations of the Fair Credit Reporting Act (FCRA).
According to the court, the allegedly common issue of
the reasonableness of the defendant’s procedures did not
predominate because “[t]he success of the class mem-
bers’ claims will depend on several issues that must be
determined individually: (1) whether the credit report was
inaccurate; and (2) whether Defendant willfully failed to
comply with the FCRA.”
the Class Action Chronicle | 9
In re Photochromic Lens Antitrust Litig.,
no. 8:10-md-02173-t-27eA, 2014 Wl 1338605
(m.d. fla. Apr. 3, 2014).
Judge James D. Whittemore of the u.S. District Court for
the Middle District of Florida denied a motion for class cer-
tification in a multi-district litigation proceeding involving
antitrust claims brought by three groups of direct purchas-
ers, alleging that the defendant engaged in anticompetitive
conduct in the development, manufacture and sale of
photochromic treatments for corrective ophthalmic lenses.
The court found that the plaintiffs had not sustained
their burden of demonstrating that the named plaintiffs
would adequately represent the absent class members.
Specifically, the court found the potential for fundamental
conflicts within the class between those class members
who benefitted from their exclusive dealing with the
defendant and those who suffered net economic harm.
Cox v. Sherman Capital LLC,
no. 1:12-cv-01654-tWP-mJd, 2014 Wl 1328147
(s.d. ind. mar. 31, 2014).
Judge Tanya Walton Pratt of the u.S. District Court for
the Southern District of Indiana sustained the defen-
dant’s objections to the report and recommendation of
the magistrate judge relating to class certification. The
case involved alleged misconduct associated with the
collection of debts in violation of the Fair Debt Collection
Practices Act. The plaintiffs filed a motion for class certi-
fication simultaneously with the filing of their complaint.
The plaintiffs did not file a brief in support of their motion,
and no discovery on class certification was conducted.
The court observed that the plaintiffs could not rely upon
conclusory allegations or speculation as to the size of the
class to show numerosity. Because the plaintiffs’ numer-
osity allegations were made “on information and belief,”
they were speculative and could not support a finding
that the numerosity requirement had been satisfied. In
addition, the plaintiffs’ complaint did not provide any detail
in support of their conclusory assertion that their claims
were typical of other class members’ claims; nor did it
provide any explanation as to which plaintiff purportedly
represented which subclass.
Martin v. Mountain State Univ., Inc., no. 5:12-03937,
2014 Wl 1333251 (s.d. W. va. mar. 31, 2014).
Judge David A. Faber of the u.S. District Court for the
Southern District of West virginia denied the plaintiff’s
motion for class certification in a suit alleging harm
suffered as a result of the defendant university’s loss of
accreditation in July 2012. The plaintiff sought to represent
a class defined as “[a]ll individuals who reside outside
West virginia and had enrolled in any program at Mountain
State university prior to July 10, 2012,” alleging claims of
negligence, breach of fiduciary duty, negligent misrepresen-
tation, unjust enrichment, breach of contract and violation of
the West virginia Consumer Credit and Protection Act. The
court held that the plaintiff failed to demonstrate predomi-
nance under Rule 23(b)(3) because he did not present any
choice-of-law analysis. The court also held that the varied
circumstances of the proposed class members indicated
that individualized proof of damages and causation would
overwhelm any common issues.
McPeters v. LexisNexis, no. 4:11-Cv-2056,
2014 Wl 1321117 (s.d. tex. mar. 31, 2014).
Judge Keith P. Ellison of the u.S. District Court for the
Southern District of Texas denied the plaintiffs’ motion to
certify a class in an action alleging, among other things,
that the county courts’ e-filing system and fees violated the
Texas Deceptive Trade Practices Act (DTPA). In addition
to other relief, the plaintiffs moved to certify a class for
violations of the DTPA which states, in pertinent part, that
a “consumer” may bring suit where “any unconscionable
action or course of action by any person” causes “eco-
nomic damages or damages for mental anguish.” The
court refused to certify the class because adjudicating an
unconscionability claim would require individualized inqui-
ries into what each class member knew and the relative
sophistication of each class member.
Barton v. RCI, LLC, no. 10-3657 (Pgs)(deA),
2014 Wl 1292236 (d.n.J. mar. 31, 2014).
The plaintiff moved to certify a class of individuals who
had entered into a participation agreement with RCI,
a vacation-exchange program at certain resorts. The
plaintiffs alleged that RCI induced them to enter into an
agreement by explaining that points could be used for
a wide variety of vacation-related expenses and then
subsequently restricted the number of points that could be
exchanged for airline tickets, cruises and car rentals (but
not resort stays) in violation of the New Jersey Consumer
Fraud Act. Judge Peter g. Sheridan of the u.S. District
Court for the District of New Jersey denied the motion for
class certification, holding that the experiences of class
representatives were sufficiently different from those of
the putative class members to preclude certification. In
particular, the variety of ways that member used (or did
not use) their points indicated that many putative class
members may not have suffered any economic harm and
individualized issues would therefore predominate.
Byrd v. Aaron’s, Inc., no. 11-101e, 2014 Wl 1316055
(W.d. Pa. mar. 31, 2014), 23(f) pet. pending.
Judge Cathy Bissoon of the u.S. District Court for the
Western District of Pennsylvania adopted the recom-
mendation of Magistrate Judge Susan Paradise Baxter to
deny the plaintiffs’ motion to certify a class of plaintiffs
(continued on next page)
the Class Action Chronicle | 10
who alleged violations of the Electronic Communications
Privacy Act related to surveillance by Aaron’s Inc. of
computers purchased or leased from the company. The
court held that the plaintiffs failed to meet the threshold
requirement of ascertainability because it would be difficult
to identify every individual who used a sold or leased com-
puter and because it would not be feasible to determine
whose information was collected.
Seibert v. Quest Diagnostics Inc., no. 11-0304 (Ksh),
2014 Wl 1293510 (d.n.J. mar. 31, 2014).
Judge Katharine S. hayden of the u.S. District Court for
the District of New Jersey denied certification of a class
of former sales employees of Quest Diagnostics Inc.
who were terminated without full severance benefits
after placement on a performance improvement plan.
The plaintiff sought injunctive relief under the Employee
Retirement Income Security Act, which prohibits employ-
ers from making a “conscious decision to interfere with
the employee’s attainment of . . . benefits.” The court
found that the plaintiff did not meet the adequacy and typ-
icality requirements of Rule 23(a) because the plaintiff had
other avenues of relief available to her (including adminis-
trative appeals and claims under a state statute) that may
not be available to the other class members and because
the plaintiff may be entitled to a different benefit payout
than the other members of the proposed class. The court
also found that the superiority and predominance factors
of Rule 23(b) were not satisfied. Common issues did not
predominate within the class because class members
faced different geographical challenges and worked under
different managers, all possibly affecting their perfor-
mance, and a class action was not the superior method of
resolving the dispute because individual plaintiffs would be
better able to tailor their claims to their lengths of service
and territorial/market-based realities.
Mullis v. Mountain State Univ., Inc., no. 5:12-03158,
2014 Wl 1276150 (s.d. W. va. mar. 27, 2014).
Judge David A. Faber of the u.S. District Court for the
Southern District of West virginia denied a motion for class
certification in a case alleging that the defendant university
failed to provide geographically convenient or otherwise
practicable clinical sites at which students could fulfill the
Diagnostic Medical Sonography (DMS) clinical externship
requirements. The complaint alleged five causes of action:
breach of contract, negligence, negligent misrepresenta-
tion, unjust enrichment/breach of quasi-contract and viola-
tion of the West virginia Consumer Credit and Protection
Act. The court denied the motion for class certification on
numerosity grounds because the plaintiff’s enrollment chart
represented students who chose DMS as a major — not
those students who were actually accepted into the online
DMS program underlying the lawsuit, which was a more
modest number.
In re POM Wonderful LLC, no. ml 10-02199 ddP (rZx),
2014 Wl 1225184 (C.d. Cal. mar. 25, 2014).
At the conclusion of class discovery, Judge Dean D.
Pregerson of the u.S. District Court for the Central District
of California granted the defendant’s motion to decertify
a damages class of consumers of Pom Wonderful 100%
juice product asserting claims under California’s con-
sumer protection law for allegedly false and misleading
advertising regarding the health benefits of certain juice
products. Despite rejecting the defendant’s interpretation
of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the
court found that both of the plaintiffs’ proposed damages
models were unworkable. The plaintiffs’ model that used
the full retail price paid as the measure of damages was
not an appropriate determination of restitutionary dam-
ages because it failed to account for any value consumers
received in the form of hydration, vitamins and minerals.
The plaintiffs’ model calculating a “price premium” was
also flawed because it was essentially a “fraud on the
market” theory, which was not relevant to damages or
consumer actions. The court held that “where, as here,
consumers buy a product for myriad reasons, damages
resulting from the alleged misrepresentations will not
possibly be uniform or amenable to class proof,” and the
plaintiffs’ expert did not even attempt to explain how
the alleged misrepresentations led to a higher price. The
court also concluded that there was no administratively
manageable method of determining class membership
because “[n]o bottle, label, or package included any of the
alleged misrepresentations” and “[f]ew, if any, consumers
are likely to have retained receipts during the class period,
which closed years before the filing of this action.” Thus,
“despite Plaintiffs’ best efforts, there is no way to reliably
determine who purchased Defendant’s products or when
they did so.”
Steimel v. Minott, no. 1:13-cv-957-Jms-mJd,
2014 Wl 1213390 (s.d. ind. mar. 24, 2014).
Judge Jane Magnus-Stinson of the u.S. District Court for
the Southern District of Indiana denied class certification
in a case brought against various Indiana state agencies
alleging violations of the Americans with Disabilities Act
of 1990 and the Rehabilitation Act of 1973. The plaintiff,
on behalf of a putative class of developmentally disabled
individuals, argued that the agency’s policy change relat-
ing to Medicaid waiver services caused many individuals
to face a reduction in services. The court concluded that
identifying putative class members who would face a
reduction in services would require a complex, highly indi-
vidualized inquiry into the specific needs of each enrollee.
Thus, the putative class was not sufficiently ascertainable
to permit certification.
the Class Action Chronicle | 11
Sandusky Wellness Center, LLC v. Wagner Wellness,
Inc., no. 3:12 Cv 2257, 2014 Wl 1224418 (n.d. ohio
mar. 24, 2014), 23(f) pet. granted.
Judge David A. Katz of the u.S. District Court for the
Northern District of Ohio denied a motion to certify a
class of individuals who allegedly received unsolicited
faxes in violation of the Telephone Consumer Protection
Act (TCPA). The court explained that if the recipient of
an allegedly unsolicited fax had given permission to send
the fax or had a prior established business relationship
with the fax’s sender, then there was no TCPA violation.
Because the proposed class included individuals who had
given permission or had an established relationship with
the sender, there was no TCPA violation as to faxes sent to
those individuals, and commonality was lacking.
In re TRS Recovery Services, Inc.,
no. 2:13-md-2426-dBh, 2014 Wl 1119695
(d. me. mar. 20, 2014).
Judge D. Brock hornby of the u.S. District Court for the
District of Maine denied the plaintiffs’ motion to certify
four additional classes of residents of California, Kansas,
New York and North Carolina who received allegedly mis-
leading letters from TRS Recovery Services (a debt collec-
tor), purportedly in violation of the Federal Debt Collection
Practices Act (FDCPA), after related lawsuits from those
states were transferred to his court by the Judicial Panel
on Multidistrict Litigation. (The court had previously certi-
fied a class of Maine residents asserting FDCPA claims
against TRS.) The court held that the named plaintiffs
in the Maine lawsuit could not represent the four new
proposed classes because of statute of limitations issues.
The court rejected the plaintiffs’ argument that certification
of a class of Maine residents tolled the limitations period
for members of the proposed California, Kansas, New York
and North Carolina classes.
In re Google Inc. Gmail Litig., no. 13-md-02430-lhK,
2014 Wl 1102660 (n.d. Cal. mar. 18, 2014), 23(f) pet.
denied.
Judge Lucy h. Koh of the u.S. District Court for the
Northern District of California denied the plaintiffs’ motion
to certify four classes and three subclasses in a multidis-
trict litigation proceeding involving alleged violations of
state and federal anti-wiretapping laws. Judge Koh found
that the question whether email users in the proposed
classes consented to the alleged interceptions of email
was a central issue in the case, and individual issues of
consent were likely to predominate over common issues,
making class certification inappropriate. In particular, the
question whether email users gave implied consent would
require examining individual circumstances such as the
“panoply of sources” from which the email users could
have learned of google’s interceptions, including media
sources and google’s own policies.
Automotive Leasing Corp. v. Mahindra & Mahindra,
Ltd., no. 1:12-Cv-2048-tWt, 2014 Wl 988871
(n.d. ga. mar. 14, 2014).
Judge Thomas W. Thrash, Jr. of the u.S. District Court
for the Northern District of georgia declined to certify
a proposed class in a suit arising out of the defendant
manufacturer’s decision not to enter the u.S. market after
agreeing to allow various motor vehicle dealers to distribute
its vehicles in the united States. The plaintiffs brought
suit on behalf of all motor vehicle dealers who agreed to
distribute the defendant’s vehicles in the united States
before the defendant announced it would not be entering
the u.S. market. The plaintiffs sought to recover the fees
they paid to the defendant for the right to distribute its
cars in the domestic market. The court concluded that the
plaintiffs failed to meet the requirements of Rules 23(a) and
23(b). According to Judge Thrash, the class failed the com-
monality requirement of Rule 23(a) because the plaintiffs
did not present any evidence that georgia state law, under
which they brought suit, “would necessarily apply to all of
the putative class members’ state law claims.” Further,
the court found that the determinations of which law to
apply to class members’ claims for unjust enrichment and
promissory estoppel would require individualized choice-
of-law analyses among class members sufficient to defeat
commonality. The court also found that the class did not
meet the predominance requirement of Rule 23(b)(3), not-
ing that the damages amounts individual plaintiffs sought
to recover varied considerably, and that the “need for
individualized assessments of damages counsels against
class certification under Rule 23(b)(3).”
Henke v. Arco Midcon, L.L.C., no. 4:10Cv86 heA,
2014 Wl 982777 (e.d. mo. mar. 12, 2014).
Judge henry Edward Autrey of the u.S. District Court for
the Eastern District of Missouri denied class certification
in a case involving allegations of property damage caused
by contamination from the defendants’ pipeline. The plain-
tiffs sought to certify a class of individuals who owned
property on which there was a record indicating there was
a leak or spill of petroleum but no report indicating the
leak or spill had been remediated. According to the court,
such a class was not ascertainable because it neces-
sitated individual inquiries as to whether a remediation
record could be found and correlated with each potential
class member’s property. The named plaintiffs also failed
to sufficiently establish that they were members of the
class because they had not come forward with evidence
that they owned property with a record of a leak or spill
from the pipeline. Finally, the court held that the plaintiffs
failed to meet the requirements of both Rule 23(a) and
(b) because, inter alia, the most important questions in
the litigation were individualized — did the putative class
member’s property have any contamination and was it
from the defendant’s pipeline?
the Class Action Chronicle | 12
Slapikas v. First American Title Insurance Co.,
no. 06-0084, 2014 Wl 899355 (W.d. Pa. mar. 7, 2014).
Judge Joy Flowers Conti of the u.S. District Court for the
Western District of Pennsylvania granted the defendant’s
motion for decertification of a class of Pennsylvania
homeowners alleging that the title insurance company First
American overcharged homeowners for title insurance
when they refinanced their home mortgages. The plaintiff
class sought relief under the unfair Trade Practices and
Consumer Protection Law (uTPCPL). Because uTPCPL
actions require that the plaintiff show justifiable reliance on
the defendant’s wrongful conduct, the court found that indi-
vidualized issues would predominate over common ones.
Chapman v. First Index, Inc., no. 09 C 5555,
2014 Wl 840565 (n.d. ill. mar. 4, 2014).
Judge Sara L. Ellis of the u.S. District Court for the
Northern District of Illinois denied class certification in a
case alleging that the defendant sent unsolicited fax mes-
sages in violation of the Telephone Consumer Protection
Act. Because the defendant had submitted uncontroverted
evidence that it obtained consent prior to sending faxes
to the contacts in its database, the court agreed that
individualized inquiries regarding consent precluded class
certification. Specifically, the court noted that it would be
required to engage in case-by-case inquiries to determine
whether each fax was transmitted without prior express
invitation or permission, making the class unascertainable
and defeating predominance.
Karhu v. Vital Pharmaceuticals, Inc., no. 13-60768-
Civ, 2014 Wl 815253 (s.d. fla. mar. 3, 2014), 23(f) pet.
denied.
Judge James I. Cohn of the u.S. District Court for the
Southern District of Florida declined to certify a putative
nationwide false advertising class involving the dietary
supplement Meltdown. The plaintiff consumer brought
claims against a pharmaceutical company, alleging con-
sumer fraud and breach of warranty. The plaintiff sought
to represent all persons in the united States who have
purchased Meltdown for purposes other than resale since
April 4, 2008. The court denied the motion for class cer-
tification, finding that the class was not ascertainable and
also failed Rule 23(b)(3)’s predominance requirement. With
respect to ascertainability, the court emphasized that the
defendant sold mostly to distributors and retailers rather
than to consumers directly. Thus, the defendant did not
have a record of individuals who purchased the product,
making it virtually impossible to ascertain class member-
ship. The court also found that predominance was not
satisfied in light of the wide variations among the relevant
state laws.
Labou v. Cellco Partnership,
no. 2:13-cv-00844-mCe-efB, 2014 Wl 824225
(e.d. Cal. mar. 3, 2014).
Chief Judge Morrison C. England, Jr. of the u.S. District
Court for the Eastern District of California denied certifica-
tion of a nationwide class of “‘all persons within the united
States who received any telephone calls from Defendant
[doing business as verizon] . . . made through the use of
any automatic telephone dialing system; in the past four
years,’ when that person ‘had not previously . . . provided
their cellular telephone number to Defendant.’” The
plaintiff, a non-verizon customer, brought two claims for
negligent and willful violations of the Telephone Consumer
Protection Act, alleging that she received automated calls
on her cellular phone from the defendants, attempting to
collect unpaid bills owed by the plaintiff’s former brother-
in-law. The court found that the plaintiff failed to meet the
typicality requirement of Rule 23(a)(3) because she was a
non-verizon customer, whereas most of the putative class
members were verizon customers who “have written
contracts containing provisions both for automated calls
upon prior written consent and for arbitration.” The plaintiff
similarly failed to meet the adequacy requirement under
Rule 23(a)(4) since, as a non-verizon customer, she “neither
possess[ed] the same interest nor suffer[ed] the same
injury as the majority of the proposed class.”
Phillips v. Philip Morris Cos. Inc., no. 5:10Cv1741,
2014 Wl 809005 (n.d. ohio feb. 28, 2014).
Judge Sara Lioi of the u.S. District Court for the Northern
District of Ohio denied a motion to certify a class of
purchasers of Marlboro Lights cigarettes in a suit claiming
that Philip Morris had falsely claimed that light cigarettes
delivered less tar and nicotine than full-flavored cigarettes.
The plaintiffs alleged claims for fraud, unjust enrichment
and breach of express and implied warranties. As a prelimi-
nary matter, the court rejected the plaintiffs’ argument that
an Ohio state trial court decision in a predecessor case
certifying a class against Philip Morris for violation of the
Consumer Sales Practices Act (CSPA) was law of the case
requiring certification here. According to the court, that
decision only certified the CSPA claim, it was reversed
by the Ohio Supreme Court, it was ultimately voluntarily
dismissed (and re-filed in federal court), and the decision
did not undertake the “rigorous analysis” required for
class certification in federal court. The court went on to
conclude that Rule 23(b)(3)’s predominance requirement
was not satisfied, for three reasons. First, based on expert
analysis, a significant percentage of the putative class
may have received the benefit of the bargain (a lower tar
and nicotine cigarette), making the class overinclusive.
Second, the plaintiffs’ fraud and warranty claims required
proof of actual reliance on the alleged misrepresentations,
which would necessitate individualized inquiries. Third, in
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the Class Action Chronicle | 13
contrast to the washing machines in In re Whirlpool Corp.
Front-Loading Washer Products Liability Litigation, 722 F.3d
838 (6th Cir. 2013), cert. denied, 134 S. Ct. 1277 (2014),
there was no alleged inherent defect or defective design in
the light cigarettes. Accordingly, the plaintiffs did not have
classwide proof of injury.
Hugh’s Concrete & Masonry Co. v. Southeast
Personnel Leasing, Inc., no. 8:12-Cv-2631-t-17AeP,
2014 Wl 794317 (m.d. fla. feb. 26, 2014).
Judge Elizabeth A. Kovachevich of the u.S. District Court
for the Middle District of Florida declined to certify a
proposed class on the basis that it failed to meet the
numerosity, commonality and typicality requirements of
Rule 23(a). The plaintiff, a concrete contractor, sued an
employee-leasing company for allegedly over-withholding
payroll taxes. In denying certification, Judge Kovachevich
held that the plaintiff failed to offer anything “beyond
mere speculation” regarding class size. At most, the
plaintiff alleged that the defendant was “one of the largest
privately owned companies in Florida” and had a “broad
Internet advertising campaign.” But this did not constitute
“substantive proof” that the numerosity requirement was
satisfied. Similarly, while the plaintiff attempted to prove
commonality by alleging that the defendant entered into
standardized agreements and uniformly charged certain
taxes, the court held that the plaintiff failed to offer any
evidence beyond these allegations that was sufficient to
meet the commonality requirement. Finally, as to typicality,
the plaintiff’s allegation that it would be able to show that
all class members were damaged in the same manner and
suffered the same injuries after discovery was insufficient.
Spread Enterprises, Inc. v. First Data Merchant
Services Corp., no. 11-Cv-4743 (Ads) (AKt),
2014 Wl 724803 (e.d.n.Y. feb. 22, 2014), 23(f) pet.
pending.
Judge Arthur D. Spatt of the u.S. District Court for the
Eastern District of New York denied class certification in
breach-of-contract case brought by a merchant against a
credit card processing company. The plaintiff had alleged
that the processing company charged duplicative authori-
zation fees on certain credit card transactions. Judge Spatt
determined that the plaintiff failed to meet the numerosity,
commonality and predominance requirements of Rule 23
because, inter alia, other merchants using defendants’ ser-
vices might have had different fee arrangements or may
not have experienced similar charges. (Judge Spatt then
dismissed the named plaintiff’s claims for lack of subject-
matter jurisdiction, believing that jurisdiction no longer
existed under the Class Action Fairness Act.)
Grodzitsky v. American Honda Motor Co.,
no. 2:12-cv-01142-svW-PlAx, 2014 Wl 718431
(C.d. Cal. feb. 19, 2014).
Judge Stephen v. Wilson of the u.S. District Court for
the Central District of California denied certification of a
nationwide class of consumers who purchased or leased
vehicles manufactured and sold by honda with allegedly
defective window regulators. The court held that the plain-
tiffs failed to establish commonality pursuant to
Rule 23(a)(2) because they did not provide evidence that all
of the window regulators in all class vehicles were made
of the same materials. As such, the court concluded,
“Plaintiffs have not established that the question ‘is there
a defect?’ is capable of classwide resolution.” The court
also assessed predominance under Rule 23(b)(3) in light of
the “highly analogous” Mazza v. American Honda Motor
Co., 666 F.3d 581 (9th Cir. 2012). The court held that
because honda “presented evidence sufficient to show
material differences between state consumer protection
laws on matters material to the instant dispute — intent,
reliance, and class representation,” common issues did not
predominate over individual issues as required pursuant to
Rule 23(b)(3).
decisions Permitting/granting Class Certification
Rodriguez v. It’s Just Lunch, Int’l,
no. 07 Civ. 9227(shs), 2014 Wl 1921187
(s.d.n.Y. may 14, 2014).
Judge Sidney h. Stein of the u.S. District Court for the
Southern District of New York granted certification of a
nationwide class with respect to fraud claims but denied
certification of unjust enrichment claims. The defendants
offered personalized matchmaking services, and the
plaintiffs alleged that they were enticed to pay exorbi-
tant fees ($1,000 for one year of service) as a result of
the defendants’ misrepresentations. The court denied
certification of the unjust enrichment claim because the
plaintiffs had not demonstrated that common questions
predominated in light of state law variations. As to common
law fraud, however, the court held that the defendants’
representations regarding “multiple matches” were materi-
ally uniform, that the plaintiffs could prove reliance through
common evidence and that variations in state fraud laws
did not preclude a finding of predominance. Second, the
court determined that a class action was the superior mode
of adjudicating the fraud claims because class members
would have little interest in controlling such low-value
claims individually.
the Class Action Chronicle | 14
Baker v. Castle & Cooke Homes Hawaii, Inc.,
no. 11-00616 som-rlP, 2014 Wl 1669158
(d. haw. Apr. 28, 2014).
Chief Judge Susan Oki Mollway of the u.S. District Court
for the District of hawaii adopted the magistrate judge’s
recommendation and certified a class of homeowners in
a housing development whose plumbing systems were
constructed with allegedly defective brass fittings. The
court held that the proposed class contained at least 40
potential class members, enough to satisfy the numerosity
requirement, and the common contention that the fittings
at issue were defective products met the commonality and
predominance requirements. Judge Mollway rejected the
defendant’s argument that the named plaintiffs were inad-
equate representatives because they did not understand
certain scientific and legal issues.
Lanovaz v. Twinings North America, Inc.,
no. C-12-02646-rmW, 2014 Wl 1652338
(n.d. Cal. Apr. 24, 2014), 23(f) pet. pending.
Judge Ronald M. Whyte of the u.S. District Court for the
Northern District of California granted in part and denied
in part the plaintiff’s motion for class certification of a
purported class of tea purchasers. The plaintiff alleged that
she paid a premium for green and black tea, and would not
have purchased the teas but for the defendant’s unlawful
labeling that described the tea as a “Natural Source of
Antioxidants.” The court found the proposed class was
ascertainable because it was administratively feasible to
determine whether a particular individual was a member
of the class. The court also held that the plaintiff’s claims
were typical, since all of the products included in the
class definition, including the products purchased by the
named plaintiff, had the same statement on the label and
were made from the same type of tea plant. Finally, the
question of materiality was a common question, based on
whether a reasonable consumer would attach importance
to the antioxidant statements. For these reasons, the court
certified a class for injunctive relief under Rule 23(b)(2).
however, because the plaintiff could not provide a damag-
es model that would link a price premium to the allegedly
misleading statements about antioxidants, the court denied
certification of a damages class under Rule 23(b)(3).
Forcellati v. Hyland’s, Inc.,
no. Cv 12-1983-ghK-mrWx, 2014 Wl 1410264
(C.d. Cal. Apr. 9, 2014).
Chief Judge george h. King of the u.S. District Court for
the Central District of California certified a nationwide
consumer-fraud and warranty class in a case alleging that
the defendants’ homeopathic cold and flu products were
defective and deceptively marketed. Before delving into
the class certification analysis, Judge King found that
California law applied to the class claims under California’s
choice-of-law regime because the defendants were
headquartered in that state. In so doing, the court rejected
the defendants’ reliance on Mazza v. American Honda
Motor Co., 666 F.3d 581, 589 (9th Cir. 2012), focusing on
the defendants’ failure to identify any material differences
between the consumer-protection and warranty laws of
California and those of other states. The court next conclud-
ed that the class was sufficiently ascertainable, even though
there were no sales records identifying individuals in the
class. According to Judge King, the defendants did not have
a due-process right to challenge class membership because
“[their] aggregate liability is tied to a concrete, objective set
of facts—[their] total sales—that will remain the same no
matter how many claims are submitted.” In addition, resolv-
ing the issue of class membership was not a barrier to class
certification because any unclaimed damages would be
distributed via a cy pres remedy. The court also concluded
that the express Rule 23 prerequisites were satisfied,
reasoning that the defendants’ representations regarding
their products’ ability to “safely and effectively treat flu and
cold symptoms” were uniform and their veracity could be
established through clinical studies and expert testimony.
Hawk Valley Inc. v. Taylor, no. 10-cv-00804,
2014 Wl 1302097 (e.d. Pa. mar. 31, 2014),
23(f) pet. denied.
Judge James Knoll gardener of the u.S. District Court for
the Eastern District of Pennsylvania granted the plaintiff’s
motion to certify a class of plaintiffs who received unso-
licited facsimile advertisements sent by the defendant in
violation of the federal Telephone Consumer Protection
Act (TCPA). The court held that despite the presence of
some individualized issues, the primary facts, including the
fact that the fax numbers were received from a common
purveyor, were common to the class, pointing to other
TCPA cases as precedent.
Smith v. ConocoPhillips Pipe Line Co.,
no. 4:11-Cv-2040-JAr, 2014 Wl 1314942
(e.d. mo. mar. 31, 2014), 23(f) pet. granted.
Judge John A. Ross of the u.S. District Court for the
Eastern District of Missouri granted in part and denied in
part the plaintiffs’ motion for class certification in an action
resulting from petroleum contamination from a leak in the
defendant’s pipeline system. The plaintiffs sought to cer-
tify both a property damage class and a medical monitoring
class. The defendant challenged both the property dam-
age and medical monitoring class definitions, arguing that
they were overbroad because they encompassed property
that may not have been exposed to the contamination
or individuals who were not exposed. The court rejected
the argument with respect to the property damage class,
finding that there was sufficient evidence of exposure
to support that class definition. however, the court was
persuaded that the medical monitoring class definition was
inadequate for lack of proof of exposure.
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the Class Action Chronicle | 15
The court so reasoned because while the plaintiffs pro-
vided expert evidence of property damage exposure, they
did not furnish any evidence showing exposure on the part
of individuals — a requirement for medical monitoring. The
court therefore denied the motion for class certification
as to the medical monitoring class. The court certified the
property damage class, however, concluding that com-
mon issues regarding the contamination predominated
and that a class action was superior to other methods of
adjudication because “[t]he proof regarding the history of
the pipeline system, the leak, the impact on the soil and
groundwater, possible remedies, etc. would be identical.”
In re Cablevision Consumer Litig.,
no. 10-Cv-4992 (Js)(AKt), 2014 Wl 1330546
(e.d.n.Y. mar. 31, 2014).
Judge Joanna Seybert of the u.S. District Court for the
Eastern District of New York granted class certification in a
consumer class action arising out of Cablevision Systems
Corp. and CSC holdings, LLC’s failure to provide certain
programming on networks owned by Fox Cable Network
Services during a two-week period. The plaintiffs alleged
that Cablevision failed to credit any of its subscribers for
the two weeks they were without the Fox channels and
did not provide alternative programming to replace them.
Judge Seybert found that the plaintiffs satisfied Rule 23’s
requirements of numerosity, commonality, typicality and
adequate representation. According to Judge Seybert,
whether Cablevision’s failure to provide Fox channels was
a “program or service interruption” under the Terms of
Service was common to all putative class members. The
court found that predominance was also satisfied because
(i) each class member was bound by the same standard
form contract; (ii) whether the voluntary payment doctrine
and the contract’s notification provision applied were com-
mon issues and (iii) damages could be determined on a
classwide basis. Judge Seybert also rejected Cablevision’s
argument that class certification was improper because
the class included members who lacked Article III
standing.
In re Electronic Books Antitrust Litig.,
no. 11 md 2293(dlC), 2014 Wl 1282293
(s.d.n.Y. mar. 28, 2014), 23(f) pet. denied.
Judge Denise L. Cote of the u.S. District Court for the
Southern District of New York granted class certification
in this “paradigmatic antitrust class action.” The plaintiffs
were a class of customers who allegedly paid inflated
prices for e-books as a result of a centralized price-fixing
conspiracy between Apple Inc. and five major publishers.
In the court’s words: “‘where plaintiffs were allegedly
aggrieved by a single policy of the defendant[ ], and there
is a strong commonality of the violation and the harm,
this is precisely the type of situation for which the class
action device is suited.’” The court also determined that a
class action was superior to other methods of adjudication
because the class members’ injuries were so minor that
no other practical method of adjudication existed.
Kristensen v. Credit Payment Services,
no. 2:12-Cv-00528-APg, 2014 Wl 1256035
(d. nev. mar. 26, 2014).
Judge Andrew P. gordon of the u.S. District Court for
the District of Nevada certified a nationwide class of all
individuals who were sent a text message from three
identified telephone numbers during a specified time
period. The plaintiff brought claims under the Telephone
Consumer Protection Act, alleging that the defendants
marketed their services by causing their agents to send an
unauthorized text message to his cell phone. According to
the court, the plaintiff identified “several common issues”
that would “generate common answers,” including
(i) whether the equipment used to send the text messages
was an automatic telephone dialing system, as defined by
statute; (ii) whether defendants were vicariously liable for
the text messages and (iii) whether the class members
expressly consented to receive the text messages. As
the court explained, vicarious liability turned on federal
agency principles that looked to the defendants’ relation-
ship and conduct, without any need to determine how
individual class members perceived or acted upon the text
message. Similarly, the court held that it “should ignore a
defendant’s argument that proving consent necessitates
individualized inquiries” where, as in that case, there was
an “absence of any evidence that express consent was
actually given” by any class member. The court cautioned,
however, that should the defendants “develop proof of
consent that requires burdensome, individualized inquiries,
the Court [could] take remedial measures up to and includ-
ing decertification.”
Cox v. Community Loans of America, Inc.,
no. 4:11-Cv-177 (Cdl), 2014 Wl 1216511
(m.d. ga. mar. 24, 2014), 23(f) pet. pending.
Judge Clay D. Land of the u.S. District Court for the
Middle District of georgia certified a damages class of
active duty military service members and their dependents
alleging that the defendant vehicle loan companies violated
the Military Lending Act (MLA), which imposes limitations
on terms of consumer credit extended to service mem-
bers and their dependents, and the Racketeer Influenced
and Corrupt Organizations Act (RICO). The gravamen of
the plaintiffs’ suit was that, after entering into vehicle title
loan transactions, the plaintiffs were unable to redeem
their car titles, and their vehicles were either repossessed
or subject to repossession. According to the plaintiffs,
these vehicle title loan transactions violated the MLA
because the annual percentage rate of interest for each
loan far exceeded the MLA’s limit of thirty-six percent.
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the Class Action Chronicle | 16
The plaintiffs sought to certify a class of “[a]ll covered
members of the armed services and their dependents
who . . . entered into a vehicle title loan by any means with
Defendants in violation of the Military Lending Act . . .
from October 1, 2007 to January 2, 2013.” The court first
granted the defendants summary judgment on the RICO
claim, obviating the need to address the certifiability of
that claim. With respect to the MLA claim, the defendants
objected to class treatment under Rule 23(b)(2), arguing
that the plaintiffs requested damages and that this relief
was not “incidental” to their claims for injunctive relief.
The court agreed, reasoning that each class member
could recover a different amount of damages based on
the amount of interest paid and the amount of the loan at
issue. however, the court granted certification under Rule
23(b)(3) on the MLA claim, holding that a damages class
of service members and their dependents satisfied the
requirements of that Rule 23 subsection, summarily con-
cluding that common issues of law and fact predominated.
Helmer v. Goodyear Tire & Rubber Co.,
no. 12-cv-00685-rBJ-meh, 2014 Wl 1133299
(d. Colo. mar. 21, 2014), 23(f) pet. denied.
The plaintiffs sought certification of a putative class
of Colorado homeowners who alleged that the rubber
hoses used in radiant heating systems were defectively
designed. Judge R. Brooke Jackson of the u.S. District
Court for the District of Colorado certified a Rule 23(b)
(3) class of Colorado homeowners. The court found that
the class of at least 132 Colorado homeowners was suf-
ficiently numerous, and typicality and commonality were
satisfied because the potential class members were all
exposed to the same injury — degradation of the tubing
— “regardless of the factual differences between them.”
In the court’s view, “requir[ing] absolute homogeneity of
factual and legal circumstances among a putative class
would grant defendants in products liability actions like
this one a trump card of sorts.” The court rejected the
defendant’s argument that incorrect installation caused
the plaintiffs’ injuries and that individualized questions of
causation would overwhelm common issues and defeat
predominance. According to the court, it would not “refuse
to certify a class that otherwise meets the requirements
of Rule 23 simply because the defendant raises potentially
persuasive arguments about why the plaintiffs will fail on
the merits.” The court also rejected a separate Article III
standing argument based on the fact that many of the
hoses had not yet malfunctioned because the “plaintiffs
have introduced evidence demonstrating that Entran 3
hoses will degrade over time, within the expected life-
time of the product, and that such degradation will cause
malfunctions,” which established actual, concrete injury to
any homeowner with that product installed.
Lowell v. Summer Bay Management, L.C.,
no. 3:13-Cv-229-tAv-CCs, 2014 Wl 1092187
(e.d. tenn. mar. 17, 2014).
Chief Judge Thomas A. varlan of the u.S. District Court
for the Eastern District of Tennessee adopted Magistrate
Judge C. Clifford Shirley, Jr.’s recommendation that
three classes of timeshare owners be certified in a case
against the timeshare developer and the individual who
controlled it. Rather than focusing on the requirements of
class certification, the defendants argued that the case
should be dismissed for two reasons: (i) the court lacked
subject-matter jurisdiction under CAFA and (ii) orders in
a different case precluded the plaintiffs’ claims here. The
court, however, approved of the magistrate’s refusal to sua
sponte consider whether CAFA jurisdiction was lacking
because that issue was not referred to the magistrate for
consideration by the district judge, and the defendants’
failure to file a motion to dismiss on that ground denied
the plaintiffs an opportunity to properly brief the issue.
Similarly, the court rejected the defendants’ argument that
the orders in a separate case between the defendants and
the homeowners’ associations precluded these claims
because the court was not required to consider whether
the claim might be subject to a subsequent dispositive
motion in determining whether commonality, typicality or
adequacy exist.
Rodman v. Safeway, Inc., no. 11-cv-03003-Jst,
2014 Wl 988992 (n.d. Cal. mar. 10, 2014).
Judge Jon S. Tigar of the u.S. District Court for the
Northern District of California granted in part and denied in
part certification of a nationwide class of all persons who
“registered to purchase groceries through Safeway.com”
before Safeway modified its terms of use (the Special
Terms), and who “purchased groceries at any time through
Safeway.com that were subject to the price markup
implemented on or about April 12, 2010.” The plaintiff
brought a breach-of-contract claim based on allegations
that the Special Terms conveyed that the items purchased
would be delivered from a specific brick-and-mortar store
close to the purchaser, and that the prices charged would
be the same as if the consumer shopped at that store.
Instead, prices charged to online consumers were 10
percent higher than the in-store prices. The court held
that the plaintiff proposed two common questions related
to the breach-of-contract claim that could be resolved on
a classwide basis, since “[t]he resolution of [the] dispute
over the meaning of the Special Terms is far more likely to
hinge on the objectively reasonable interpretation of the
contractual language rather than the interrogation of each
individual class member’s personal understanding of these
words.” however, the court refused to certify the plain-
tiff’s statutory consumer protection claims under California
law, because “it appears that an overwhelming major-
ity of Safeway.com customers did not view the alleged
misrepresentations.”
the Class Action Chronicle | 17
Cason-Merenda v. VHS of Michigan, Inc.,
no. 06-15601, 2014 Wl 905828
(e.d. mich. mar. 7, 2014).
Chief Judge gerald E. Rosen of the u.S. District Court for
the Eastern District of Michigan reinstated his order certi-
fying a class of nurses asserting antitrust claims based on
the defendant hospitals’ alleged agreement to keep down
nurses’ wages, following a Sixth Circuit order instructing
reconsideration in light of the u.S. Supreme Court’s deci-
sion in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).
The nurses presented two theories — either the hospitals
agreed to keep down nurses’ wages (a per se violation)
or they agreed to exchange wage-related information,
which led to a softening of compensation (a rule-of-reason
violation). The defendant argued that the class could not
be certified under Comcast because the nurses offered
“only a single calculation of [ ] damages” and the court
had dismissed claims based on the per se theory. The
defendant contended that because the “single calcula-
tion” had been made when two theories were pending,
it no longer fit the class. The court disagreed, noting that
the plaintiffs had offered a single calculation that could
work for either theory.
Lasalle Town Houses Cooperative Association v. City
of Detroit ex rel. Detroit Water & Sewage Department,
no. 12-cv-13747, 2014 Wl 824917
(e.d. mich. mar. 3, 2014).
Judge gershwin A. Drain of the u.S. District Court for the
Eastern District of Michigan certified a class of property
owners in an action claiming that the city of Detroit
violated the equal protection clause by allegedly classifying
multi-unit residential structures as commercial buildings
for purposes of water and sewage rates. In opposing
certification, the city argued that a settlement agreement
from an earlier class action barred the plaintiffs’ equal
protection claim because the classes were identical. The
court rejected the city’s argument that the doctrine of res
judicata barred the plaintiffs’ constitutional claims (even
though a prior class action with an arguably identical
class had been settled), because the parties had not yet
developed an adequate record to address the question
whether enforcing the earlier release to bar constitutional
claims would violate public policy. Noting that the city had
stipulated to class action treatment in the prior action, the
court found that the proposed class clearly satisfied Rule
23’s numerosity, commonality, typicality and adequacy
requirements. Further, the court held that a class action
was a superior method of resolving the litigation, because
individual actions could require the city to engage in
incompatible standards with respect to its billing for water
and sewage services.
Gragg v. Orange Cab Co., no. C12-0576rsl,
2014 Wl 794266 (W.d. Wash. feb. 27, 2014).
Judge Robert S. Lasnik of the u.S. District Court for the
Western District of Washington granted class certifica-
tion of a class of customers of the defendant taxi cab
company who allegedly were sent at least one marketing
text message without prior express consent, in violation
of Washington’s Commercial Electronic Mail Act (CEMA).
First, the court found that there were common questions
of law and fact, including whether the defendant sent the
text messages, whether the text message constituted a
“commercial text message” under CEMA, and whether
any exceptions or defenses to CEMA liability applied. As
to typicality, the court rejected the defendant’s argument
that the plaintiff’s claims were factually different from
some class members’ claims on the basis that significant
numbers of the proposed class provided express consent
to the marketing texts. The court noted that the class
definition specifically excluded customers who had given
prior consent, and the plaintiff alleged a uniform practice
in which the defendants “intentionally denied customers
the opportunity to opt out, making express consent a
non-issue.”
Ebin v. Kangadis Food Inc., 297 f.r.d. 561
(s.d.n.Y. 2014), 23(f) pet. denied.
Judge Jed S. Rakoff of the u.S. District Court for the
Southern District of New York certified a class of olive
oil purchasers who claimed that the defendants sold a
product labeled “100% Pure Olive Oil” when in fact the oil
contained an industrially processed substance called pom-
ace. Judge Rakoff refused to follow earlier S.D.N.Y. case
law addressing ascertainability and determined that “the
class action device, at its very core, is designed for cases
like this where a large number of consumers have been
defrauded but no one consumer has suffered an injury suf-
ficiently large as to justify bringing an individual lawsuit.”
The court thus determined that while the ascertainability
difficulties were formidable, they “should not be made into
a device for defeating the action.” The court also rejected
the defendants’ arguments that common issues did not
predominate because some class members may have
purchased the olive oil without relying on the label and
therefore could not have suffered any damages as a result
of the misrepresentation. The court held that because
“100% Pure Olive Oil” was the name of the product itself,
consumers necessarily had to rely on it. Finally, the court
determined that common issues would still predominate
even if it had to apply the laws of several states because
there were no material differences among the relevant
states with respect to common law fraud.
the Class Action Chronicle | 18
Makaeff v. Trump University, LLC,
no. 3:10-cv-0940-gPC-Wvg, 2014 Wl 688164
(s.d. Cal. feb. 21, 2014), 23(f) pet. denied.
Judge gonzalo P. Curiel of the u.S. District Court for the
Southern District of California certified five subclasses
of participants in certain Trump university real-estate
investment seminars. The plaintiffs alleged violations of
California, New York and Florida consumer protection
statutes as well as several common law causes of action,
including fraud and elder financial abuse, arising from
allegedly false representations in the advertising and
in the programs themselves. The court certified a Rule
23(b)(3) class, rejecting the defendants’ contention that
the student experiences varied by program, price and
individual performance, because the allegations that the
advertising and program materials falsely represented the
accreditation status of Trump university and the extent of
Donald Trump’s involvement and further mentoring and
support applied classwide. As to the California, New York
and Florida subclasses asserting consumer protection
claims, the court concluded that the class members were
not required to prove individualized reliance on the misrep-
resentations due to the uniform nature of the promotional
campaign and the likelihood that each class member was
exposed to the same representations. The court also
certified two senior citizen subclasses for elder financial
abuse under California and Florida law for similar reasons.
however, Judge Curiel refused to certify a nationwide
class and nine other proposed subclasses because of
variations among the relevant laws.
other Class Certification decisions
McMahon v. LVNV Funding, llC, 744 f.3d 1010
(7th Cir. 2014).
A unanimous panel of the u.S. Court of Appeals for
the Seventh Circuit (Wood, C.J., Flaum and Sykes, JJ.)
concluded that the named plaintiff’s rejection of the
defendant’s settlement offer did not moot his interest in
a putative class action alleging violations of the Fair Debt
Collection Practices Act. The plaintiff’s original complaint
brought both individual and class claims. The court dis-
missed the class claims but expressly granted the plaintiff
permission to amend and allege narrower class claims.
Two hours after that ruling, the defendant tried to “pick
off” the plaintiff’s individual claims with an offer of settle-
ment. The plaintiff rejected the offer and filed an amended
class action complaint and motion for class certification
two days later. The court concluded that the defendant’s
offer of settlement did not moot the plaintiff’s claims
because the plaintiff “already had brought his class claims
before the district court” at the time of the settlement
offer and “was diligent in pursuing his class claims.”
Guadiana v. State Farm Fire & Casualty Co.,
no. Civ 07-326 tuC frZ, 2014 Wl 977671
(d. Ariz. mar. 13, 2014).
Magistrate Judge Leslie A. Bowman of the u.S. District
Court for the District of Arizona denied the defendant’s
motion to decertify a class of Arizona homeowners
pursuing breach-of-contract claims based on State Farm’s
alleged failure to pay tear out and replacement costs for
plumbing repairs pursuant to their homeowners’ policies.
The court found a common issue in the plaintiff’s expert’s
contention that if a leak in a certain piping system is found,
regardless of cause or severity, the entire piping system
would need to be replaced. The court also held that there
were no new legal or factual developments justifying
reopening the issues of ascertainability or predominance
of individual issues as to calculation of damages.
ClAss ACtion fAirness ACt deCisions
decisions denying motions to remand/reversing remand orders/finding CAfA Jurisdiction
Grawitch v. Charter Communications, Inc.,
— f.3d —-, 2014 Wl 1718737 (8th Cir. may 2, 2014).
A unanimous panel of the u.S. Court of Appeals for the
Eighth Circuit (Wollman, Bye and Melloy, JJ.) affirmed the
district court’s judgment and held that the district court
had jurisdiction under CAFA in a suit alleging that Charter
Communications, Inc. violated the Missouri Merchandising
Practices Act by allegedly providing class members with
internet modems that were incapable of operating at the
speed Charter had promised. The court observed that the
plaintiffs alleged a nationwide class consisting of at least
50,000 members and sought to recover up to $50,000
in damages per class member. “Based on these allega-
tions,” the court concluded, “a jury might conclude that
the class suffered damages of more than $5 million [],
even if the individual class members’ monthly overpay-
ment was minimal.”
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the Class Action Chronicle | 19
Clark v. Lender Processing Services, — f. App’x —-,
2014 Wl 1408891 (6th Cir. Apr. 14, 2014).
A unanimous panel of the u.S. Court of Appeals for the
Sixth Circuit (Cole, Rogers and hood, JJ.) held that CAFA
provided the district court with subject-matter jurisdic-
tion to hear the plaintiffs’ state law consumer protection
claims arising from residential foreclosures after dismiss-
ing related federal law claims. The court held that CAFA’s
home-state and local-controversy exceptions were not
jurisdictional, and thus, the plaintiffs’ failure to press their
argument before the district court waived that argument.
As the court explained, CAFA “speaks only of a district
court’s declining jurisdiction if the exceptions apply. This
language clearly indicates that the exceptions do not
deprive the court of jurisdiction it otherwise possesses
because a court could not ‘decline’ jurisdiction that it never
had in the first place.”
Johnson v. Pushpin Holdings, LLC, 748 f.3d 769
(7th Cir. 2014).
A unanimous panel of the u.S. Court of Appeals for the
Seventh Circuit (Posner, Rovner and Tinder, JJ.) granted
interlocutory review and reversed the district court’s deci-
sion remanding a putative class action alleging violation of
the Illinois Consumer Fraud Act. Although the complaint
limited the class claim to $3.5 million in damages, the
court recognized that the u.S. Supreme Court’s decision
in Standard Fire Insurance Co. v. Knowles, 133 S. Ct. 1345
(2013), prevented the named plaintiff from limiting the
amount of potential damages in the complaint for purposes
of CAFA.
Louisiana v. American National Property
& Casualty Co., 746 f.3d 633 (5th Cir. 2014).
A unanimous panel of the u.S. Court of Appeals for the
Fifth Circuit (Jolly, Smith and Clement, JJ.) reversed the
district court’s order remanding certain individual cases,
which had been severed from a CAFA class action, to state
court. Louisiana brought suit in state court against several
insurance companies to recover on homeowner insurance
policies that were purchased by Louisiana citizens but later
assigned by the policy holders to the State in return for
financial assistance in repairing and rebuilding the policy
holders’ homes. The defendant insurance companies
asserted jurisdiction under CAFA and removed the case
to federal district court. The state subsequently dropped
its class action allegations, severed the instant individual
action (and 1,503 others like it), from the original action,
and filed an amended complaint for the individual cases,
which were assigned to different district court judges. The
defendants argued that federal jurisdiction continued to
exist over the severed cases because jurisdictional facts
are assessed at the time of removal and are not affected
by later events. The district courts disagreed, but the Fifth
Circuit reversed. According to the appellate panel, juris-
diction remains over severed claims that were originally
subject to federal jurisdiction. To hold otherwise, the Fifth
Circuit explained, would be inconsistent with the text of
CAFA, which focuses on the status of an action when filed.
Lemy v. Direct General Finance Co., — f. App’x —-,
2014 Wl 903371 (11th Cir. mar. 10, 2014).
The u.S. Court of Appeals for the Eleventh Circuit (hull,
hill and Pannell, JJ.) affirmed the district court’s ruling that
the local-controversy exception to CAFA did not apply.
The plaintiffs brought a class action in state court against
a group of insurers, alleging that the defendants acted in
concert to sell the plaintiffs a worthless insurance product
in violation of the Florida Insurance Code. The defendants
included one local defendant and two out-of-state entities.
When the defendants removed the action under CAFA, the
plaintiffs moved to remand, invoking the local-controversy
exception. As the court explained, under CAFA, a local con-
troversy is one in which the plaintiffs are seeking significant
relief from a local defendant. Inasmuch as the plaintiffs
sought restitution of insurance premiums paid by the
Florida class, the district court assessed the share of insur-
ance premiums retained by the local defendant compared
to the others, determining that it retained only 4.5 percent
of the total premiums paid by the class. On appeal, the
Eleventh Circuit held that this finding was not erroneous.
O’Shaughnessy v. Cypress Media, L.L.C.,
no. 4:13-cv-0947-dgK, 2014 Wl 1791065
(W.d. mo. may 6, 2014).
Judge greg Kays of the u.S. District Court for the Western
District of Missouri denied the plaintiffs’ motion to remand
in a class action alleging that a newspaper publisher unlaw-
fully double-billed its subscribers. The court observed that
there were approximately 763,313 potential class mem-
bers, and “[a]ssuming compensatory damages of $9.24
per class member, the compensatory damages in dispute
alone exceed $7 million, not including punitive damages
or attorneys’ fees.” The court also found that minimal
diversity was satisfied. Moreover, the court rejected the
plaintiffs’ attempt to invoke CAFA’s local-controversy
exception, noting that (i) less than two-thirds of the pro-
posed class members were citizens of Missouri, the state
in which the action was filed; and (ii) no defendant was a
citizen of Missouri.
the Class Action Chronicle | 20
Hug v. American Traffic Solutions, Inc.,
no. 4:14Cv00138 erW, 2014 Wl 1689303
(e.d. mo. Apr. 29, 2014).
Judge E. Richard Webber of the u.S. District Court for the
Eastern District of Missouri denied the plaintiff’s motion to
remand in a lawsuit brought on behalf of a proposed class
of all persons accused of a red-light violation based upon
a red-light camera in the city of St. Louis, Missouri since
the enactment of an ordinance authorizing such cameras.
The court concluded that the defendant had demonstrated
the $5 million amount in controversy requirement by a
preponderance of the evidence. The plaintiff alleged that
the class contained thousands of members, that a $100
fine was typically assessed against those accused of red
light violations, and that the defendant issued several
thousand red light camera violations per month — resulting
in fines of over $5 million for the most recent five years of
the ordinance’s enforcement. Moreover, the defendant’s
senior account manager provided a declaration stating that
over 280,000 violation notices were paid in full or in part
over the past five years. Thus, given the standard fee of
$100 per violation, the amount in controversy would be as
much as $28 million. Because the plaintiff did not attempt
to establish to a legal certainty that less than $5 million
was in controversy, the court denied the plaintiff’s motion
to remand.
Dutcher v. Matheson, no. 2:11-Cv-666 ts,
2014 Wl 1660585 (d. utah Apr. 25, 2014).
After the u.S. Court of Appeals for the Tenth Circuit
remanded the action for the purpose of determining CAFA
jurisdiction, Judge Ted Stewart of the u.S. District Court
for the District of utah found that jurisdiction existed under
CAFA. The proposed class consisted of all persons whose
homes had been sold by the defendants in allegedly unlaw-
ful foreclosure sales. The court held that the plaintiffs had
not established that the local-controversy exception applied
because (i) the plaintiffs did not introduce any evidence to
show that two-thirds of the proposed class members were
utah citizens; (ii) “Plaintiffs’ hyperbolic characterization of
the importance of [certain resident defendants] to their
claims” was contradicted by the complaint’s allegations
establishing that the resident defendants were merely
agents of the primary defendants and were “at most, ancil-
lary defendants”; and (iii) another class action asserting the
same factual allegations against the same defendants had
been filed eight months before the instant action in federal
court. The court declined to apply the home-state exception
to CAFA jurisdiction for the same reasons, and also noted
that, inter alia, the class claims implicated the National
Banking Act and therefore would not be governed entirely
by utah state law.
Fergerstrom v. PNC Bank, N.A.,
no. 13-00526 dKW-rlP, 2014 Wl 1669101
(d. haw. Apr. 25, 2014).
Judge Derrick K. Watson of the u.S. District Court for the
District of hawaii adopted the magistrate judge’s findings
and recommendation denying the plaintiff’s motion to
remand. The magistrate judge found that the plaintiff’s
proposed class exceeded 100 members, and defendant
PNC timely asserted the court’s jurisdiction pursuant to
CAFA. The proposed class included consumers subjected
to a notice of foreclosure sale on behalf of PNC. According
to the defendant, the class contained between 108 and
144 putative members. however, the plaintiff disagreed,
arguing that certain of those individuals should be
excluded from the class. The magistrate judge found these
exclusions to be inconsistent with the plaintiff’s own class
definition, and once the improperly excluded mortgag-
ers were accounted for, CAFA’s 100-person numerosity
requirement was met. While PNC removed the case more
than 30 days after it was served with the complaint, this
delay was excusable, as the plaintiff’s complaint affirma-
tively alleged that there were less than 100 proposed class
members. PNC timely invoked CAFA jurisdiction once it
discovered the plaintiff’s allegation about the number of
affected homeowners was incorrect.
Marino v. Countrywide Financial Corp.,
no. sACv 14-0046-Jls (Anx), 2014 Wl 1631414
(C.d. Cal. Apr. 23, 2014).
Judge Josephine L. Staton of the u.S. District Court for
the Central District of California denied the plaintiff’s
motion to remand a class action alleging inadequate
disclosures with respect to adjustable rate mortgages.
Judge Staton rejected the plaintiff’s argument that
CAFA’s home-state exception applied, finding that the
non-resident Bank of America defendants were “primary
defendants” under 28 u.S.C. § 1332(d)(4)(B), because their
potential liability as alleged successors-in-interest was
“more akin to direct liability than vicarious liability,” and
because the plaintiff sought relief from all the defendants
collectively. The court also found that the local-controversy
exception did not apply because the alleged wrongful
conduct — issuing loans — was not confined to California
but was “national in scope.”
Williams v. Employers Mutual Casualty Co.,
no. 4:13-Cv-2393 snlJ, 2014 Wl 1375470
(e.d. mo. Apr. 8, 2014).
Judge Stephen N. Limbaugh, Jr. of the u.S. District Court
for the Eastern District of Missouri denied the plaintiff’s
motion to remand. The plaintiff brought an equitable
garnishment action against several insurers on behalf of a
previously certified class of individuals, seeking to satisfy a
judgment previously obtained by the class in a state court
(continued on next page)
the Class Action Chronicle | 21
action for damages caused by drinking and using con-
taminated water in a mobile home park. After one of the
defendants removed the case to federal court, the plaintiff
moved to remand to state court, arguing that her garnish-
ment action did not qualify as a “class action” under CAFA.
The court rejected the plaintiff’s argument, concluding that
the plaintiff’s lawsuit “seeks to recover for the class, and it
undoubtedly ‘resembles’ a class action and thus should be
considered as such for the purpose of CAFA.”
Barfield v. Sho-Me Power Electric Cooperative,
no. 2:11-cv-04321-nKl, 2014 Wl 1343092
(W.d. mo. Apr. 4, 2014).
Judge Nanette K. Laughrey of the u.S. District Court for
the Western District of Missouri denied the defendant’s
motion to dismiss for lack of jurisdiction under CAFA.
The court concluded that the defendant did not make the
motion within a reasonable time, as required by the u.S.
Court of Appeals for the Eighth Circuit. The court noted
that more than 26 months had passed since the case
was filed in federal court and that extensive discovery
and motion practice had been in progress. Moreover, the
defendant had not provided a persuasive reason for its
lengthy delay in filing the motion to dismiss. Accordingly,
the court denied the defendant’s motion and declined to
consider its substantive arguments regarding the applica-
bility of the local controversy or home-state exceptions to
CAFA jurisdiction.
Moll v. Intuitive Surgical, Inc., no. 13-6086,
2014 Wl 1389652 (e.d. la. Apr. 1, 2014).
Judge Eldon E. Fallon of the u.S. District Court for the
Eastern District of Louisiana denied the plaintiff’s motion
to remand and dismissed the plaintiff’s claims against
defendant Ochsner health Systems. The plaintiff, a
Louisiana resident, filed a class action to recover for
injuries allegedly sustained from a robot-assisted lapa-
roscopic hysterectomy. The court rejected the plaintiff’s
argument that CAFA’s local-controversy exception applied
and explained that because the plaintiff’s case was not
sufficiently provincial in nature, it was not the type of
dispute for which CAFA’s local-controversy exception was
created. In particular, the robotic device at issue in the
case had been distributed throughout the united States,
and the company that manufactured and designed the
product was not a Louisiana entity. In short, “[t]here is
nothing about [the plaintiff’s] alleged injury that suggests
it is unique to individuals in Louisiana.”
Downing v. Riceland Foods, Inc., no. 4:13Cv321 CdP,
2014 Wl 1316776 (e.d. mo. mar. 31, 2014).
Judge Catherine D. Perry for the u.S. District Court for the
Eastern District of Missouri denied the defendant’s motion
to dismiss for lack of subject-matter jurisdiction under
CAFA. The plaintiffs filed a putative class action in federal
court on behalf of all persons or entities that provided
or paid for common benefit services in connection with
multidistrict litigation involving genetically modified rice.
The defendant argued that the class had fewer than 100
class members because any putative class member that
had settled in the multidistrict litigation had necessarily
released all claims against the defendant. The court noted,
however, that a release is a contract-based affirmative
defense and does not strip the court of subject-matter
jurisdiction. Moreover, the defendant had not provided
any evidence — even excluding class members who had
signed releases — that the number of proposed class
members was less than 100. Accordingly, the defendant
failed to carry its burden of showing that there were fewer
than 100 plaintiffs in the proposed class, and the court
denied the defendant’s motion to dismiss under CAFA.
Stewart v. Ruston Louisiana Hospital Co., LLC,
no. 3:14-Cv-00083-rgJ-Klh, 2014 Wl 1246139
(W.d. la. mar. 25, 2014).
Magistrate Judge Karen L. hayes of the u.S. District Court
for the Western District of Louisiana denied the plaintiffs’
motion to remand a class action alleging various violations
of state law related to the defendants’ billing and collec-
tion practices. The plaintiffs advanced two arguments
in support of remand: (i) the defendants did not prove
that CAFA’s $5 million amount-in-controversy threshold
had been met and (ii) the local-controversy exception
applied. The court was unconvinced by the plaintiffs’
first argument, relying on a declaration submitted by the
defendants showing that over $10 million was collected on
behalf of the hospital defendants by the collection agency
defendant. The court also held that the plaintiffs failed
to provide sufficient evidence that the local-controversy
exception applied. Specifically, the plaintiffs did not offer
evidence showing that at least two-thirds of the expansive-
ly defined class were residents of Louisiana, a requirement
for invoking this CAFA exception. The court noted that the
plaintiffs could have limited the class to unnamed residents
or citizens of Louisiana, but chose not to, belying their argu-
ment that the local-controversy exception applied.
Michelle’s Restaurant of Georgetown, Inc.
v. Advanced Disposal Services, Inc.,
no. 4:13-Cv-488 Cdl, 2014 Wl 824211
(m.d. ga. mar. 3, 2014).
Judge Clay D. Land of the u.S. District Court for the
Middle District of georgia denied the plaintiffs’ motion
to remand after finding that the amount in controversy
exceeded $5 million. The plaintiffs contracted with the
defendants for solid waste disposal services. When the
relationship soured, the plaintiffs filed a putative class
action alleging claims for trespass, unjust enrichment,
(continued on next page)
the Class Action Chronicle | 22
breach of contract and violation of georgia’s Racketeer
Influenced & Corrupt Organizations (RICO) Act. The
RICO claims were based on the defendants’ collection of
various fees, including a “fuel surcharge,” a “fuel/envi-
ronmental fee,” and “administration fees.” In support of
removal, the defendants produced affidavits stating that
they had “recognized revenues” attributable to the fees
that the plaintiffs challenged in excess of $5 million during
the time period alleged in the complaint. The court accept-
ed this evidence and held that the defendants had shown
by a preponderance of the evidence that the amount in
controversy exceeded the jurisdictional minimum.
Clements v. DIRECTV, LLC, no. 4:13-cv-4048,
2014 Wl 794287 (W.d. Ark. feb. 27, 2014).
Judge Susan O. hickey of the u.S. District Court for
the Western District of Arkansas denied the plaintiffs’
motion to remand in a putative class action alleging
that DIRECTv converted Arkansas customers’ property
when it made unauthorized charges on their credit and
debit cards. The court found that DIRECTv had carried its
burden of showing by a preponderance of the evidence
that CAFA’s amount-in-controversy requirement had been
met. DIRECTv submitted a declaration stating that it had
initiated charges of $5,599,114.61 on Arkansas residents’
credit and debit cards during the class period. This
amount, which exceeded $5 million, did not take punitive
damages and attorneys’ fees into consideration. Further,
plaintiffs had offered no evidence showing that it was
legally impossible to recover in excess of $5 million. The
court also concluded that DIRECTv had established by a
preponderance of the evidence that the class was made
up of at least 100 members.
decisions granting motion to remand/finding
no CAfA Jurisdiction
Perritt v. Westlake Vinyls Co., — f. App’x —-,
2014 Wl 1410256 (5th Cir. Apr. 14, 2014).
A unanimous panel of the u.S. Court of Appeals for the
Fifth Circuit (Davis, Southwick and higginson, JJ.) affirmed
the district court’s order remanding consolidated class
actions to state court. The plaintiffs sought damages
resulting from an explosion at the defendants’ factory that
released toxic chemicals into the local area. The defen-
dants removed all of the class actions resulting from the
explosion. The district court determined that the cases
did not satisfy the 100-plaintiff and $5 million jurisdictional
threshold, and the court of appeals agreed. According
to the court, the defendants were still required to either
submit summary judgment evidence of the amount in
controversy and number of class members or demonstrate
that it was “facially apparent” from the plaintiffs’ plead-
ings that CAFA’s requirements were met. The defendants
had submitted an affidavit to the district court that did not
provide any estimate of the claims that the defendants
would be required to pay and did not contain sufficient
facts that would help the court determine the number of
class members. Remand was therefore appropriate.
Parson v. Johnson & Johnson, — f.3d. —,
2014 Wl 1399750 (10th Cir. Apr. 11, 2014).
A unanimous panel of the u.S. Court of Appeals for
the Tenth Circuit (Briscoe, C.J., McKay and Anderson,
JJ.) affirmed the district court’s decision remanding 11
product liability actions brought by 650 plaintiffs against
manufacturers of transvaginal mesh medical devices.
At the outset, 702 plaintiffs from 26 different states and
Puerto Rico brought 12 “nearly identical” actions against
the defendants, corporate residents of New Jersey, in
the same Oklahoma state court. None of the individual
actions contained 100 or more plaintiffs, each action
included at least one New Jersey resident plaintiff and all
12 actions were assigned to the same state court judge.
The complaints stated that the claims had been joined for
the purpose of pretrial discovery and proceedings but dis-
claimed joinder for trial purposes. The Tenth Circuit rejected
the claim that these filings constituted “gamesmanship”
intended to evade jurisdiction under CAFA. Analyzing
CAFA’s statutory text, legislative history and case law
interpreting the “mass action” provision, the court con-
cluded that “[f]ar from ‘proposing’ a joint trial” as required
to constitute a mass action, the “plaintiffs here have
explicitly disclaimed such an intention in their complaints.”
Nevertheless, the Tenth Circuit also noted that the actions
could become removable if the plaintiffs later sought to join
their claims for trial, and Judge Anderson wrote separately
to stress that the real possibility of joint trial meant that the
removals might simply have been “premature.”
Myers v. B.J.’s Wholesale Club, Inc., no. 13-05504,
2014 Wl 1923277 (e.d. Pa. may 14, 2014).
Judge Thomas N. O’Neill, Jr. of the u.S. District Court for
the Eastern District of Pennsylvania granted the plaintiffs’
motion to remand in this class action alleging violations
of the Pennsylvania unfair Trade Practices and Consumer
Protection Law and common law unjust enrichment. The
plaintiffs claimed that B.J.’s overcharged customers by
charging Pennsylvania sales tax on original rather than
discount prices of items. The defendant removed the case
under CAFA, and the plaintiffs moved for remand. The
court held that B.J.’s had not met its burden of establish-
ing that the amount in controversy exceeded $5 million
because it was impossible at the time of the decision to
determine the precise number of class members who
had been overcharged. According to the court, a plaintiff
is “the master of his own claim and may limit his claim so
as to avoid federal subject-matter jurisdiction.” The court
(continued on next page)
the Class Action Chronicle | 23
had to assess jurisdiction at the present time, and because
the defendant did not prove to a legal certainty that the
amount in controversy exceeded $5 million, the court
remanded the case to state court. In so doing, the court
explained that the defendant could always remove
at a later date upon receipt of information demonstrating
to a legal certainty that the plaintiffs are seeking more than
$5 million.
Horneland v. U.S. Bank, N.A.,
no. 8:14-cv-527-t-30tgW, 2014 u.s. dist. leXis 61388
(m.d. fla. may 2, 2014).
Judge James S. Moody, Jr. of the u.S. District Court for
the Middle District of Florida remanded a putative class
action, finding that the defendant bank did not establish
CAFA’s $5 million amount-in-controversy threshold by a
preponderance of the evidence. The suit alleged that the
bank failed to promptly apply mortgage loan prepayments
of principal to its consumers’ accounts. The putative
class encompassed borrowers who owned property in
Florida under a mortgage serviced by the bank and whose
prepayments were not promptly applied to their accounts.
The defendant bank submitted an affidavit with its notice
of removal providing two estimates purporting to establish
that more than $5 million was at stake. These calculations
were based on the bank’s holding the subject prepay-
ments in suspense for two time periods: (i) from as early
as March 2011 through the present time or (ii) for four
months. According to the court, these two time periods
did not necessarily reflect the periods in which the subject
prepayments were actually held in suspense, undermin-
ing the utility of the bank’s affidavit. Further, while the
bank advanced another calculation in its response to the
motion to remand, the court rejected that one as well.
That calculation simply multiplied the $776.84 claimed by
the plaintiff as the excess interest he paid by the number
of residential mortgages the defendant holds or services in
Florida. however, there was no basis for assuming that the
plaintiff’s claim was typical of all class members.
Opelousas General Hospital Authority
v. PPO Plus LLC, no. 14-0395, 2014 Wl 1713414
(W.d. la. Apr. 29, 2014).
Judge Richard T. haik, Sr. of the u.S. District Court for
the Western District of Louisiana granted the plaintiff’s
motion to remand the case to Louisiana state court. The
plaintiff, representing a purported class of health care
providers, alleged that the defendants violated various
Louisiana statutes related to processing and applying
discounts to medical bills. The bill processor, healthSmart,
removed to federal court under CAFA, arguing that the
local-controversy exception did not apply. In holding that
the local-controversy exception applied, the court found
that PPO Plus was a “significant defendant” because it
directly contracted with the plaintiff for discounted rates
and allowed other entities, such as healthSmart, to apply
those rates when processing and paying the plaintiff’s
medical bills.
Carolyne v. USPLabs, LLC,
no. Cv 14-00620 sJo (JCgx), 2014 Wl 1118017
(C.d. Cal. mar. 19, 2014), and Little v. USPLabs LLC,
no. Cv 14-01540 ddP (shx), 2014 Wl 1660237
(C.d. Cal. Apr. 25, 2014).
In these two virtually identical cases, Judges S. James
Otero and Dean D. Pregerson of the u.S. District Court for
the Central District of California remanded putative “mass
actions” arising from the manufacturing and marketing of
purportedly harmful dietary supplements. Both judges con-
cluded that the 100-claimant threshold for mass actions
under CAFA had not been satisfied. In so doing, the
judges refused to aggregate the plaintiffs in related cases
filed by the same counsel, as well as potential plaintiffs
listed in a “Notice of Claims” submitted by the plaintiffs’
counsel. The judges also rejected the defendants’ claim
that the plaintiffs “implicitly propose to try their claims
jointly,” based on “the well-established rule that plaintiffs,
as masters of their complaint, may choose their forum
by selecting state over federal court and with the equally
well-established presumption against federal removal
jurisdiction.” Finally, the judges also found that federal-
question jurisdiction did not exist because the plaintiffs
had asserted purely state law claims that did not turn on
the interpretation of the Food Drug & Cosmetic Act.
Manier v. Medtech Products, Inc.,
no. 14cv209-gPC(nls), 2014 Wl 1609655
(s.d. Cal. Apr. 22, 2014).
The plaintiffs sought remand of their putative class action
asserting consumer protection and breach-of-warranty
claims under California law arising from the alleged decep-
tive marketing and sale of ear drops, because the defen-
dants had failed to show that the amount in controversy
exceeded the $5 million required for CAFA jurisdiction.
Judge gonzalo P. Curiel of the u.S. District Court for the
Southern District of California agreed, finding that the
plaintiffs’ claims that the defendants had been enriched by
“millions of dollars” and the defendants’ estimates of the
value of the requested injunctive relief failed to establish
by a preponderance of the evidence that the amount in
controversy exceeded $5 million, particularly given the low
cost of the product and the limited class period, which
totaled roughly eight months.
the Class Action Chronicle | 24
National Consumers League v. Flowers Bakeries, LLC,
no. 13-1725 (esh), 2014 u.s. dist. leXis 48221
(d.d.C. Apr. 8, 2014).
Judge Ellen Segal huvelle of the u.S. District Court for
the District of Columbia remanded a case after finding
that it did not qualify as either a “class action” or “mass
action” under CAFA. The National Consumers League
(NCL) brought suit against the defendant bakery company
on behalf of the “general public,” alleging violations of the
D.C. Consumer Protection Procedures Act (DCCPPA). The
plaintiff alleged that the defendant engaged in deceptive
marketing of certain bakery products and sought various
forms of relief, including restitution and statutory dam-
ages under the DCCPPA. The defendant removed the
case, invoking traditional diversity of citizenship, as well as
CAFA. The court rejected both theories and remanded the
case to the D.C. Superior Court. With respect to CAFA,
Judge huvelle concluded that the suit brought by the NCL,
acting as a private attorney general, did not constitute a
class action under CAFA because, inter alia, it was not
brought under Rule 23 of the D.C. Superior Court Rules of
Civil Procedure. The court also found that the lawsuit did
not amount to a mass action under CAFA, relying on the
u.S. Supreme Court’s ruling in Mississippi ex rel. Hood v.
AU Optronics Corp., 134 S. Ct. 736, 744 (2014), that parens
patriae suits brought by state attorneys general do not
satisfy the “100 or more persons” requirement of CAFA.
Louisiana v. Zealandia Holding Co., no. 13-6724,
2014 Wl 1378874 (e.d. la. Apr. 8, 2014).
Judge Eldon E. Fallon of the u.S. District Court for the
Eastern District of Louisiana granted the plaintiff’s motion to
remand the case to Louisiana state court. The plaintiff, the
State of Louisiana, brought a parens patriae action based
on alleged violations of the Louisiana unfair Trade Practices
Act (LuTPA) and various state promotional contest statutes
against the defendants, who had sold memberships in a
vacation club to Louisiana consumers. The defendants
removed the action under CAFA. The plaintiff argued
that the u.S. Supreme Court’s decision in Mississippi ex
rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014),
which held that CAFA did not provide jurisdiction over a
parens patriae action brought by the state, precluded the
defendants from asserting jurisdiction under CAFA. The
defendants argued that Hood was distinguishable because,
in that case, the parens patriae action was brought under a
Mississippi statute that did not allow the state to assert a
class. In contrast, the defendants argued that the Louisiana
statutes and rules at issue not only allowed Louisiana to
assert claims on behalf of a class, but required it to do
so in order to obtain the relief requested. The defendants
also asserted that the Louisiana statutes and rules were
sufficiently similar to Rule 23 to create federal jurisdiction
under CAFA. The plaintiff argued that LuTPA was not suf-
ficiently analogous to a class action statute or rule because
(i) individuals are required to opt in rather than opt out;
(ii) the attorney general is not the individuals’ representa-
tive, but instead brings the action on behalf of the state
and (iii) LuTPA does not contain any notice requirements.
The plaintiff further argued that treating LuTPA as a class
action statute or rule would force the state’s attorney
general into the role of private attorney for the Louisiana
consumers. The court concluded that the parens patriae
action was not a mass or class action. The court noted that
Louisiana had not asserted a proposed or certified class
under Rule 23 or an analogous state statute, and therefore
the action was not removable under CAFA. The court also
held that the parens patriae action was not inherently a
class action because LuTPA allows the attorney general
to either seek relief in a parens patriae action or to bring a
class action on behalf of named and unnamed consumers.
Premo v. Family Dollar Stores of Massachusetts, Inc.,
no. 13-11279-tsh, 2014 Wl 1330911
(d. mass. mar. 28, 2014).
Judge Timothy S. hillman of the u.S. District Court for the
District of Massachusetts remanded a putative wage-and-
hour class action to state court based on CAFA’s local-con-
troversy exception. The court explained that the exception
applied because the principal alleged injuries — in violation
of Massachusetts’s overtime laws — took place only in
Massachusetts. Further, the plaintiff had moved to amend
his complaint to eliminate the parent company (which
argued it was not a proper party to the case). Relying upon
Kaufman v. Allstate New Jersey Insurance Co., 561 F.3d
144 (3d Cir. 2009), the court determined that once the
complaint was amended to eliminate the parent company,
there was no defendant against whom a similar lawsuit
had been asserted within three years.
Romulus v. CVS Pharmacy, Inc., no. 13-10305-rWZ,
2014 Wl 1271767 (d. mass. mar. 27, 2014).
Judge Rya W. Zobel of the u.S. District Court for the
District of Massachusetts remanded for a second time a
putative wage-and-hour class action (alleging that certain
nonexempt employees were not permitted to take meal or
rest breaks), this time on the ground that CvS’s removal
was untimely. The court had remanded the case the
first time because CvS did not show that the amount in
controversy exceeded CAFA’s $5 million threshold. CvS
removed a second time, asserting that new information
allowed it to demonstrate that the $5 million threshold
was exceeded. But CvS could not identify an amended
pleading, motion or other paper that had allowed it to
ascertain that the case was removable, making the second
removal untimely. According to the court, an email from
the plaintiffs to CvS communicating a “limited” analysis of
shift supervisor time punch data that originated with the
defendant likely did not constitute “other paper” contem-
(continued on next page)
the Class Action Chronicle | 25
plated by the statute. But even if it did, the court held, the
email did not contain any “new information” in support of
removal. As part of its ruling, the court declined to apply
Roth v. CHA Hollywood Medical Center, L.P., 720 F.3d
1121 (9th Cir. 2013), in which the u.S. Court of Appeals for
the Ninth Circuit held that a defendant could remove at any
time based on its own investigation as long as the 30-day
period in 28 u.S.C. § 1446(b) had not run.
Strickland v. Visible Measures Corp., no. 4:13-cv-4030,
2014 Wl 1233105 (W.d. Ark. mar. 25, 2014).
Judge Susan O. hickey of the u.S. District Court for
the Western District of Arkansas granted the plaintiffs’
motion to remand for lack of jurisdiction under CAFA in a
case alleging that the defendant engaged in the improper
placement of “Flash Cookies” onto computers in violation
of Arkansas statutory and common law. The plaintiffs’ first
amended complaint contained a stipulation that the class
would not seek damages in an amount over $5 million.
The defendant did not remove the action to federal court.
Subsequently, however, the u.S. Supreme Court held in
Standard Fire Insurance Co. v. Knowles, 133 S. Ct. 1345
(2013), that stipulations such as the one in the plaintiffs’
complaint do not prevent removal under CAFA. Following
the Supreme Court’s decision in Knowles, the defendant
removed the case to federal court. The court concluded
that removal was untimely, however, because the damag-
es stipulation in the first amended complaint did not make
removal futile. Moreover, the Supreme Court’s decision in
Knowles was not an “order” that triggered removal under
28 u.S.C. § 1446(b)(3).
Coco v. Heck Industries, Inc., no. 13-3059,
2014 Wl 1029994 (W.d. la. mar. 17, 2014).
Chief Judge Dee D. Drell of the u.S. District Court for the
Western District of Louisiana granted the plaintiffs’ motion
to remand a nuisance case to Louisiana state court, finding
that CAFA’s local-controversy exception applied because
(i) at least two-thirds of the plaintiffs in the putative class
were Louisiana citizens; (ii) the only defendant also was a
citizen of Louisiana; (iii) the alleged injuries were incurred
in Louisiana and (iv) there was no evidence of a prior class
action having been filed. The court noted that for diversity
purposes, “citizenship means domicile.” In determining
that two-thirds of the plaintiffs’ class were citizens of
Louisiana, the court used a “common sense” approach
and noted that it was “more probable than not” that at
least two-thirds of the class plaintiffs were not merely
“located” in Louisiana, but were actually citizens of, and
domiciled in, Louisiana.
Cedar Lodge Plantation, LLC v. CSHV Fairway View I,
LLC, no. 13-129-BAJ-sC, 2014 Wl 972033
(m.d. la. mar. 12, 2014).
Chief Judge Brian A. Jackson of the u.S. District Court
for the Middle District of Louisiana granted the plaintiffs’
motion to remand a case to state court involving the
alleged discharge of hazardous substances onto plaintiffs’
property. The court ruled that the plaintiffs’ amended
complaint, which added a local defendant, triggered
CAFA’s local-controversy exception, requiring remand.
The court also noted that the plaintiffs presented suf-
ficient evidence to show that they did not engage in forum
manipulation because they did not learn of the additional
defendant’s potential liability until after the defendants
removed the action.
Reilly v. Amy’s Kitchen, Inc., no. 13-21525-Civ,
2014 Wl 905419 (s.d. fla. mar. 7, 2014).
Judge James I. Cohn of the u.S. District Court for the
Southern District of Florida granted the defendant’s motion
to dismiss for lack of subject-matter jurisdiction after
finding that the plaintiff failed to establish that the value
of injunctive relief sought would exceed $5 million. The
plaintiff alleged that she purchased three of the defendant’s
food products containing allegedly misleading labeling
and brought claims on behalf of all Florida consumers
who purchased any of the defendant’s products with the
same misrepresentation. On its motion to dismiss, the
defendant argued that CAFA’s $5 million jurisdictional
threshold was not met because Florida sales for the three
products purchased by the plaintiff totaled only $1,045,993
during the class period. The plaintiff argued that the
amount in controversy is established at the time of filing
the complaint — and that post-filing developments, such
as the court’s dismissal of claims related to 57 products
the plaintiff had not purchased, do not divest the court
of subject-matter jurisdiction — but the court disagreed,
holding that the plaintiff lacked standing to bring claims
based on those other products even at the time of filing.
Thus, the required $5 million was never in controversy.
The court also held that while the plaintiff was correct that
attorneys’ fees and costs could be included in the amount
in controversy, the plaintiff failed to place any dollar
amount on that figure. In any event, it was inconceivable
that attorneys’ fees would raise the amount in controversy
from $1,045,993 to $5 million. Finally, the court ruled
that the value of the injunctive relief requested — barring
the defendant from using misleading labeling — was too
speculative to bring the aggregate amount in controversy
above the $5 million threshold.
the Class Action Chronicle | 26
Rainbow Gun Club, Inc. v. Denbury Resources, Inc.,
no. 2:13-Cv-590, 2014 Wl 869504
(W.d. la. mar. 5, 2014).
Judge Patricia Minaldi of the u.S. District Court for the
Western District of Louisiana affirmed the magistrate
judge’s order granting the plaintiffs’ motion to remand in a
mass action involving alleged negligence in drilling a well.
The court remanded the case under CAFA’s “local single
event” exception for mass actions. In its ruling, the court
noted that every occurrence or event is “invariably divisible
into increasingly tiny units of time,” but that each of the
plaintiffs’ allegations were related to the negligent drilling
of the well, which was one overarching event, making the
exception applicable.
West v. Nissan North America, Inc., no. 4:13-cv-4070,
2014 Wl 825217 (W.d. Ark. mar. 4, 2014).
Judge Susan O. hickey of the u.S. District Court for the
Western District of Arkansas granted the plaintiff’s motion
to remand to state court for lack of CAFA jurisdiction. The
case involved allegations that the 2004-2006 models of
certain Nissan vehicles possessed faulty braking systems
and that Nissan concealed the defect from customers.
The second amended complaint contained a stipulation
that damages would not be accepted if they caused the
amount in controversy to exceed $5 million. It was not until
the plaintiff filed an amended motion for class certifica-
tion — two years after the filing of the complaint — that
the defendant removed the action to federal court. The
court first concluded that the plaintiff’s amended motion
for class certification, which included additional arguments
regarding the 2007 and 2008 models of the vehicles at
issue, did not modify the relief the plaintiff was seeking.
Because the complaint included only the 2004-2006
models, only those models were relevant to determin-
ing the amount in controversy under CAFA. Second, the
court held that the defendant’s attempt to remove the
action was untimely. The filing of the amended motion for
class certification did not trigger removal; nor did the u.S.
Supreme Court’s decision in Standard Fire Insurance Co. v.
Knowles, 133 S. Ct. 1345 (2013), which held that stipula-
tions such as the one in the plaintiff’s complaint do not
prevent removal under CAFA.
McDaniel v. Fifth Third Bank,
no. 6:13-cv-01878-gAP-gJK, 2014 Wl 805508
(m.d. fla. feb. 28, 2014).
Judge gregory A. Presnell of the u.S. District Court for
the Middle District of Florida granted the plaintiff’s motion
to remand after finding that the amount in controversy
did not meet CAFA’s $5 million jurisdictional requirement.
The lawsuit arose out of the defendant bank’s practice of
charging non-account holders, who wished to cash checks
at the bank’s branch offices, a $4 fee. The plaintiff sought
to represent a class of non-account holding persons in
Florida who were so charged. The plaintiff’s complaint
asserted nine causes of action, including fraud, fraud in the
inducement and violation of Florida’s Consumer Collection
Protection Act (FCCPA). While the parties agreed that the
total amount of compensatory and statutory damages
did not exceed $3 million, the defendant nevertheless
removed the case to federal court on the basis that the
jurisdictional threshold was met with the addition of
the plaintiff’s claim for punitive damages. In evaluating
whether punitive damages were legally recoverable in
the case, the court found that the plaintiff did not appear
to have viable fraud claims. Moreover, the FCCPA, the
only other basis to recover punitive damages, limited the
amount of punitive damages recoverable to $1.5 million.
Thus, the defendant could not establish that the amount-
in-controversy requirement was satisfied.
West Virginia ex rel. McGraw v. Bristol Myers Squibb
Co., no. 13-1603 (flW), 2014 Wl 793569
(d.n.J., feb. 26, 2014).
Judge Freda L. Wolfson of the u.S. District Court for
the District of New Jersey found that the court lacked
jurisdiction under CAFA over an action alleging that the
defendants engaged in unfair and deceptive marketing
practices relating to the efficacy of Plavix, an anti-clotting
prescription drug. Because the suit was a parens patriae
action brought by the state on behalf of its citizens, and
the state was the only named plaintiff, the case was not
removable in accordance with the u.S. Supreme Court’s
decision in Mississippi ex rel. Hood v. AU Optronics Corp.,
134 S. Ct. 736 (2014).
the Class Action Chronicle | 27
ContriButors
Practice Leader
John h. Beisner
Partner | Washington, D.C.
202.371.7410
john.beisner@skadden.com
Contributing Partners
lauren e. Aguiar
New York
212.735.2235
lauren.aguiar@skadden.com
david s. Clancy
Boston
617.573.4889
david.clancy@skadden.com
Anthony J. dreyer
New York
212.735.3097
anthony.dreyer@skadden.com
Jessica d. miller
Washington, D.C.
202.371.7850
jessica.miller@skadden.com
steven f. napolitano
New York
212.735.2187
steven.napolitano@skadden.com
Jason d. russell
Los Angeles
213.687.5328
jason.russell@skadden.com
Charles W. schwartz
houston
713.655.5160
charles.schwartz@skadden.com
michael Y. scudder
Chicago
312.407.087
michael.scudder@skadden.com
Contributing Counsel
geoffrey m. Wyatt
Washington, D.C.
202.371.7008
geoffrey.wyatt@skadden.com
Contributing Associates
Brian Baggetta
Senior Staff Associate | Washington, D.C.
202.371.7209
brian.baggetta@skadden.com
matthew s. Barkan
New York
212.735.250
matthew.barkan@skadden.com
Catherine fisher
Boston
617.573.4867
catherine.fisher@skadden.com
lauryn K. fraas
Washington, D.C.
202.371.7578
lauryn.fraas@skadden.com
Kristen J. greeley
Law Clerk | New York
212.735.3389
kristen.greeley@skadden.com
hillary A. hamilton
Los Angeles
213.687.5576
hillary.hamilton@skadden.com
heather A. lohman
houston
713.655.5105
heather.lohman@skadden.com
megan C. manfred
Law Clerk | New York
212.735.3226
megan.manfred@skadden.com
Brittany d. Parling
Chicago
312.407.0547
brittany.parling@skadden.com
nina r. rose
Washington, D.C.
202.371.7105
nina.rose@skadden.com
Jordan m. schwartz
Washington, D.C.
202.371.7036
jordan.schwartz@skadden.com
matthew stein
Boston
617.573.4892
matthew.stein@skadden.com
Caroline van ness
Los Angeles
213.687.5133
caroline.vanness@skadden.com
Jessica n. Walker
Los Angeles
213.687.5373
jessica.walker@skadden.com
Kamali Willett
New York
212.735.2728
kamali.willett@skadden.com
The Class Action Chronicle is published by Skadden’s Mass Torts, Insurance and Consumer Litigation group. In
recent years, we have represented major financial services companies, insurers, manufacturers and pharmaceutical
companies, among others, on a broad range of class actions, including those alleging consumer fraud, antitrust and
mass torts/products liability claims. Our team has significant experience in defending consumer class actions and
other aggregate litigation. We have defended thousands of consumer class actions in federal and state courts
throughout the country and have served as lead counsel in many cases that produced what are today cited as
leading precedents.
Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates provide this newsletter for educational and informational purposes only, and it
is not intended and should not be construed as legal advice. This newsletter is considered advertising under applicable state laws.

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