The U.S. Court of Appeals for the Third Circuit recently reversed an order denying a motion to compel production of a marketing database of putative class members in a federal Telephone Consumer Protection Act (TCPA) lawsuit. In so ruling, the Third Circuit held that: (1) defendants arguing that a class is not ascertainable should be required to produce information in its possession about putative class members during discovery, and (2) although affidavits from potential class members alone do not satisfy the ascertainability standard for class certification, such affidavits in combination with other records can meet the ascertainability standard. A copy of…
Posts published in “Class Actions”
Class Actions
The U.S. Court of Appeals for the Ninth Circuit recently held that a plaintiff cannot force remand of a federal Class Action Fairness Act (CAFA) removal under the home-state controversy exception when only a portion of the putative class met the two-thirds citizenship requirement. A copy of the opinion Brinkley v. Monterey Financial Services, Inc. is available at: Link to Opinion. A financial services company (“defendant”) allegedly recorded or monitored its telephone conversations with the plaintiff without giving her notice. The plaintiff brought this action in California state court “alleging (1) invasion of privacy in violation of California and Washington state law; (2) unlawful…
The U.S. Court of Appeals for the Ninth Circuit recently held that a liability insurance policy that broadly excluded coverage for invasion of privacy claims also excluded coverage for claims for violations of the federal Telephone Consumer Protection Act. A copy of the opinion in L.A. Lakers v. Federal Ins. Co. is available at: Link to Opinion. In 2012, a class action complaint was filed against the Los Angeles Lakers for allegedly sending text messages using an automatic telephone dialing system in violation of the TCPA, 47 U.S.C. § 227, et seq. The Lakers asked their insurer to defend them against…
The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a putative class action complaint alleging various causes of action relating to the cybertheft of personally identifiable information, based in part on the plaintiffs failure to adequately allege any damages caused by the data breach or how the defendant breached the terms of its agreement . A copy of the opinion in Kuhns v. Scottrade, Inc. is available at: Link to Opinion. The defendant securities brokerage firm suffered an attack by hackers in which the hackers successfully accessed the firm’s customer database extracting personally identifiable information…
The U.S. Court of Appeals for the Ninth Circuit recently held that a defendant could not be held vicariously liable under the federal Telephone Consumer Protection Act (TCPA) because the phone calls at issue were made by a company whose telemarketers were independent contractors, and thus were not acting as the defendant’s agents under the federal common law of agency. A copy of the opinion in Jones v. Royal Admin. Svcs. is available at: Link to Opinion. A company that sold automobile service contracts, sometimes called extended warranties, contracted with a telemarketing company to sell its products. The agreement set forth…
The U.S. Court of Appeals for the Fourth Circuit recently held that a defendant invoking jurisdiction under the federal Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d), must provide sufficient evidence to allow the court to determine – not speculate – that it was more likely than not that there were at least 100 class members and the aggregate amount in controversy exceeded $5 million. A copy of the opinion in Scott v. Cricket Communications, LLC is available at: Link to Opinion. Between July 2013 and March 2014, a consumer purchased two Samsung Galaxy S4 cell phones from the defendant…
The U.S. Court of Appeals for the Sixth Circuit recently held that a class could not be certified because the defendant’s alleged liability under the federal Telephone Consumer Protection Act (TCPA) for sending a “junk fax” without an opt-out notice required determination of two individualized issues, which rendered class certification impracticable. In so ruling, the Sixth Circuit concluded that with the absence of a fax log to identity each recipient, and without an alternative method of identifying class members who had provided consent to receive the fax, the plaintiff failed to prove that its proposed class satisfied Fed. R. Civ.…
The U.S. Court of Appeals for the Sixth Circuit recently reversed the dismissal of a class action lawsuit filed by a bank account holder who asserted that the bank violated the Uniform Commercial Code 4-401 and 4-103(a), dealing with liability for fraudulent checks. The account holder experienced check fraud and the bank refused liability because the master services agreement for the account contained a liability waiver for failure to purchase fraud protection products, which the account holder had not done. A copy of the opinion in Majestic Building Maintenance, Inc. v. Huntington Bancshares Inc. is available at: Link to Opinion. The…
The U.S. Court of Appeals for the Ninth Circuit recently held that mortgage underwriters were not exempt under the federal Fair Labor Standards Act (FLSA) and were therefore entitled to overtime compensation for hours worked in excess of 40 per week. After analyzing the specific details of the underwriters’ responsibilities, the Ninth Circuit panel concluded that, because the underwriters’ primary job duty did not relate to their employer bank’s management or general business operations, the administrative employee exemption to the FLSA’s overtime requirements did not apply. Recognizing that there was a split between the Second Circuit and Sixth Circuit as…
The U.S. District Court for the District of New Jersey recently concluded that a putative class representative did not have standing under Spokeo to sue for a technical violation of the federal Fair and Accurate Credit Transactions Act (FACTA). The Court identified the issue as whether the consumer alleges a sufficiently “concrete” harm to confer standing, based on a technical violation of FACTA, 15 U.S.C. § 1681, et seq., when a retail store printed the first six numbers and last four numbers of his credit card on his transaction receipts. Relying on the Supreme Court’s ruling in Spokeo Inc. v.…
The U.S. Court of Appeals for the Seventh Circuit recently concluded that a putative class representative’s unaccepted deposit of payment with the trial court under Fed. R. Civ. P. 67 by the defendant does not moot the representative’s individual claim or disqualify him from serving as a class representative. The Seventh Circuit described the issue as a variation of the one presented in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). As you may recall, in that case, the Supreme Court concluded that an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case. The specific…
The U.S. Court of Appeals for the Seventh Circuit recently concluded that a consumer’s consent to receive promotional information from a retailer is sufficient consent under the federal Telephone Consumer Protection Act (TCPA) to receive other mass marketing texts. The primary issue the Seventh Circuit addressed was the scope of the consent the consumer provided when she gave her cell phone number to the retailer. The consumer argued that she only provided her cell phone number to receive special discount offers, and did not consent to “mass marketing” text messages. The Seventh Circuit rejected the argument, and determined that the…