Ninth Circuit Splits From Other Circuits, Rules That 14-Day Deadline To Appeal Class Certification Order May Be Tolled by Motion for Reconsideration Filed After Deadline

Extended DeadlineAs regular class action litigators are aware, Rule 23(f) provides a potential safety valve in case of an adverse class certification order:  within 14 days, a party may file a petition to the applicable court of appeals seeking interlocutory appeal of the order.  However, if a litigant first files a motion for reconsideration after the 14-day time limit, and then – after the motion is denied months later – files a Rule 23(f) petition, is the appellate court without jurisdiction to consider the petition?  In Lambert v. Nutraceutical Corp., the Ninth Circuit answered that question in the negative, finding that the 14-day deadline is not jurisdictional, and therefore may be equitably tolled by such a motion.  Practitioners are advised, however, not to assume that other courts (particularly the Third Circuit, and likely the Tenth and Eleventh Circuits as well) would allow the Rule 23(f) deadline to be so tolled.

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Spokeo on Remand: The Ninth Circuit Finds Plaintiff’s FCRA Injury Is Concrete

Fifteen months after the U.S. Supreme Court’s landmark decision in Spokeo, Inc. v. Robins (Spokeo II), 136 S. Ct. 1540 (2016), the Ninth Circuit issued its opinion on remand.  The only question before the Ninth Circuit was whether the plaintiff’s allegations regarding his injuries – resulting from Spokeo’s alleged violation of the Fair Credit Reporting Act (the “FCRA”) – were sufficiently concrete to confer Article III standing.  In Spokeo III, the Ninth Circuit answered that question in the affirmative, finding that (1) the relevant provisions of the FCRA were established to protect the concrete interests of consumers like plaintiff, and (2) plaintiff alleged actual harm to his concrete interests resulting from Spokeo’s publication of an inaccurate report about him.

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Federal Communications Commission Tackles the “Reassigned Number Problem”

Reassigned numbers have been at the center of the surge in litigation under the Telephone Consumer Protection Act (“TCPA”) during the last few years.  By now the story is well known to businesses that actively communicate with their customers: the customer consents to receive telemarketing and/or informational robocalls[1] at a wireless telephone number, but months or years later the customer changes his or her wireless telephone number and—unbeknownst to the business—the telephone number is reassigned to a different person.  When the recipient of the reassigned number starts receiving calls or messages from the business, a lawsuit often ensues under the TCPA because that party has not consented to receive such calls.  The FCC adopted on July 13 a Second Notice of Inquiry (“Second NOI”) that promises to address this problem in a meaningful way.  Specifically, the Second NOI focuses on the feasibility of “using numbering information to create a comprehensive resource that businesses can use to identify telephone numbers that have been reassigned from a consumer who has consented to receiving calls to a consumer who has not.” Continue Reading

BREAKING: U.K. Tribunal Denies Certification in Merricks v. MasterCard, Dismisses Application for Collective Proceedings Order

Credit CardsThe U.K.’s Competition Appeal Tribunal has just issued its judgment dismissing the application for a Collective Proceedings Order in Walter Hugh Merricks CBE v. MasterCard Inc., holding that the claims asserted “should not be certified under rule 79 as eligible for inclusion in collective proceedings.”  Stay tuned for our analysis of this landmark decision.

The CFPB Issues Final Arbitration Rule Amid Uncertainty and Controversy: Will Its Gamble Pay Off?

Credit CardsOn July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued its final rule precluding class action waivers in arbitration agreements in many consumer financial services contracts.  The much-anticipated final rule comes more than a year after the CFPB issued its proposed rule, which was based on the CFPB’s March 2015 study of consumer arbitration required by Section 1028 of the Dodd-Frank Act.  The CFPB received over 110,000 comments to its proposed rule, and notwithstanding strong opposition from the financial services industry, on July 10, the CFPB issued a final rule that is largely unchanged from the proposed rule.  For our discussion of the CFPB’s proposed arbitration rule, please see our client alert from May 2016.
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UPDATE: U.K.’s First Ever Class Action Withdrawn, Applicant Agrees to Pay Over £300,000 in Costs to Defendant

Signing a contractThe U.K.’s first ever application for an opt-out Collective Proceedings Order (the equivalent of a motion for class certification) has been withdrawn.

We earlier reported that the U.K.’s Competition Appeal Tribunal adjourned the proceedings in Dorothy Gibson v. Pride Mobility Products Ltd. to allow the proposed class representative (Gibson) to amend and refile her application.  However, rather than narrow the putative class definition in accordance with the Tribunal’s guidance, Gibson informed the Tribunal on May 5th that she would not further pursue her application.  Law360 reported that “[a]fter reassessing the value of the claim as required with her expert, [Gibson] decided the case is not worth enough to proceed given the costs versus potential benefits for class members.”

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Weekly Global Class Action Roundup – April 21, 2017

Weekly Round UpIn this week’s roundup, a class action against Deloitte involving attorney document reviewers is certified in Canada, a Chinese antitrust class action against Apple, and Canadian courts approve a settlement in a VW “defeat device” class action.