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April 23, 2024
|2 min read
To Be or Not to Be a Transportation Worker, That Is the Question
Depending on how the Supreme Court decides Bissonnette, restaurants may have increased exposure to class actions by independent distributors, such as the plaintiffs in Bissonnette.
March 28, 2024
|2 min read
Shining a Light on the Importance of Article III Standing in Class Settlements
In Smith v. Miorelli, the United States Court of Appeals for the Eleventh Circuit reminded litigants of the importance of Article III standing, even where the parties agree to settle. Federal courts do not have authority to adjudicate a claim or to award a specific form of relief unless the plaintiff first satisfies this jurisdictional requirement.
February 28, 2024
|3 min read
Cy pres provisions are often used in class action settlement agreements. Under such provisions, settlement funds that go unclaimed by class members are distributed to one or more third parties, usually a charity, legal-services organization, or other entity with some relation to the underlying dispute.
February 8, 2024
|18 min read
Class Actions 101: Defeating Motions for Class Certification in Rule 23(b) Cases
Class certification is the most important moment of any putative class action. Before class certification, the defendant’s exposure beyond the individual claim is still theoretical rather than concrete. But certification of a class allows a single plaintiff (or a small group of plaintiffs) to formally pursue the claims of numerous absent individuals, which raises the stakes for defendants. This article will explain basic strategies defendants should consider in class certification briefing.
January 23, 2024
|2 min read
Court Issues Clearer Guidance for Standing in “Session Replay” Litigation
On December 5, 2023, the U.S. District Court for the Eastern District of Pennsylvania in In Re: BPS Direct, LLC, and Cabela’s, LLC, Wiretapping (No. 2:22-cv-04709) dismissed several proposed class action claims on “session replay” software, limiting the viability of these suits in federal court.
December 12, 2023
|2 min read
Seeking Clarity on Comcast’s “Rigorous Analysis” Requirement
On September 28, 2023, Winston & Strawn LLP filed a Rule 23(f) petition in the Second Circuit requesting permission to appeal the district court’s grant of class certification—seeking clarification with respect to the application of the Supreme Court’s decision in Comcast v. Behrend, 569 U.S. 27 (2013).
November 27, 2023
|11 min read
In recent years, the UK has seen a rising trend of individuals coming together to collectively bring claims against large companies due to the introduction of new European procedural rules allowing for “collective actions”.
November 15, 2023
|3 min read
October 17, 2023
|3 min read
Class Action Insider Spotlight on Partner Troy Yoshino
This week, we welcome to the spotlight Troy Yoshino, who joined Winston earlier this year. Troy is a seasoned litigator who focuses his practice on defending class actions from consumer claims to employment, privacy, financial services, insurance, toxic torts, and more. For over a decade, Troy has been listed as a “Northern California Super Lawyer” by Super Lawyers (2011–2023) and has been recognized by Global Competition Review for “Litigation of the Year – Cartel Defence.”
September 20, 2023
|1 min read
Appeals Court Rules Courts Must Address Class Action Waivers Before Certifying Class
The Fourth Circuit recently vacated a class certification order in a significant customer data breach case, finding the district court erred by failing to first address the effect a class-action waiver (signed by class members) would have on certification.
September 20, 2023
|4 min read
MoCRA Makes Way for Primary-Jurisdiction Defense in PFAS Litigation in the Cosmetic Industry
On December 29, 2022, President Biden signed the Modernization of Cosmetics Regulation Act (MoCRA) into law. One provision of MoCRA charges the FDA to conduct research into the use of perfluoroalkyl and polyfluoroalkyl substances—better known as PFAS—in the cosmetic industry, and to publish a report containing its findings by December 29, 2025.
August 18, 2023
|2 min read
Should the Ninth Circuit’s Waiver Test Be More Closely Scrutinized?
In February 2023, the Ninth Circuit Court of Appeals held in a 2–1 decision that Xerox waived “its right to compel arbitration … against unnamed”class members in Hill v. Xerox Business Services, LLC.
August 10, 2023
|2 min read
The Supreme Court of California’s recent CMA v. Aetna ruling provides a blueprint of the facts needed for organizations to allege standing under section 17204 of the Unfair Competition Law.
August 10, 2023
|3 min read
Protein Power: Defendants Are Beating Back Allegations of Misleading Protein Content
Defendants have found recent success with complete dismissal by the courts, or significantly narrowing, of consumer class action lawsuits alleging that products' advertised protein content is false or misleading.
July 20, 2023
|2 min read
In a recent Ninth Circuit decision, the court affirmed that the key factor in determining whether an attorneys’ fee award in a Rule 23 class action settlement is reasonable is the benefit the class received under the settlement.
June 28, 2023
|2 min read
The Ninth Circuit Court of Appeals held in two companion cases that courts properly can consider the wording on the back labels of products to clarify any ambiguous claims on the front labels.
May 10, 2023
|3 min read
D.C. Circuit Rejects Rule Against “Fail-Safe” Class Certification
In In re White, 2023 WL 2763812 (C.A.D.C., 2023), the D.C. Circuit—splitting with several other circuit courts—reversed a district court’s order that denied class certification because the plaintiffs sought to certify a “fail-safe” class. While acknowledging the recognized criticisms of fail-safe classes, the D.C. Circuit held that a standalone rule against fail-safe classes is an inappropriate and “extra-textual” limitation on certification.
April 18, 2023
|3 min read
With the advent of “work from home” arrangements and the proliferation of instant messaging platforms, many companies have embraced instant messaging applications for their employee’s communications. Instant messaging may be regarded as a more casual form of communication and companies may have shorter retention or no retention policies for these communications. However, as a recent case involving Google’s internal instant messaging shows, the handling of corporate instant messaging data may lead to serious consequences in the complex litigation context.
April 13, 2023
|3 min read
Rule 23(c)(4), Issue Certification, and Circuit Splits Throughout 2023
The Supreme Court has not directly ruled on whether issue certification pursuant to Rule 23(c)(4) should be applied as stringently as the Rule 23(b)(3) predominance requirement for class actions. Currently, there is a split among the circuits, which makes issue certification appear more attainable in some circuits than others. Recent cases denying Rule 23(b)(3) class certification reinforce the motivation for putative classes to consider issue certification.
March 6, 2023
|2 min read
Class Action Insider Spotlight on Partner Chris Murphy
In Winston's Class Action Insider blog's inaugural interview for the Spotlight Series, Partner Chris Murphy shares 2023 class action litigation predictions, recollections of trial successes, and his experience since joining Winston's Class Actions practice.