Historically, plaintiffs seeking monetary damages and wishing to pursue their case as a class action have sought certification under Federal Rule of Civil Procedure 23(b)(3), but this has become increasingly
Continue Reading Strategies for Defending Issue Class Actions
California’s Century City Bar Association (CCBA) recently selected GT Century City shareholder Robert J. Herrington, Co-Chair of the global law firm’s Products Liability and Mass Torts Practice, as
Continue Reading GT’s Rob Herrington Honored by Century City Bar Association as 2017 Class Action Litigation Lawyer of the Year
“Ascertainability” in the context of civil litigation involves the identification of individuals who qualify for membership in a putative class action. Although not an explicit requirement under Rule 23, since
Plaintiffs in consumer data breach class actions have struggled to establish Article III standing. Article III standing requires an alleged ‘‘concrete and particularized injury that is fairly traceable to the
Continue Reading Seventh Circuit Revives Another Data Breach Suit — Lewert v. P.F. Chang’s China Bistro, Inc.
On March 14, 2016, Ageas (formerly, Fortis Bank) and several foundations representing the Fortis shareholders announced a EUR 1.204 billion settlement of shareholder claims and they are now seeking to
Continue Reading The Dutch Act on Collective Settlement of Mass Claims (WCAM) Goes Global Again: A Forum Outside the United States to Resolve Mass Claims Disputes Internationally
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
Continue Reading Decision May Make Class Action Lawsuits More Difficult to Settle
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 the defendant’s “damage waiver surcharge,” which allows the customer to avoid liability if a tool is damaged during the period of rental. Plaintiff claimed the waiver was deceptive because it was automatically added to all transactions and the defendant (allegedly) failed to disclose that it was optional. The trial court denied class certification and the Ninth Circuit affirmed.
Continue Reading Variability in Consumer Experience Dooms Class Action
Greenberg Traurig Shareholder Ed Chansky highlights a recent decision dismissing consumer fraud claims alleging a personal care product was mislabeled as “all natural.” The key aspects of the decision were:
Continue Reading Hope for Consumer Products Companies Facing ‘Natural’ Class Actions
After being hit with a class action, one question consumer products companies often face is: should we modify our business practices in response to the suit? Sometimes it makes sense. Changing the challenged practice can, in some cases, help defeat class certification and may help limit liability. Others would argue that changing business practices in response to a lawsuit is an admission of culpability that could negatively impact how the judge and jury will view the case.
A recent decision provides an additional reason consumer products companies will want to carefully evaluate whether to change business practices after being sued in a class action. 
In Henderson v. J.M. Smucker Co., CV 10-4524-GHK VBKX, 2013 WL 3146774 (C.D. Cal. June 19, 2013), the plaintiff sued claiming that the defendant’s labels included misleading “health and wellness” claims on products that actually contained unhealthy amounts of high fructose corn syrup and trans fat. The court dismissed the case because the plaintiff had filed for bankruptcy and the trustee had settled her individual claim. But the plaintiff’s lawyers still moved for attorney’s fees under a “catalyst theory,” seeking more than $3 million on the ground that the defendant had changed its business practices in response to the suit (by removing the high fructose corn syrup and changing certain labels).
Continue Reading Cautionary Tale – Modify Business Practices and on the Hook for Catalyst Fees