Rejection of Subway “Footlong” Settlement Highlights Absurd Incentives of Class Actions

1ftIn early 2013, when Australian teenager Matt Corby took to social media to share a photo of his recently purchased Subway “foot long” sandwich next to a tape measure revealing that the sandwich measured only 11 inches in length, he never could have anticipated the “viral” chain of events that he had just set into motion.

Other Subway customers and media outlets soon descended on Subway franchises to undertake their own sandwich measurements, prompting the New York Post to announce that “Some Subway ‘Footlong’ Subs Don’t Measure Up.”   According to the Post, four out of seven footlong sandwiches randomly purchased at Subway restaurants in Manhattan, Brooklyn, and Queens measured less than 12 inches in length (ranging from 11 to 11.5 inches). Continue reading

Seventh Circuit Judge Posner Rides into the Summer Sunset

posnerWe begin Fall 2017 blogging with an appreciative farewell.

This past Friday, September 1, US Court of Appeals for the Seventh Circuit Judge Richard Posner announced his retirement, effective immediately. He served on the circuit for 36 years, having been appointed by President Ronald Reagan in 1981.

Judge Posner was a principled skeptic of lawyer-driven litigation which, not surprisingly, led us to discuss a number of his opinions here at the WLF Legal Pulse.

Most recently, in Eye Drops, Water Fountains for Cats, and the Demise of a No-Injury Class Action, we recounted the unusual analogy Judge Posner used in his majority opinion to support the court’s dismissal of an especially officious no-injury class action filed against the makers of eye drops. Continue reading

Food-Court Follies: Judge Grates Parmesan-Cheese Multidistrict Litigation

parma cheeseThanks to America’s regrettably litigious nature, the “Reasonable Person” is always busy. This prototypically average, ordinary human being is routinely called upon in legal disputes governed by common-law tort principles and asked: What would you think or do in this situation? One strain of litigation—consumer-fraud class actions—has kept the Reasonable Person especially occupied in recent years.

A recent court case asked the Reasonable Person to put on her “reasonable consumer” hat and determine the meaning of the term “100% Grated Parmesan Cheese” as it appears on containers of shelf-stable, processed shaky cheese.

In February 2016, inspired by overblown media stories, 15 lawsuits were filed in 6 different courts against 7 defendants (Kraft Heinz Co., Albertsons Cos., Target Corp., Wal-Mart Stores, ICCO-Cheese Co., and Publix Super Markets) alleging common-law and statutory violations for those companies’ false or misleading use of that statement. Continue reading

Class Actions Clothed in Righteousness: Appeals Court Rejects Bargain-Hunters’ Suits for Lack of Injury

nordstrom rackBy Abbey Coufal, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Bargain shopping is not for the weary, but there is something thrilling about combing through items on tightly-packed circular racks, with the hope of hunting down the desired piece of clothing at a good price. Landing the perfect deal usually brings a feeling of satisfaction, and does not give rise to conflict with the retailer. But in America, even a bargain-finder who bought an unblemished sweater can turn around and sue the business on behalf of herself and countless other shoppers, claiming they were all fooled into making their purchases. Continue reading

Data-Breach Plaintiffs’ Lawyers Concoct New “Overpayment” Harm Theory, with Mixed Results

vtechPlaintiffs’ attorneys, like politicians, rarely let a good crisis go to waste. Digital crises, such as data-breach and hacking events, are no exception.

Defendants in data-breach-related lawsuits, however, have had a great deal of success beating back consumer-harm claims with motions to dismiss challenging plaintiffs’ lack of standing to sue. As in many of the food-labeling class actions that helped pave the way for data-breach suits, it is often hard for plaintiffs to identify any way that they were actually harmed—because typically they weren’t.

Some data-breach plaintiffs have begun to claim injury based on “overpayment.” Continue reading

Uncommon Defects and Unreliable Methods: U.S. District Court Effectively Applies ‘Daubert’ to Deny Class Certification

Featured Expert Column–Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In many civil lawsuits, parties introduce expert testimony to help the jury decide questions of negligence or causation. In class actions, expert testimony is also often employed to help the court answer questions under Federal Rule of Civil Procedure 23, such as whether a class is ascertainable or to develop a formula for awarding damages on a class-wide basis. In Kljajic v. Whirlpool Corp., the United States District Court for the Northern District of Illinois (St. Eve, J.) addressed the intersection of Daubert and Rule 23’s commonality and predominance requirements.

Under Rule 23(a), a plaintiff must show that there are questions of law or fact common to the class. And plaintiffs who seek certification under Rule 23(b)(3) must satisfy the more demanding predominance requirement, which looks to whether the common issues in the case are more important than the individualized issues. These two requirements are similar, and expert testimony can shed light on whether a case can be maintained as a class action. Continue reading

Days Apart, Second and Sixth Circuits Muddy the Waters on Class Ascertainability

2nd Circuit6th Circuit Whether federal district courts may certify a damages class action where no reliable, administratively feasible method exists for identifying class members is a question that has long plagued class-action defendants. The need for class ascertainability is especially dire in low-value consumer class actions in which manufacturers, distributors, and retailers are sued over “mislabeled” food, beverages, or other inexpensive consumer products. Unfortunately, the federal courts of appeals are sharply and hopelessly divided on whether Rule 23, which governs class actions in federal courts, includes an implicit ascertainability requirement. Continue reading