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U.S. Supreme Court Limited Authority to Remove Class Actions to Original Defendants, Third-Party Counterclaim Defendants May Not Remove Even Under CAFA

A defendant by any other name does not smell as sweet when it comes to removing class actions from state court to federal court, even under the Class Action Fairness Act of 2005 (“CAFA”). Congress passed CAFA to address perceived abuses in class action litigation and to provide an avenue for defendants to remove class actions filed in state courts to the more neutral ground of the federal court system. But, who can avail themselves of the removal authority provided by CAFA? The U.S. Supreme Court recently held in Home Depot U.S.A. , Inc. v. Jackson, 587 U. S. ____ (2019) that only the ...

No Standing to Sue, No Class Action Settlement - U.S. Supreme Court Remands Cy Pres Settlement Case Without Reaching the Merits

We have been following the Frank v. Gaos, 586 U. S. __ (2019) class action case, which presented an opportunity for the U.S. Supreme Court to determine the limits on the use of the cy pres doctrine in the context of class action settlements to distribute damages paid by a defendant company to entities other than the plaintiff class. On March 20, 2019, the U.S. Supreme Court halted Gaos in its tracks, vacating the Ninth Circuit’s decision approving the contested cy pres settlement and remanding the case for further proceedings to determine whether any named plaintiffs had ...

Has Cy Pres Gone Too Far: U.S. Supreme Court to Consider When Class Action Plaintiffs Get Nothing, but Their Lawyers and Charities Cash-In Via Plaintiffs’ Settlement

There has been a lot of discussion surrounding class action litigation over the course of the last several years. The U.S. Supreme Court has tackled a variety of issues ranging from the use of class action waivers in arbitration agreements to whether class action plaintiffs can base claims solely on statutory damages when they have suffered no concrete injury themselves. The use of class waivers in arbitration agreements, in particular, has been front and center with the Consumer Financial Protection Bureau’s (CFPB) arbitration study declaring that class waivers were ...

U.S. Supreme Court Says “No” to Plaintiff Attempts to File Repetitive Class Actions After Statute of Limitations Has Run Out

It is easy to overgeneralize the outcome of a legal dispute as pro-plaintiff or pro-defendant to paint a picture of which way a court is leaning and who is finding favor. This week, the U.S. Supreme Court issued its second class action decision in as many months that is favorable for defendant companies. No doubt this will stir grumblings about pro-business interests being elevated above the individual. But, at its heart, the Supreme Court’s decision in China Agritech, Inc. v. Resh, 584 U.S. ___ (2018) simply holds class actions plaintiffs to the bounds of the law as proscribed in the ...

The Doors of State Courthouses Remain Open to Class Action Plaintiffs with Federal Securities Act of 1933 Claims Related to Offerings of Securities

In 2017, federal securities class actions were filed at a rapid clip, averaging more than one per day - a level not seen in nearly 20 years according to survey data. It was the third year of growth and a 44% increase over 2016. Only a small subset (25 or 5.7%) of the record-setting 432 federal securities class actions filed last year were claims filed under Section 11 of the federal Securities Act of 1933 (1933 Act), which is at the heart of the U.S. Supreme Court’s decision in Cyan Inc. v. Beaver County Employees Retirement Fund. The 1933 Act requires companies offering securities to the ...

The reality of class action litigation is that what is supposed to be the court’s preliminary decision of whether to certify a case as a class action is often the end of the litigation. In many cases, plaintiffs will not proceed if the court denies class certification for reasons including that their individual claims are not large enough to justify the costs. And defendant companies often will settle a case once a class is certified, even if the claims are meritless, because the risk and costs of litigation are too high. Therefore, the opportunity to appeal a class certification ...

As class action litigation has continued to proliferate, we have seen efforts to rein in the perceived abuses of the system on multiple fronts. Over a decade ago, Congress passed the Class Action Fairness Act of 2005 (CAFA) to provide an avenue for defendants to remove class actions filed in state courts to the more neutral ground of the federal court system. In the last several years, the courts have been called on repeatedly to define the contours of CAFA and the Judicial Conference Advisory Committee on Civil Rules (Advisory Committee) initiated proposed amendments to Federal Rule of ...

Federal class action jurisprudence has been evolving rapidly over the course of the last 5-6 years, with several major U.S. Supreme Court decisions defining and redefining many aspects of class litigation. With the first round of proposed amendments in over a decade, the civil rule governing federal class litigation is set to follow suit. On August 12, 2016, the Judicial Conference Advisory Committee on Civil Rules (Advisory Committee) published proposed amendments to Federal Rule of Civil Procedure 23, which have been in the works since the 2011 formation of the Rule 23 ...

MLB Litigation Brief: Class Action Questions Open After Scalia’s Death, Arbitration Fees and American Rule & More


Our goal is to serve as a cutting-edge resource for companies operating in an increasingly globalized and regulated business environment. Moore & Van Allen’s MLB Litigation Brief is a complement to our Litigation Blog’s in-depth individual treatment of critical issues emerging in federal, North Carolina state, and international litigation, as well as in arbitration, regulatory enforcement, and related business practices. MLB Litigation Brief hits the highlights of recent developments, streamlining access to critical information for our readers. Subscribe to the MVA ...

Class actions consume considerable company resources and can pose significant risk of exposure in the $ millions or $ billions. Therefore, it is critical for companies to prepare themselves – to know the trends in class action litigation and the tools available to minimize their exposure to class action liability. Over the last several weeks, the Supreme Court has heard arguments in three cases that have potential to further define the landscape of class action litigation: Campbell-Ewald Co. v. Gomez (No. 14-857), Spokeo, Inc. v. Robins (No. 13-1339), and Tyson Foods, Inc. v ...

Class actions consume considerable company resources and can pose significant risk of exposure in the $ millions or $ billions. Therefore, it is critical for companies to prepare themselves – to know the trends in class action litigation and the tools available to minimize their exposure to class action liability. Over the last several weeks, the Supreme Court has heard arguments in three cases that have potential to further define the landscape of class action litigation: Campbell-Ewald Co. v. Gomez (No. 14-857), Spokeo, Inc. v. Robins (No. 13-1339), and Tyson Foods, Inc. v ...

Class actions consume considerable company resources and can pose significant risk of exposure in the $ millions or $ billions. Therefore, it is critical for companies to prepare themselves – to know the trends in class action litigation and the tools available to minimize their exposure to class action liability. Over the last several weeks, the Supreme Court has heard arguments in three cases that have potential to further define the landscape of class action litigation: Campbell-Ewald Co. v. Gomez (No. 14-857), Spokeo, Inc. v. Robins (No. 13-1339), and Tyson Foods, Inc. v ...

Amendments to Federal Civil Rules Governing Discovery and Preservation of ESI Set to Take Effect December 1, 2015

The course of federal civil litigation will take a turn on December 1, 2015, with pending amendments to several rules governing discovery, case management, and the preservation of electronically stored information (“ESI”) set to take effect absent intervening Congressional action. The pending amendments are nearly five years in the making, flowing from the Conference on Civil Litigation sponsored by the Judicial Conference Advisory Committee on Civil Rules at the Duke University School of Law in 2010 (“Duke Conference”). Through the Duke Conference and the amendment ...

Circumscribing an individual’s power to subject companies to class and collective actions has been on the forefront of corporate litigation for several years, particularly in light of the growing trend of class action filings.  An increasingly common scenario facing corporate defendants is the “no-injury class” in which many members of a certified class actually sustained no injury or damages, resulting in a much larger class to which damages might be awarded.  This issue has arisen in a variety of contexts, including product liability class actions like the Whirlpool moldy ...

Supreme Court to Decide if Class Action Machine Grinds to a Halt After Offer of Complete Relief to Named Plaintiff

A recent global survey of corporate counsel revealed that the increasing number of class actions filed is considered to be the most important litigation trend currently facing companies.  Over the last several years, companies and plaintiffs alike have been urging the U.S. Supreme Court to clarify the boundaries of class action litigation.  The High Court recently agreed to tackle an issue presented by Campbell-Ewald Co. v. Gomez (No. 14-857), which has the potential to arm companies with a method for shutting putative class actions down early.  The reality facing corporations is ...

Supreme Court: Companies Fighting State Class Actions Can Remove to Federal Court Without Evidence of Damages

The Class Action Fairness Act of 2005 (“CAFA”) has found its way to the steps of the U.S. Supreme Court several times in the last two years, as plaintiffs and defendants seek to define the parameters of the federal law enacted, in part, to rectify state and local court abuses of the class action process and demonstrated biases against out-of-state defendants.  CAFA provides that a defendant may remove a state class action to federal court if the matter in controversy exceeds $5,000,000, exclusive of interest and costs, and certain other criteria are met.  On December 15, the U.S ...

4th Circuit Offers Defendants Seeking Federal Jurisdiction Relief Denied by Other Circuit Courts: Remands to State Court Obtained by Fraud Can be Revoked and Attorneys Sanctioned

Last week, the Fourth Circuit Court of Appeals kicked off the holiday by giving thanks for the power to prevent parties from reaping the benefits of fraud perpetrated against the federal courts. The Fourth Circuit decided in Barlow v. Colgate Palmolive Co., et al., No. 13-1839, No. 13-1840, 2014 U.S. App. LEXIS 22324 (4th Cir. Nov. 25, 2014) that the reach of federal jurisdiction extends far enough to snatch a case back from state court if a plaintiff secured remand based on fraudulent misrepresentations to the federal court.  The court also clarified that attorneys engaging in such ...

The Bittersweet in Whirlpool’s Moldy Washing Machine Class Action Victory: The War Wages On as We Still Question Whether the Class Should Have Been Certified At All

After many years of battle, Whirlpool Corporation finds itself celebrating a favorable jury verdict in a class action lawsuit. A few weeks ago, a jury had the rare occasion to find for Whirlpool in Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front-Loading Washer Prods. Liability Litg.), No. 08-65000 (N.D. Ohio), one of several cases in which the company faces product liability allegations associated with mold growth in front-loading washing machines. The harsh reality for corporate defendants is that once a class is certified, the majority of cases settle because the ...

Amendments to Federal Class Action Rules May be on the Horizon: Settlement, Issues Classes, and Notice Requirements on the Front Burner

Class action settlements, certification of issues classes, and class notice requirements are among the topics that may be the subject of upcoming proposed amendments to Federal Rule of Civil Procedure 23. On the agenda for the October 30-31, 2014 Advisory Committee on Civil Rules meeting is a report from the Rule 23 Subcommittee, which was formed in 2011 to consider modifying the rule governing class actions for the first time since the 2001-2003 cycle of amendments. Since its formation, the Subcommittee has identified several issues that may necessitate changes to Rule 23 and is now ...

Proposed Amendments to Federal Rules of Civil Procedure Governing Discovery and Preservation of Electronically Stored Information One Step Closer to Approval

Over the course of the past two years, litigants have faced significant changes to Federal Rules of Civil Procedure that are critical to navigating the federal litigation landscape, include rules governing subpoenas, discovery, case management, and preservation of electronically stored information (“ESI”). We previously discussed the long-awaited changes to Federal Rule of Civil Procedure 45 that were implemented on December 1, 2013 to streamline the use of subpoenas in federal civil actions (read our Rule 45 post). The wider reaching August 2013 Proposed Amendments

D.C. Circuit Clarified 4 Critical Factors Regarding Attorney-Client Privilege in Corporate Internal Investigations, Finding District Court’s Decision “Irreconcilable with Upjohn”

In a recent post, we discussed the D.C. Circuit’s consideration of the District Court’s decision in U.S. ex.rel Barko v. Halliburton Co. et al., Case No. 05-01276 (D.D.C. 2014), which provided an alarming perspective on the applicability of the attorney-client privilege and work product doctrine to internal investigations conducted pursuant to government regulatory compliance requirements.  The District Court had ruled that the privilege and work product doctrine did not apply to communications generated during the course of an internal investigation, because the ...

A Liberal Shift in the Fourth Circuit? – Part 2
A LIBERAL SHIFT IN THE FOURTH CIRCUIT? - PART 2: In part two of this Bloomberg BNA series, MVA Litigation Associate Jason Idilbi continues analyzing whether the judges appointed during the 2010-2011 term to the historically conservative Fourth Circuit Court of Appeals have caused the court to lean towards the left.  Idilbi examines the outcomes of the Fourth Circuit’s recent en banc rehearings and whether they demonstrate that there has been an ideological shift on the court.  Idilbi Article Part 2.  If you missed Part 1, see our previous post. Posted Feb. 13, 2014 ...
February 15th Deadline to Comment on Proposed Amendments to Federal Rules of Civil Procedure

FEBRUARY 15TH DEADLINE TO COMMENT ON PROPOSED AMENDMENTS TO FEDERAL RULES OF CIVIL PROCEDURE:  In August 2013, the Advisory Committee on Civil Rules published proposed amendments to the Fed. R. Civ. P. which address the challenges of managing the scope of discovery in the digital age and the attendant consequences for a party’s failure to meet its discovery obligations. The proposed amendments impose limitations on discovery and spoliation sanctions. Read my previous post for details.  Comments are due February 15, 2014. You may submit comments online.  Posted by Tony Lathrop ...

A LIBERAL SHIFT IN THE FOURTH CIRCUIT: In a two-part Bloomberg BNA series, MVA Litigation Associate Jason Idilbi analyzes whether a shift in the political makeup of the Fourth Circuit in the 2010-2011 term has resulted in the court, which has been one of the most conservative, becoming more liberal. Read Idilbi Article Part 1. Posted Feb. 7, 2014
The Burden is on You: A Defendant Patent Holder Still Bears the Burden of Proving Infringement in a Declaratory Judgment Action Brought by a Licensee

For nearly 150 years, it has been established that a patent holder (“patentee”) ordinarily bears the burden of proving infringement.  The U.S. Supreme Court’s recent decision in Medtronic v. Mirowski Family Ventures, LLC, 571 U.S. ____ (Jan. 22, 2014) reversed the Federal Circuit Court of Appeals’ attempt to shift the burden of proof to a licensee seeking a declaratory judgment that its products do not infringe the patentee’s patents.  The unanimous Supreme Court found little support for upsetting the balance of our “well-functioning patent system” or ...

Foreign Companies Dragged into U.S. Courts Get Reprieve as U.S. Supreme Court Clarifies Limits on General Jurisdiction

In Daimler AG v. Bauman, 571 U. S. ____ (Jan. 14, 2014), the U.S. Supreme Court reiterated that general or “all-purpose” jurisdiction can be exercised over foreign corporations only “when their affilia­tions with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” No general jurisdiction lies over a foreign defendant in a suit by foreign plaintiffs for actions outside of the U.S., based solely on its indirect subsidiary’s contacts with a state in which it is neither incorporated nor holds its principal place of ...

Unanimous U.S. Supreme Court Ruled State Parens Patriae Action is Not Removable Under CAFA

In a unanimous decision, the Supreme Court ruled on Jan. 14, 2014 that the state parens patriae action in Mississippi ex rel. Hood v. Au Optronics Corp. was not removable under the Class Action Fairness Act of 2005 as a “mass action,” because the state is the only named plaintiff:  571 U. S. ___ (2014).  You can read our previous posts on AU Optronics here and here.  Posted by Tony Lathrop, January 17, 2014.

The Streamlined Subpoena Power under Amended Federal Rule of Civil Procedure 45 - Effective December 1, 2013, Barring Congressional Action

            This year several proposed amendments to the Federal Rules of Civil Procedure (“Civil Rules”) are under consideration.  In a previous post, we highlighted the most recent proposed amendments to the Civil Rules which focus on discovery limits and spoliation sanctions and were published for public comment by the Judicial Conference Advisory Committee on Civil Rules on August 15, 2013 (the “Discovery Amendments”).  On December 1, 2013, some of the most long-awaited changes to the Civil Rules will take effect – the proposed amendments to Rule 45, which governs the use of ...

Proposed Amendments to Local Rules for Middle District of North Carolina Open for Comment Until November 1, 2013

            On October 2, 2013, the Local Rules Committee of the Federal District Court for the Middle District of North Carolina announced that it has published for comment proposed amendments to the Local Civil Rules and Local Criminal Rules.  The proposed amendments to the Local Civil Rules include the addition of new rules and changes to some existing rules, including LR 5.4, 7.1(a), 7.3(i), 7.6, 15.1, 16.2, 16.3, 26.2, 37.1, 54.1, 72.4, 83.7, 83.9e(i), 83.10h(d), 83.11, and 103.2(b).  The only proposed amendment to the Local Criminal Rules includes the incorporation under LCrR 57.1 of ...

Federal District Courts Continue to Use Local Patent Rules

            In our last post, we discussed proposed amendments to the Federal Rules of Civil Procedure recently published for comment by the Judicial Conference Advisory Committee.  Two years ago, I sat on a similar advisory committee for the U.S. District Court for the Western District of North Carolina with the mission to devise a set of local patent rules to enhance the Rules of Civil Procedure and guide parties through the unique aspects of patent litigation in our District.  Since 2001, Federal District Courts around the country have continued to establish local patent rules.  Local patent ...

Proposed Amendments to Federal Rules of Civil Procedure Include Limitations on Discovery and Spoliation Sanctions, Published for Comment until February 2014

            The costs that parties incur in the broils of litigation have been on the front burner in recent years, with the temperature rising. In 2010, the Judicial Conference Advisory Committee on Civil Rules sponsored a Conference on Civil Litigation at the Duke University School of Law (the “Duke Conference”) to address possible solutions for reducing the costs of civil litigation, particularly with respect to discovery.  We also have seen many reported cases over the past few years that have attempted to strike a balance between the obligations to preserve and produce information ...

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