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Posts in U.S. Supreme Court.
Standing in the Way of a Supreme Court Decision on Cy Pres-Only Class Action Settlements

What is the value of the class action mechanism if no redress is provided to plaintiffs at all? Is the class action about providing a remedy to plaintiffs, is it just about getting the defendant company to pay something to someone…or has it evolved simply into a mechanism for plaintiffs’ attorneys to collect fees? These are several of the questions raised by Frank v. Gaos, (No. 17-961), which presents the U.S. Supreme Court with an extreme case of the use of the cy pres doctrine in the context of class action cases. The High Court is faced with a cy pres-only settlement in which the ...

What About the Merits – What, If Anything, Will the Supreme Court Do With Cy Pres-Only Class Action Settlements?

We have been talking about Frank v. Gaos, (No. 17-961), since the U.S. Supreme Court decided to tackle the extreme case of the use of the cy pres doctrine in the context of class action cases. The settlement is a cy pres-only agreement which called for distribution of all funds paid by the defendant directly to charitable organizations and plaintiffs’ attorneys (in the form of attorneys’ fees) and there was no attempt at all to distribute any funds to the plaintiff class. The Supreme Court oral argument was held in Gaos on October 31st and the Justices probed several aspects of the heart ...

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 ...

A Split U.S. Supreme Court Upholds Class Waivers in Individual Employment Agreements, Highlighting the Role of Congress in the Class Waiver Fight

The viability of class waivers in employment agreements has been a closely watched battle in the courts since the National Labor Relations Board (NLRB) ruled in D. R. Horton, Inc. and Michael Cuda, Case 12–CA–25764, 357 NLRB No. 184 (2012) that class waivers in individual employment agreements violate the National Labor Relations Act (NLRA) by preventing employees from engaging in concerted action related to their employment. Faced with an Executive Branch that was “speaki[ng] from both sides of its mouth” on this issue and a Congress that recently overturned another ...

This year important questions regarding the viability of class action waivers in arbitration agreements have moved close to resolution. In July, the Consumer Financial Protection Bureau (CFPB) issued a long-awaited final rule that prohibited class waivers in arbitration agreements related to a broad range of financial products. And employees and the National Labor Relations Board (NLRB) have continued to push against the enforceability of class waivers in the context of individual employment agreements, driving the issue to the U.S. Supreme Court for review. On November 1 ...

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 ...

In the years following the U.S. Supreme Court’s AT&T Mobility v. Concepcion decision, more and more courts enforced class waivers in arbitration agreements based on the commands of the Federal Arbitration Act (FAA). The National Labor Relations Board (NLRB) parted with the post-Concepcion trend to enforce class waivers in D. R. Horton, Inc. and Michael Cuda, Case 12–CA–25764, 357 NLRB No. 184 (Jan. 3, 2012), however, and held that such waivers in individual employment agreements violate the National Labor Relations Act (NLRA) by prohibiting employees from acting in ...

Plaintiffs can count the first class action decision to be issued by the U.S. Supreme Court since the death of Justice Scalia as a win; although, they did not receive broad authorization to proceed carte blanche, as some had hoped. On March 22, 2016, a 6-2 split Court issued its opinion in the Tyson Foods, Inc. v. Bouaphakeo et al Fair Labor Standards Act (FLSA) class action which called into question the extent to which statistical averaging may be used to establish liability on a classwide basis and whether a class may be certified if it contains uninjured class members. The Court issued a ...

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 ...

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 ...

On May 26, 2015, the U.S. Supreme Court issued its decision in Commil USA LLC v. Cisco Systems, Inc., 575 U. S. ____ ( 2015), rejecting the Federal Circuit Court of Appeals’ recognition of a defense to induced patent infringement claims based on the good-faith belief that a patent is invalid.  The Federal Circuit Court of Appeals decision had vacated Commil’s multi-million dollar award ($63.7 million in damages and $10.3 million in interest) against Cisco Systems, Inc. and required a third trial to consider Cisco’s good-faith defense to Commil’s induced infringement claims.  ...

The answer should be a resounding “no,” according to the United States and Commil USA, LLC, the recipient of a multi-million dollar jury award against Cisco Systems, Inc.  Last week, the U.S. Supreme Court heard arguments in Commil USA, LLC v. Cisco Systems, Inc. (No. 13-896), which probes whether one who induces infringement of another’s patent can avoid liability under 35 U.S.C. § 271(b) of the Patent Act by claiming that they had a good-faith belief that the patent at issue was invalid.  Recall from our previous discussion, Commil won a jury verdict against Cisco for $74 million ...

The practice of restricting plaintiff access to class procedures through binding arbitration agreements has garnered significant attention over the last five years on the heels of several U.S. Supreme Court decisions validating companies’ use of class waivers.  One of the open questions remains, “who has the authority to determine whether class arbitration is available when the arbitration clause is silent – courts or arbitrators?”  The U.S. Supreme Court has not addressed whether the availability of class arbitration is a substantive “gateway” issue for the ...

Congress Takes Up Patent Litigation Reform – Innovation Act Reintroduced, Supreme Court Cases Examined

Patent litigation reform has been on the U.S. House Judiciary Committee agenda, with the recent reintroduction of legislation seeking to address patent litigation abuses and a hearing examining recent U.S. Supreme Court cases that have imposed some reforms that may, or may not, curtail the need for further legislative efforts.  In February, Chairman of the Judiciary Committee Rep. Rob Goodlatte reintroduced the bi-partisan Innovation Act, H.R. 9, which is the same in substance as the previous Innovation Act, H.R. 3309 that passed the House in December 2013, but ultimately ...

Who Determines if Class Arbitration is Available? Why it Matters and Will the Supreme Court Decide

In the wake of several favorable U.S. Supreme Court decisions, companies increasingly are using arbitration agreements to control their exposure to class action liability.  Although recent cases have reinforced the power of arbitration agreements, companies must tread carefully when crafting their arbitration contracts and related class waivers.  In conjunction with giving force to arbitration agreements, the Federal Arbitration Act (“FAA”) limits the federal courts’ ability to review and reverse arbitrator decisions construing those agreements.  The Supreme ...

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 ...

Big Day for Patent Holders: U.S. Supreme Court to Decide if Good-Faith Defense to Induced Patent Infringement Survives

Imagine that you are fighting to enforce your valid patents and after winning two jury verdicts you feel vindicated by the $74 million award you have been granted for the defendant’s role in inducing the infringement…then the appellate court says “try again,” because the defendant believed in good-faith that the patent was invalid.  Today you may get to wake up from this daydream, but this is the real-world scenario from which Commil USA LLC is seeking relief in the U.S. Supreme Court.  On December 5th, the High Court agreed to hear Commil’s appeal challenging the Federal ...

Unanimous U.S. Supreme Court Gives FLSA Class Action Win to Employers Screening for Theft

Employers continue to face an increasing number of lawsuits (including class and collective actions) claiming they violated the federal Fair Labor Standards Act (“FLSA”) based on a wide variety of policies and conduct.  Recent federal statistics for the 12-month period ending March 31, 2014 show 8,126 FLSA cases had been filed by employees in 2014, up nearly 5% from the cases filed in 2013 and more than double the cases filed ten years prior.  Against this backdrop of unyielding employee litigation, Tuesday’s pro-employer decision issued by a unanimous U.S. Supreme Court in ...

Last week, the U.S. Supreme Court denied Family Dollar Stores, Inc.’s petition for writ of certiorari seeking review of the Fourth Circuit’s decision in Scott, et. al. v. Family Dollar Stores, Inc., No. 12-1610 (4th Cir. Oct., 16, 2013).  The Fourth Circuit had overturned the District Court’s decision to deny plaintiff’s motion to amend its employment discrimination-based class action complaint on the grounds that “as a matter of law plaintiffs cannot satisfy the Rule 23(a) commonality requirement because the alleged gender discrimination was a result of 'subjective ...

The highly anticipated U.S. Supreme Court ruling in Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. ____ (2014) (June 23, 2014) left intact the fraud-on-the-market theory established by the Supreme Court in Basic Inc. v. Levinson, 485 U. S. 224 (1988), which is the bedrock upon which securities class actions have rested for nearly thirty years. However, the Halliburton decision provided defendant companies with an avenue for early escape from the impending pressures to settle meritless class litigation by securing their right to rebut the Basic presumption of classwide ...

In an April 25, 2014 article published in Bloomberg BNA’s Patent, Trademark & Copyright Journal, MVA Intellectual Property Member Mark Wilson examines the U.S. Supreme Court’s recent decision in Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S.Ct. 843 (2014) in which the High Court reversed the U.S. Court of Appeals for the Federal Circuit and held that the burden of proof remains with the patentee even in declaratory judgment actions filed by licensees. You can read Wilson’s article here

Securities Class Actions at the Supreme Court: Halliburton and the Fraud-on-the-Market Theory

Over the last few years, securities class actions have given rise to several critical questions ripe for U.S. Supreme Court review, including whether the foundation of the fraud-on-the-market theory established more than twenty-five years ago remains viable. The Supreme Court’s February 2013 decision in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184 (2013) set the stage for one of the most interesting securities cases currently pending before the Court: Halliburton Co., et al. v. Erica P. John Fund S. Ct. No. 13-317. Amgen raised the issue of whether ...

On February 24, 2014, the U.S. Supreme Court denied certiorari in three “moldy” washing machine class actions, which presented questions regarding Fed. R. Civ. P. 23’s commonality and predominance requirements as clarified by Wal-­Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In a previous post, we discussed in detail the Sixth Circuit’s rationale for upholding the trial court’s certification of a liability class in  Whirlpool Corp. v. Glazer, et al (No. 13-431), despite the fact that there were four different ...

The North Carolina Court of Appeals recently declared the enforceability of class arbitration waivers despite the North Carolina Supreme Court’s previous decision in Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 655 S.E.2d 362 (2008), which invalidated an arbitration agreement based, in part, on a class arbitration waiver.  In companion cases, Torrence v. Nationwide Budget Finance, et. al., No. 05- CVS 447 (N.C. Ct. App. Feb. 4, 2014) and Knox v. First Southern Cash Advance, et.al., No. 05-CVS-445 (N.C. Ct. App. Feb. 4, 2014)**, plaintiffs had secured class ...

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.

If It Walks Like a Class or Mass Action…Is it Removable Under CAFA? (Part 2)

           We continue our exploration of removability under the Class Action Fairness Act of 2005 (“CAFA”) and the threshold question that has driven a split between the Circuit Courts of Appeals described as “intolerable as a matter of federalism,” carrying CAFA back to the steps of the U.S. Supreme Court.  Before determining whether any requirement for removal under CAFA is met, the critical question is: is the case at hand even a class or mass action?  CAFA debuted on the U.S. Supreme Court’s calendar last term with Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 568 US __ (2013), and ...

If It Walks Like a Class or Mass Action…Is It Removable Under CAFA? (Part 1)

            Last term, the U.S. Supreme Court broke ground on interpreting the Class Action Fairness Act of 2005 (“CAFA”) by setting limits on plaintiffs seeking to maneuver around federal jurisdiction.  Having resolved in Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 568 US __ (2013) the quandary presented by plaintiffs attempting to stipulate their way around CAFA’s $5 million threshold for class action removal, the Supreme Court and lower courts recently have been faced with a threshold question of a different nature regarding removability under CAFA: is the case at hand even a ...

The U.S. Supreme Court Ended the Term with an Exclamation Mark at the End of Its Statement on Class Actions and Arbitration: The Amex and Oxford Health Decisions

            The Supreme Court’s October 2012 Term could rightly be named “The Year of the Class Action.”  The High Court received many petitions for review and ultimately issued more than five decisions that tackled issues impacting the landscape of class action practice from questions regarding federal jurisdiction under the Class Action Fairness Act of 2005 to class certification requirements in fraud-on-the-market securities class actions.  Two of the Court’s final class action decisions addressed the impact of arbitration agreements on class actions and class arbitration ...

What Was the Question? The U.S. Supreme Court’s Answer in Comcast v. Behrend Leaves Us Wondering about the Standard for Analyzing Expert Evidence for Class Certification

             The U.S. Supreme Court’s review of Comcast v. Behrend, 655 F.3d 182 (3rd Cir. 2011) showed promise to resolve uncertainties raised by the lower courts regarding the applicability of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) at the class certification stage and the depth of analysis courts should apply to expert evidence under Federal Rule of Civil Procedure 23’s rigorous analysis.  We first discussed Comcast in August 2012, after the Supreme Court granted certiorari to review the Third Circuit’s decision upholding certification of a ...

A Unanimous U.S. Supreme Court Prevents Class Action Plaintiffs from Sidestepping Federal Jurisdiction under the Class Action Fairness Act

            Class action defendants hit a home run in Standard Fire Insurance Co. v. Knowles, 568 U.S. ___  (Mar. 19, 2013), one of the U.S. Supreme Court’s latest class action decisions and its first decision to address the Class Action Fairness Act of 2005 (“CAFA”).  Knowles questioned the power of class action plaintiffs to legally bind class members prior to class certification and, in particular, whether class action plaintiffs could avoid federal jurisdiction under CAFA by stipulating with the complaint that the class would not seek damages in excess of the $5 million CAFA ...

The Class Arbitration Waiver is Back at the U.S. Supreme Court: Insights from Arguments in the Amex Federal Antitrust Case

            The line-up of class action cases to be reviewed and ruled upon by the U.S. Supreme Court this year is stacked with heavy hitters.  On the same day that the Court issued its opinion in the Amgen securities fraud class action case (covered in last week's post), the Court heard oral arguments in American Express Co., et al. v. Italian Colors Restaurant, et al., (S.Ct. No. 12-133).  Amex is the first Supreme Court class arbitration waiver case that explores the impact of AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) on federal claims.  The putative class plaintiffs are corporations and a ...

The U.S. Supreme Court Deals a Blow to Corporations Facing Fraud-on-the-Market Securities Class Actions

            While several of the U.S. Supreme Court’s recent decisions have raised the bar for plaintiffs seeking to bring class actions, the divided Court’s February 27th decision in Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U.S. ___ (2013) dealt a blow to corporate defendants in the securities fraud class action arena.  The Court heard arguments in Amgen in November, 2012 on the issue of whether plaintiffs in securities fraud class actions must prove the materiality of the alleged misrepresentation in order to obtain class certification based on the ...

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Companies are operating in an increasingly globalized and regulated business environment, facing ever-changing and complicated litigation and regulatory challenges. The Moore & Van Allen Litigation Blog provides cutting-edge information regarding developments in federal, North Carolina State, and international litigation, as well as in arbitration, regulatory enforcement, and related business practices. 

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