Consumer class action litigation—often accusing the defendant company of deceiving its customers—strikes at the heart of a company’s reputation, goodwill, and brand—all of which are often built over the course of many years or decades. As such, these cases pose not only the threat of immense litigation and liability costs, but also irreparable, and potentially fatal, future damage to the company’s brand. By way of recent example, for the past several years, a putative class of plaintiffs from several states took aim at Tropicana’s Pure Premium (“TPP”) orange juice, claiming that the company deceived and misrepresented the public concerning its popular orange juice. Continue reading “Class Gets the Squeeze: Class Certification Denied in In Re: Tropicana Orange Juice Marketing and Sales Practices Litigation, Civil No. 2:11-07382, MDL 2353 (D.N.J. Jan. 22, 2018)”
A nationwide class of 17.9 million members was certified by a judge in the District of New Jersey last week in Mendez v. Avis Budget Group, Inc. and Highway Toll Administration LLC. The Court also granted Florida and New Jersey sub-classes. The suit alleges that Avis secretly charged drivers who rented cars for an electronic toll-payment service (“e-Toll”). Specifically, Plaintiff Jose Mendez alleged that his rental agreement with Avis did not specify he would be automatically enrolled as an e-Toll subscriber and charged an alleged convenience fee of $2.50 per day and up to $10 a week for the service, irrespective of whether he paid for the highway tolls he incurred. Continue reading “EZ-Pass Paid and Certified: Nationwide Class Certification Granted under New Jersey’s Consumer Fraud Act”
While questions remain about the Consumer Financial Protection Bureau’s (“CFPB”) future power, the agency, which was created by the Dodd-Frank Act in the wake of the 2008 economic crash, issued a powerful Final Rule that will ban companies from using class action waivers in arbitration clauses. The Final Rule will go into effect 60 days after its publication in the Federal Register, and arbitration agreements entered into 180 days after publication must comply with the new rule. Retail clients, banks and financial institutions, debt collectors, and credit card companies may be most impacted by the new rule, as they often utilize these arbitration clauses in consumer agreements as a less expensive—and private—alternative to litigation. The CFPB, which has faced intense scrutiny from the Trump Administration as well as challenges in federal courts, reasoned that class action litigation waivers effectively foreclose consumers from pursuing small-dollar disputes on an individual basis because doing so is not cost effective.
A Discussion of the Third Circuit’s Recent Decision in Chassen
In Chassen v. Fid. Nat’l Fin., Inc., 2016 U.S. App. LEXIS 16489 (3d Cir. N.J. Sept. 8, 2016), Plaintiffs represented a putative class of New Jersey real estate purchasers and refinancers who were allegedly overcharged fees in connection with the recording of their deeds and mortgage instruments. Plaintiffs alleged that Defendants charged them more than it cost to record these documents with the county clerk and pocketed the difference. Plaintiffs also alleged that the class claims totaled over $50 million.
In 2009, Plaintiffs filed a complaint in the U.S. District Court for the District of New Jersey alleging both breach of contract and violation of New Jersey law. Defendants moved to dismiss some of these claims and raised various affirmative defenses. Defendants did not seek to compel arbitration based upon arbitration clauses contained in contracts with Plaintiffs. The parties litigated the case for two and a half years, focusing primarily on class certification, during which the parties conducted broad discovery and filed several motions on the merits. Continue reading “Arbitration of Claims to Avoid Costly Putative Class Action Lawsuits”
The All-Important Factors for Class “Numerosity”
On September 13, 2016, the United States Court of Appeals for the Third Circuit set forth for the first time a “non-exhaustive list” of factors for a District Court judge to consider when determining whether joinder would be impracticable for purposes of the class action “numerosity” requirement. In re Modafinil Antitrust Litigation, No. 15-3475 (3d Cir. Sept. 13, 2016). These factors include (1) judicial economy, (2) the claimants’ ability and motivation to litigate as joined plaintiffs, (3) the financial resources of class members, (4) the geographic dispersion of class members, (5) the ability to identify future claimants, and (6) whether the claims are for injunctive relief or for damages. Id. at *31-32.
In order to gain class certification, a putative class must satisfy a number of requirements, including that “the class is so numerous that joinder of all members is impracticable.” F.R.C.P. 23(a)(1). The Rule does not define “numerous,” and it is left to the Court to decide on a case-by-case basis whether a particular putative class meets this requirement. Despite the need for individualized factual analysis, a class of 20 or fewer is generally too small and a class of over 40 is usually sufficiently numerous. In re Modafinil at *24-25. While the Court noted that “the number of class members is the starting point of our numerosity analysis,” id. at *25, the Court focused on whether joinder is impracticable. Continue reading “Judicial Economy and Joined Plaintiffs”