Category Archives: Class Action Defense Strategies

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Campbell-Ewald v. Gomez: Unaccepted Offers of Judgment Do Not ‘Moot’ a Claim, But Ruling Leaves Door Open For Offers Accompanied by Tender

Last week, the Supreme Court issued its much anticipated decision in Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016). In a 6-3 opinion, Justice Ginsburg, writing for the majority, held that an unaccepted Rule 68 offer of judgment does not “moot” a claim because “[u]nder basic principles of contract law,” an offer without acceptance is a … Continue Reading

Decision May Make Class Action Lawsuits More Difficult to Settle

Written by Robert J. Herrington and Jeff E. Scott. A recent decision by the Ninth Circuit may make it more difficult to settle class action lawsuits where there is a potential for parallel government enforcement action. The authors of this Greenberg Traurig Alert discuss the decision in California v. IntelliGender, LLC, and as a result, … Continue Reading

Class Action Defense Tip – Don’t Forget that UCL Claims Are Equitable

Consumer products companies that face class action litigation in California most often see two causes of action: (i) claims that the company violated California’s infamous Unfair Competition Law (UCL); and (ii) claims that the company has violated the Consumer Legal Remedies Act (CLRA). These statutes are similar in some ways, but they have an important … Continue Reading

Growing Risk for Consumer Products Companies – Issue Classes

I attended the ABA’s National Institute on Class Actions last week in Chicago, and one theme was clear. Plaintiffs’ lawyers are increasingly fond of asking courts to certify cases so-called “issue classes,” invoking Rule 23(c)(4). They believe that they can pressure companies to settle cases by defining a relatively narrow, yet critical, issue for certification … Continue Reading

Wary of Class Action Abuses, Seventh Circuit Slams ‘Scandalous’ Settlement Over Allegedly Defective Windows

Recently, a District Court approved a class action settlement of an action against a manufacturer of allegedly defective windows.  The class representative was lead class counsel’s father-in-law; class counsel was embroiled in separate litigation and a state bar investigation over misappropriation of fees; the proposed settlement awarded class counsel $11 million in attorney’s fees without any … Continue Reading

The Injunction Conundrum – When Can a Class Action Plaintiff Sue for Injunctive Relief?

a href=”http://gtlawconsumerproductscounselor.default.wp1.lexblog.com/files/2014/07/shutterstock_153943454.jpg”>As the Supreme Court has tightened the requirements for certifying a damages class action, some in the plaintiff’s bar have responded by focusing on class actions seeking injunctive relief, particularly in cases against consumer products companies.  To certify a class under Rule 23(b)(2), a plaintiff does not have to demonstrate predominance or superiority, and … Continue Reading

Recent California Appellate Opinion Raises Issue of Concepcion’s Scope

On April 27, 2011, the Supreme Court in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), cleared the way for consumer products companies and other businesses to incorporate class action waivers into their arbitration agreements with customers.  On April 7, 2014, the Second District Court of Appeal in California affirmed the denial of a … Continue Reading

Supreme Court to Address Requirements for Class Action Removal

Consumer products companies are frequently the targets of nationwide class actions, and a common defense strategy includes removing these cases to federal court under the Class Action Fairness Act of 2005. “CAFA” provides federal jurisdiction over certain class actions where the amount in controversy  exceeds $5 million. See 28 U.S.C.  §§ 1332(d)(2), (5). On April 7, 2014, the … Continue Reading

National Survey Identifies Top Consumer Questions on GMOs

We frequently address issues relating to litigation over products advertised as “all natural” or containing genetically modified organisms, or GMOs. As interest in GMOs has grown (along with related litigation), an initiative known as GMO Answers has published new survey results identifying consumers’ top 10 questions about GMOs. GMO Answers is funded by the members of The … Continue Reading

Ninth Circuit Rejects ‘Gotcha’ Class Actions Under California Privacy Law

Consumer products companies increasingly do business online, which means they frequently collect, and sometimes share, customers’ personal information.  That practice makes companies potential class action targets under various privacy laws.  Recently, the Ninth Circuit rejected three similar putative class actions under California’s “Shine the Light” law (STL), Cal. Civ. Code §§ 1798.83-1798.84, and Unfair Competition Law … Continue Reading

Variability in Consumer Experience Dooms Class Action

Berger v. Home Depot USA, Inc., No. 11-55592 (9th Cir. Feb. 3, 2014) This is a great decision for retailers and consumer products companies. The court affirmed a decision denying class certification, recognizing that variability in consumer experience when entering into a retail transaction makes a case inappropriate for class treatment. In Berger, plaintiff challenged … Continue Reading

Can a Consumer Products Company Moot Class Actions by Offering a Refund?

Many lawsuits over consumer products involve allegations that a product didn’t work as advertised, or that the manufacturer failed to adequately disclose how to use the product.  These cases often are filed by plaintiffs who have spent just a few dollars on the product and suffered no real damages, other than possibly the price of … Continue Reading

Strategy of Offering Refunds to Moot Class Actions Gains Traction

As addressed in a separate post on this blog, the Supreme Court’s decision in Symczyk v. Genesis Healthcare Corp., 133 S.Ct. 1523 (2013) and cases since raised the issue of whether a defendant’s unaccepted offer of judgment for complete relief can moot class actions before a class is certified, which in turn raises the issue … Continue Reading
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