Games People Play: Supreme Court Can Put a Stop to an Obvious CAFA Workaround

Featured Expert Contributor, Litigation Strategies

Joe G. Hollingsworth, a Partner at Hollingsworth LLP, with Katharine R. Latimer, a Partner at the firm and a member of WLF’s Legal Policy Advisory Board.

A printer-friendly PDF version of this commentary is available here.

Earlier this fall, the Supreme Court took up the Class Action Fairness Act of 2005 (CAFA) when it granted certiorari in Home Depot U.S.A., Inc. v. Jackson, 880 F.3d 165 (4th Cir. 2018).  We’re hoping for a slap-down because the Home Depot decision and its ilk improperly deny an entire sub-category of defendants protection from abusive state court class actions.

CAFA is an important statutory safeguard that Congress enacted to rectify serious class action abuses in state courts.  See CAFA, S. Rep. No. 109-14, at 13 (2005).  Congress expressly found that ungainly and abusive interstate class actions “(A) harmed class members with legitimate claims and defendants that have acted responsibly; (B) adversely affected interstate commerce; and (C) undermined public respect for our judicial system.”  CAFA § 2(a)(2) (codified at 28 U.S.C. § 1711 notes). Continue reading “Games People Play: Supreme Court Can Put a Stop to an Obvious CAFA Workaround”

Unreasonable Second Circuit Decision Sets Daunting Precedent for Packaged-Food Makers

cheez itA decision this month from the U.S. Court of Appeals for the Second Circuit reunites us with an old friend, The Reasonable Consumer. As we’ve discussed in previous posts here and in Washington Legal Foundation publications, The Reasonable Consumer has figured prominently in consumer class-action lawsuits that allege harm from supposedly deceptive or misleading food labels. That’s because the question at issue in the Second Circuit case, Mantikas v. Kellogg Company, is a common one in Food Court litigation: would a reasonable consumer interpret the relevant information on the food package the same way the plaintiff claims to have read it, and be similarly misled? Continue reading “Unreasonable Second Circuit Decision Sets Daunting Precedent for Packaged-Food Makers”

In 2019, Federal Appellate Courts Will Address Impact of SCOTUS Jurisdiction Ruling on Class Actions

DC CircuitSince the U.S. Supreme Court’s landmark decision in Bristol-Myers Squibb v. Superior Court (BMS), litigants and courts have struggled to determine its impact on future cases.  The Court held in BMS that courts may not exercise jurisdiction over nonresident defendants with respect to nonresident plaintiffs’ claims arising from conduct that occurred outside the State. This limits defendants’ exposure to nationwide mass-tort actions to States where they are “at home” and subject to that forum’s general personal jurisdiction.

Class actions are now at the forefront of the fight to define BMS. To date, no federal circuit court has considered whether BMS applies equally to class actions as it does to mass-tort actions. But several circuit courts will have the opportunity to resolve this question in 2019, quite possibly with differing results. A WLF Working Paper published in March 2018 framed the question these courts will have to answer as follows: If joinder of plaintiffs does not establish specific jurisdiction over the defendant for nonresident plaintiffs’ claims (as in BMS), can the result be any different when the nonresident plaintiffs are instead absent members of a class? Continue reading “In 2019, Federal Appellate Courts Will Address Impact of SCOTUS Jurisdiction Ruling on Class Actions”

New York Regulator Approves Internal Use of “Permissioned” Blockchain by Commercial Bank—Other Institutions Should Follow

Guest Commentary

thompson_max_web_10262018_7561796858267778162By Maxwell T.S. Thompson, an Associate with Murphy & McGonigle, P.C. in the firm’s New York, NY office. Prior to joining the firm, Mr. Thompson was Assistant General Counsel and Assistant Corporate Secretary with Bank Leumi USA and served in the General Counsel’s office of the New York State Department of Financial Services.

On December 4, 2018 the New York State Department of Financial Services (“NYDFS”) announced that it had approved an application by Signature Bank to offer a new blockchain-supported digital payment platform named “Signet.” Housed entirely within Signature, the Signet platform “will leverage blockchain technology in its architecture, allowing commercial and asset management clients to make payments in U.S. dollars 24-hours-a-day, 7-days-a-week, 365 days a year.”1 Continue reading “New York Regulator Approves Internal Use of “Permissioned” Blockchain by Commercial Bank—Other Institutions Should Follow”

DOJ Modifies Policy on Credit for Cooperation by Corporate Employees

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with William E. Moschella, a Shareholder in the firm’s Washington, DC office.

Following an internal review of the Department of Justice’s policy concerning individual accountability in corporate cases, Deputy Attorney General Rod Rosenstein recently announced significant changes to the policy. Under the new policy, DOJ will treat civil cases differently than criminal cases when evaluating a corporation’s cooperation in an investigation. This change is a modification of the 2015 policy memo issued by then-Deputy Attorney General Sally Yates that required DOJ lawyers to investigate any individuals responsible for illegal corporate conduct before settling a case. The modified policy restores the discretion of DOJ attorneys in civil cases to approve settlements without investigating every individual corporate employee who might potentially be responsible for the illegal conduct. Continue reading “DOJ Modifies Policy on Credit for Cooperation by Corporate Employees”

Artificial Intelligence Will Benefit Us Immensely—If We Don’t Get in the Way

IRobotIdeas are becoming more expensive. Larger teams of scientists are taking longer and spending more to discover less. A common theory for these diminishing returns compares exploring the laws of nature to exploring land. Pioneers chart the most accessible areas. Later generations must grope their way across remote and forbidding terrain to find anything new; their expeditions need more preparation, more equipment, and more support. One of the many marks of increasing strain is the advancing age at which Nobel laureates reach their prize-winning breakthroughs. It appears that young scientists need more time to master the growing body of knowledge that lies between them and the frontier of a field.

Scientific discovery drives technological innovation, which in turn drives productivity growth. According to a recent study, the average researcher in the 1930s generated more productivity growth than do 20 researchers today. American spending on research and development has grown ten-fold since the 1950s. American productivity growth, meanwhile, has shrunk. Slowing productivity growth and slowing economic growth go hand in hand. Continue reading “Artificial Intelligence Will Benefit Us Immensely—If We Don’t Get in the Way”

Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case

roibal_lucia_webGuest Commentary

By Lucía Roibal, an Associate with Morrison & Foerster LLP in the firm’s San Francisco, CA office. This commentary is reposted with permission, originally appearing on November 30, 2018 in the firm’s Class Dismissed  blog.

On September 6, 2018, Kimberly-Clark and affiliates filed a petition for writ of certiorari in Kimberly-Clark, et al. v. Davidson, No. 18-304, following a decision in the Ninth Circuit denying Kimberly-Clark’s motion to dismiss.  As noted in previous posts (here and here), the Ninth Circuit had resolved a split among district courts in the circuit and held that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling if he or she sufficiently alleges intent to repurchase the product in the future.  In Kimberly-Clark’s petition, the companies ask the Supreme Court to resolve the issue of whether a consumer, who after using a product and determining that a representation concerning that product is allegedly misleading, can plausibly allege a “real and immediate threat” that she will be deceived by the same representation in the future so as to establish standing to seek an injunction. Continue reading “Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case”