“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
Seventh Circuit Revives Another Data Breach Suit — Lewert v. P.F. Chang’s China Bistro, Inc.
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
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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 motion to compel arbitration despite Concepcion, relying on language in the arbitration clause that rendered the clause invalid if state law would find the class action waiver unenforceable. The decision appears to contradict a recent Ninth Circuit decision, calling into question Concepcion’s scope and ensuring further litigation of the issue.
In Imburgia v. DirecTV, Inc., 170 Cal. Rptr. 3d 190 (2014), Plaintiffs accused DirecTV of improperly charging early termination fees and brought a class action against the company for false advertising, violation of California’s Consumer Legal Remedies Act (CLRA) and related claims. After the trial court granted in part Plaintiffs’ motion for class certification, Concepcion came down and DirecTV moved to decertify the class and compel arbitration. DirecTV’s arbitration clause included a class action waiver and provided generally that the Federal Arbitration Act (FAA) applied, but also provided: “If, however, the law of your state would find this agreement to dispense with class arbitration procedures unenforceable, then this entire Section … is unenforceable.” Id. at 193.
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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 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.
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