Ninth Circuit


October 22, 2014 9:14 AM | Posted by Clifton R. Gruhn & Ben V. Seessel | Permalink
A California federal district court denied certification of two nationwide classes, each asserting a price-fixing conspiracy for optical disk drives (“ODD”), because the plaintiffs’ experts failed to provide a viable methodology for establishing class-wide antitrust injury. The plaintiffs alleged that the defendants colluded to fix prices for ODDs, thereby preventing ODD prices from declining as quickly or as far as they would have absent the defendants’ anticompetitive agreements. read more
September 19, 2014 3:40 PM | Posted by Jaret J. Fuente and Gary M. Pappas | Permalink
The Ninth Circuit recently affirmed certification of a class of an estimated 800 current and former California-based Allstate Insurance Company adjusters who allege that Allstate has a practice or unofficial policy of requiring its hourly claims adjusters to work unpaid off-the-clock overtime in violation of California law. read more
August 27, 2014 8:36 AM | Posted by Clifton R. Gruhn & Ben V. Seessel | Permalink
In Dunford v. American Databank, LLC, the plaintiff alleged that the defendant violated the Fair Credit Reporting Act by including within her criminal background report charges that were more than seven years old.  The plaintiff sought to certify two nationwide classes.  The court found that, among other impediments to certification, the proposed class representative was inadequate because of her prior criminal convictions and her arrest and felony charge during the pendency of the case. read more
August 7, 2014 2:24 PM | Posted by Christine A. Stoddard and Kristin A. Shepard | Permalink

The Ninth Circuit Court of Appeals recently affirmed a district court’s denial of class certification where a plaintiff failed to propose a plan to ascertain class members and therefore did not satisfy the manageability requirement of Rule 23(b)(3).  Plaintiffs alleged that the defendants, a parking company and the City of Laguna Beach, California, had violated the Fair and Accurate Credit Transactions Act (“FACTA”) by improperly printing the expiration dates of credit cards on parking receipts.  Plaintiffs sought to represent a class of purchasers who had not been victims of identity theft or suffered actual harm.  The United States District Court for the Central District of California denied class certification, finding that plaintiffs did not satisfy the superiority requirement of Rule 23(b)(3) because the class was not ascertainable, individual claims and administrative proceedings were both effective alternatives to a class action lawsuit, and a class action would be unfair.

On appeal, the Ninth Circuit addressed only the ascertainability of the class.  The court found several problems with identifying class members.  Because the class only included those who had used personal credit cards to purchase parking, determining which individuals had used business cards and were therefore excluded from the class would be infeasible.  Moreover, whether individuals had received receipts with expiration dates on them could not be efficiently determined, as there was no evidence that every parking machine had uniformly printed the dates over the four years at issue in the case and customers themselves would be unlikely to still possess the receipts.  Individuals seeking to join the class would also need to show that they had not suffered identify theft in order to be included.  Finally, and most critically, plaintiff had failed to propose a plan for determining who would be a member of the class, instead suggesting that potential class members could self-identify.  The court noted that, while self-identification may be possible in certain settlement-only cases, it does not satisfy the manageability requirement of 23(b)(3)(d).  Therefore, the court affirmed the denial of class certification.

Martin v. Pacific Parking Sys., No. 12–56654 (9th Cir. July 25, 2014). read more
July 31, 2014 8:51 AM | Posted by Clifton R. Gruhn & Ben V. Seessel | Permalink
A federal district court in Hawaii held that a parens patriae action brought on behalf of the State of Hawaii by its Attorney General was not removable under the Class Action Fairness Act (“CAFA”) because it was not a class action, and, even if it were, the presence of the State as a party precluded a finding that CAFA’s minimal diversity requirement had been met.  In Hawaii v. Bristol-Myers Squibb Co., Hawaii’s Attorney General claimed that pharmaceutical companies violated state consumer protection laws and were unjustly enriched and liable for punitive damages due to their allegedly false, deceptive, and unfair marketing of the prescription drug Plavix. read more
June 30, 2014 1:38 PM | Posted by Michael Greenfield and Ben Seessel | Permalink
The U.S. District court for the Northern District of California denied plaintiffs’ motion for class certification because the proposed class did not satisfy Rule 23’s ascertainability and predominance requirements. Plaintiffs’ class action complaint alleged that Hulu violated the Video Privacy Protection Act by disclosing video selections and “personally identifiable information” to third parties such as Facebook. At the class certification hearing, the plaintiffs narrowed their theory to the alleged wrongful disclosure of personal identifying information to Facebook by transmission of c_user cookies, which contain a Hulu user’s Facebook ID. According to the court, by narrowing their theory, the plaintiffs limited the class to “registered Hulu users who at least once during the class period watched a video on hulu.com having used the same computer and web browser to log into Facebook in the previous four weeks using default settings.” read more
June 4, 2014 8:45 AM | Posted by Jacob Hathorn and Ben Seessel | Permalink
A California federal district court denied a renewed motion for certification of a nationwide class, holding that the application of California negligence and conversion law would violate the due process rights of non-Californian class members. read more
May 31, 2013 2:48 PM | Posted by Joshua E. Roberts | Permalink
In In re: HP Inkjet Printer Litigation, Case No. C05-3580-JF, 2013 WL 1986396 (9th Cir. May 15, 2013), the Ninth Circuit recently held that attorney fee awards in class settlements involving coupons must be “attributable to” the value of the coupons awarded to class members. How does this holding affect the settlement between Hewlett-Packard and a nationwide class of consumers who purchased certain HP inkjet printers? read more
May 7, 2012 1:24 PM | Posted by Glover, Anthony | Permalink
In Ferrington v. McAfee, Inc., No. 10-CV-01455-LHK, 2012 WL 1156399 (N.D. Cal. Apr. 6, 2012), the court emphatically denied the plaintiffs' motion for final approval of a class action settlement . . . read more
April 10, 2012 5:58 PM | Posted by Katherine Heckert | Permalink
In Coneff v. AT&T Corp., the Ninth Circuit again considered the implications of the recent Supreme Court case, AT&T Mobility, Inc. v. Concepcion, to determine whether the Federal Arbitration Act preempted state law in Washington. Find out what the court found, after the jump. read more
April 10, 2012 5:43 PM | Posted by Katherine Heckert | Permalink
In Janis v. Health Net, Inc., the Ninth Circuit Court of Appeals considered whether evidence that evidence of jurisdictional requirements could be considered where the evidence was not submitted at the time the notice of removal was filed.  Find out whether such evidence may be considered, after the jump.  read more
March 12, 2012 12:54 PM | Posted by Katherine Heckert | Permalink
In Kilgore v. Keybank, National Association, ---F.3d ----, 2012 WL 718344 (9th Cir. (CA) Mar. 7, 2012), the Ninth Circuit Court of Appeals considered whether the Supreme Court's decision in AT&T Mobility, Inc. v. Concepcion required the Federal Arbitration Act ("FAA") to preempt California's state law rule prohibiting the arbitration of claims for broad, public injunctive relief in a class action related to private student loans.  Find out what controls, after the jump. read more
March 9, 2012 5:51 PM | Posted by Katherine Heckert | Permalink
In Nevada v. Bank of America Corp., --- F.3d ----, 2012 WL 688552 (9th Cir. (Nev.) Mar. 2, 2012), the Ninth Circuit was confronted with whether Nevada’s parens patriae lawsuit against Bank of America based on widespread complaints could be removed to Federal Court under the Class Action Fairness Act, including whether it could be classified as a mass action. Find out what the Ninth Circuit concluded, after the jump. read more
February 14, 2012 9:51 AM | Posted by Katherine Heckert | Permalink
In Sam Duran et al. vs. U.S. Bank National Assn., No. A125557 (Cal. Ct. App. Feb. 6, 2012), the California District Court of Appeals relied on the landmark Supreme Court decision in Wal-Mart to determine whether 20 out of 260 is a sufficient sample size to support class certification. What did they conclude? Find out, after the jump. read more
February 10, 2012 10:08 AM | Posted by Katherine Heckert | Permalink
In Skilstaf, Inc. v. CVS Caremark Corp., --- F.3d ----, 2012 WL 400369 (C.A.9 (Cal.)), the Ninth Circuit considered an appeal from a dismissal of a putative class action filed in a California federal district court, based on a Massachusetts federal district court’s certification of a nationwide class and approval of a class settlement.  A class member who objected in the Massachusetts case filed suit in California also seeking to represent a nationwide class, seeking damages based on the same facts as the Massachusetts case but against different defendants. Did the Ninth Circuit find this to be an appropriate basis for an action? Find out, after the jump.   read more
February 10, 2012 9:39 AM | Posted by Katherine Heckert | Permalink
Three years after initial class certification, the Ninth Circuit in Mazza v. American Honda, No. 09-55376 (Jan. 12, 2012) reviewed the District Court’s opinion, considering, in part, whether the Wal-Mart affirmative burden to demonstrate that a common question of fact or law exists was met to resolve the issues “in one stroke.”  Were such common issues present in Mazza, where consumers across the country were exposed to different advertising?  Find out, after the jump. read more