In 2010, when it passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress created the Consumer Financial Protection Bureau as a watchdog for consumers who buy financial products and services. The CFPB’s mission included looking at the effect of arbitration clauses in consumer contracts and proposing rules to regulate them if appropriate.
Qui Tam-Like Claim Eludes Arbitration Act Oblivion — For Now
Concepcion in question
Last week, the Ninth Circuit found a way around the U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). The panel held, 2-1, that a qui tam-like claim differs enough from a state-law class action claim to take it beyond Concepcion‘s preemptive reach.
The ruling means, in the Ninth Circuit, that Concepcion will not allow defendants to use arbitration clauses to defeat claims that private plaintiffs bring on behalf of the state and that defendants may therefore face individual cases, in court or arbitration, that put far more than the individuals’ claims at stake.
Continue Reading Qui Tam-Like Claim Eludes Arbitration Act Oblivion — For Now
Can California Save Class Actions?
The U.S. Supreme Court has chipped away at class actions, making them both harder to qualify for class treatment and easier prey to clauses that bar class actions in court or in arbitration. For many years, thanks largely to rulings by the California Supreme Court, the Ninth Circuit swam against the tide. But more recently
Fifth Circuit Misapplies Comcast, Affirms Class Anyway
Modest decision
In Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), a 5-4 majority — over an extraordinary joint dissent by Justices Ginsburg and Breyer — had to work hard to make a modest ruling. The Court held that plaintiffs seeking class treatment under Rule 23(b)(3) sometimes may have to plausibly link their theory of liability (the misconduct that caused damages) to the theory of class-wide damages (the estimate of the damages flowing from the misconduct) in order to obtain class certification.
I say emphatically that the Court did not hold that any plaintiff class seeking certification under Rule 23(b)(3) must prove damages on a class-wide basis. It said only that if a class cannot obtain class certification without establishing class-wide damages, then by golly it must show that it can establish class-wide damages.
I should know; I briefed and argued the case for the plaintiff class.
Continue Reading Fifth Circuit Misapplies Comcast, Affirms Class Anyway
Amex Merchants Catch a Big Break
Merchants get a new chance to assert claims
Finding “egregious” misconduct by the lead lawyer for a class of American Express merchants, a New York district court rejected a request for final approval of a nationwide antitrust settlement.
The good news? American Express merchants that have
ATM Class Wins Antitrust Reprieve
Economic theory
The D.C. Circuit confirmed in Osborn v. Visa Inc., No. 14-7004 (D.C. Cir. Aug. 4, 2015), that plaintiffs alleging a price-fixing conspiracy may rely on debatable economic theory to plead an adequate basis for antitrust injury.
The case involved claims that Visa, MasterCard, and several banks conspired to force ATM operators not
Stay or Go?
The class-action variety of plaintiffs’ lawyer abhors the federal Arbitration Act.
You can see why. The Supreme Court has turned the FAA into a class action killer. See AT&T Mobility LLC v. Concepcion, 563 U.S. 321 (2011) (holding that FAA pre-empts state law against bans on class treatment of claims), and Am. Express Co. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) (holding that FAA requires enforcement of class action ban even if it thwarts claimants’ ability to vindicate their rights).
But a new FAA ruling by the Second Circuit may afford some comfort to other plaintiffs’ lawyers. Not a lot. Some.
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Can We Kiss Ascertainability Goodbye?
Who says law review notes don’t matter?
A new decision proves that what students write in law journals can matter a great deal.
In Mullins v. Digital Direct, LLC, No. 15-1776 (7th Cir. July 28, 2015), the Seventh Circuit all but adopted a Yale law student’s analysis of, and rationale for freeing class action law from, a godawful “ascertainability” test that threatens to kill class cases involving low-dollar claims. A pair of other circuits had either championed the standard since creating it in 2012 (the Third Circuit) or quietly embraced it (the Eleventh).
Both the Yalie and the panel deserve our thanks.
Continue Reading Can We Kiss Ascertainability Goodbye?
Per Se Melee in E-books Case — Part 2
Review
In the last post, I went over the basics of the Second Circuit’s 2-1 antitrust ruling against Apple in United States v. Apple, Inc., No. 13-3741-cv (2d Cir. June 30, 2015).
Apple, you will recall, served as the hub of a hub-and-spoke conspiracy that had five spokes — each of them a book
Per Se Melee in E-books Case — Part 1
Apple’s loss
Two years ago, on July 10, 2013, the United States and 33 states and territories won a bench trial against Apple for its role in a conspiracy to fix prices on electronic book (e-books). On June 30, 2015, two members of a three-judge Second Circuit panel upheld the judgment against Apple under