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Posts tagged as “Class Actions”

3rd Cir. Holds Defendants Arguing Class Not Ascertainable in TCPA Suit Must Still Produce Putative Class Member Info

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…

9th Cir. Holds TCPA Claim Not Covered Due to ‘Invasion of Privacy’ Exclusion

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…

6th Cir. Upholds Denial of Class Certification in TCPA ‘Junk Fax’ Case

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.…

6th Cir. Questions Bank’s Contractual Limit on Liability for Fraudulent Checks

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…

9th Cir. Rules Mortgage Underwriters Not Exempt Under FLSA

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…

NJ Fed. Court Dismisses Technical FACTA Violation Putative Class Action Citing Spokeo

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.…

7th Cir. Rules Depositing Named Plaintiff’s Full Monetary Relief With Trial Court Did Not Moot Putative Class Action

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…

7th Cir. Rejects Narrow Reading of TCPA Consent

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…

SCOTUS Holds Class Plaintiffs Cannot Voluntarily Dismiss Claims to Appeal Denial of Class Cert

The Supreme Court of the United States recently held that class action plaintiffs cannot stipulate to a voluntary dismissal with prejudice, then appeal the trial court’s prior interlocutory order striking their class allegations because a voluntary dismissal does not qualify as a “final decision” under 28 U.S.C. §1291 and improperly circumvents Federal Rule of Civil Procedure 23(f). A copy of the opinion in Microsoft Corp. v. Baker et al. is available at:  Link to Opinion. A group of purchasers of Microsoft’s Xbox 360 gaming console filed a putative class action alleging that the Xbox was designed defectively because it scratched…

8th Cir. Upholds Dismissal of TCPA Class Action Based on Consent Shown in Heavily Redacted Records

The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a putative class action brought under the federal Telephone Consumer Protection Act (TCPA) for making unsolicited telemarketing calls. The Eighth Circuit held that the plaintiff had given prior express written consent to receive the calls, and the trial court properly considered redacted business records that showed the consumer had given his prior express written consent to be called. A copy of the opinion in Zean v. Fairview Health Services is available at:  Link to Opinion. A consumer who purchased a medical device filed a putative class…

8th Cir. Holds Removal Proper Where Absence of CAFA Jurisdiction Not ‘Established to a Legal Certainty’

The U.S. Court of Appeals for the Eighth Circuit recently held that the requirements for the federal Class Action Fairness Act (CAFA) were met and the matter was properly removed to federal court, where the plaintiffs could not “establish to a legal certainty” that their claims were for less than the requisite amount. A copy of the opinion in Dammann v. Progressive Direct Insurance Company is available at:  Link to Opinion. The plaintiff insureds purchased automobile insurance from the insurer. The insureds’ policies required deductible payments of $100 for medical expense payments and $200 for economic loss payments.  Both policies provided…

4th Cir. Vacates $11M FCRA Class Action Judgment Citing Spokeo

Relying on Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the U.S. Court of Appeals for the Fourth Circuit recently vacated and remanded for dismissal a trial court’s summary judgment ruling in favor of the plaintiff in an $11 million, 69,000 member class action under the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., where the defendant credit reporting agency listed the name of a defunct credit card issuer instead of the name of the servicer as the source of information on the plaintiff’s credit report. In so ruling, the Fourth Circuit held that the…