Litigation After Devastation: The Legal Storm Surge

Bridges crumbling in Texas. Houses turned to toothpicks in the USVIs. Newly-formed rivers ravaging the streets in South Florida. The devastating destruction from the recent hurricanes that have pummeled the U.S. has uprooted many peoples’ homes and lives, but we have only begun to feel the impact of the surge.

Massive relief efforts have begun, national fundraising, news coverage, responsive legislation, and building codes to name a few. A litigation surge is swelling as well. We have seen several types of cases and class actions churn from a hurricane’s aftermath. Here are some of the types of cases, coverage issues, and expert needs you may see after the storm.

Property Damage and Meteorological Causation

Insurance companies insuring the Southern United States are bracing for the waves of claims that will soon be flooding in. Just as it was following Hurricanes Katrina, Ivan, and Sandy, the hotly-debated issue of whether the damage was caused by wind or water will be the likely focus. While most homeowner insurance policies will cover water damage that was caused by a roof or window that was compromised by wind and allowed water intrusion, most do not cover water that rises from the ground level and enters the home. Experts will be relied upon to determine how water got into a structure, even when it is entirely obliterated.

Insurance companies and attorneys will be looking for experts in meteorology, often with advanced degrees and testifying experience, who can opine on the types of weather conditions that might have existed at a given time in a given place (i.e., Key West when Hurricane Irma struck). The experts could come from academia or environmental institutes and societies. They will be asked to review various data points and speak on weather conditions at a particular time and place to support causation for insurance coverage. Structural engineers will also be needed, preferably with experience in standard insurance practices, procedures, and protocols in evaluating damage caused by hurricanes. They will need to have an understanding of insurance claims handling and will be asked to review various reports and data, some from other engineers, discussing damage caused to structures by the hurricane and opine as to whether or not the reports and data are accurate.

Structural Failures and Faulty Design/Construction

While many large, concrete commercial buildings and bridges are designed to withstand 150+ mph winds and flooding,  they can still be left severely damaged after a storm blows through. Structural failure of buildings, roofs, bridges, and roadways that were expected to withstand hurricane winds will lead to litigation over damage caused by the failure. Structural engineers with expertise in the types of structures at issue, likely licensed engineers, will be needed to examine damage patterns through photos, video, or via a post-storm on-scene inspection. They will also need to use meteorological wind information to determine the cause of the failure and the quality of the design or construction.

Class Actions for Coverage Determinations

Often, the core issues in insurance-related storm damage cases are similar across a wide span of policyholders. These cases will vary depending on the coverage matter at issue, but the most sought-after experts will be familiar with insurance claims standards, protocols, and policy interpretation. Construction experts may also be needed to opine on the necessity and extent of certain repairs required after a storm. Also, standard practices and interactions between contractors and insurance companies during the re-build process will come into question. Class actions may be filed as well, simply as placeholders to toll certain claims-filing deadlines or allow broader bad faith discovery against insurance companies who refuse to pay mass claims.

Litigation Over Price-Gouging

One of the worst scenarios to follow a storm is wide-scale price-gouging and scamming by companies trying to capitalize on the desperation and vulnerability of storm victims. Before the storm, many people preparing for power outages or evacuation will see unfair spikes in essentials such as water and gas. After the storm, shady contractors and tree-removers often flood in, lie about their licensing and credentials, and charge exorbitant fees while performing shoddy, haphazard work, or no work at all. Many states, including Florida, have made it a crime for any service provider to offer or sell essential commodities for an amount that “grossly exceeds the average price” during the thirty days following a declaration of emergency. In the days before Hurricane Irma’s approach, many reported price-gouging for essentials such as water, ice, batteries, and gas when thousands of Floridians were stocking up or evacuating. Class actions alleging price-gouging will likely occur following the storm. Experts in standard industry pricing, manufacture costs, and storm clean-up and repair may be called in to opine on the “average price” of certain essential commodities and post-storm services.

In the wake of Hurricanes Harvey and Irma, we are gearing up for the incumbent waves of litigation and expert requests we anticipate will follow. What types of cases, class actions, and expert needs are you expecting?

This post was written by Annie Dike of IMS ExpertServices, All Rights Reserved. © Copyright 2002-2017
For more legal analysis go to The National Law Review

Consumer Claims Survive Motion to Dismiss in Target Data Breach Class Action

Mintz Levin Law Firm

A recent ruling by Federal District Judge Paul Magnuson will permit most of the consumer claims in the Target data breach litigation to survive Target’s motion to dismiss.  This most recent ruling follows on the heels of the court’s December 2 decision partially denying Target’s motion to dismiss consolidated complaint of the banks that issued the credit and debit cards that were subject to the breach.  The late 2013 data theft that gave rise to the consumer and issuer bank claims was caused by malware placed by hackers on Target’s point-of-sale (“POS”) terminals.  The malware allowed the hackers to record and steal payment card data as customers’ credit or debit cards were swiped.  In the consolidated consumer complaint, 117 named plaintiffs allege that Target wrongfully failed to prevent or timely disclose the data theft.  Plaintiffs also contend that Target failed to disclose the purported insufficiency of Target’s data security practices.  The consumers assert claims under the laws of 49 states and the District of Columbia for negligence, breach of contract, breach of data notification statutes and violation of state unfair trade practice statutes.  The consumer complaint also purports to assert those claims on behalf of a putative plaintiff class consisting of every Target customer whose credit or debit card information was stolen in the data breach.The court’s latest ruling rejected arguments by Target as to standing and damages that would have required dismissal of the consumer claims in their entirety.  The court did state, however, that Target can revisit the question of whether plaintiffs had sustained actionable injuries after discovery has concluded.  And, even though most of the consumer Plaintiffs’ claims survive, the court did rule that that certain of the claims alleged under particular states’ laws should be dismissed.  As is true of the court’s denial of Target’s motion to dismiss the issuer banks’ consolidated complaint, the denial of the motion to dismiss does not resolve the merits of the surviving consumer claims.  Like the surviving issuer bank claims, the consumer claims that were not dismissed will now be the subject of extensive discovery and further motion practice relating to class certification and summary judgment.

Court rejects Target’s arguments on standing and injury:  As is common in data breach cases, Target’s primary ground for seeking dismissal of the consumer claims was lack of standing due to the absence of actionable consumer injury.  In its motion to dismiss, Target argued that none of the plaintiffs had alleged a present injury sufficient to establish “case or controversy” standing under Article III of the United States Constitution.  Specifically, Target contended that none of plaintiffs’ alleged present injuries either constituted a present harm to plaintiffs or was fairly traceable to the theft of payment card data.  Target’s central argument was that allegations that unauthorized charges had been made on plaintiffs’ payment cards did not plead actionable injury because plaintiffs did not – indeed, likely could not – allege that such charges had not been or would not be reimbursed by the card issuing banks.  Target further argued that other alleged injuries could not fairly be traced to theft of payment card data because they could only have arisen from unrelated conduct (such as identity theft resulting from a plaintiff’s stolen social security number) or were not fairly traceable to the data theft itself (such as loss of access to funds based on plaintiffs’ own voluntary closing of accounts).

The court gave these arguments cursory treatment.  Judge Magnuson disagreed with Target’s injury analysis, finding that “Plaintiffs have alleged injury” in the form of “unlawful charges, restricted or blocked access to bank accounts, inability to pay other bills, and late payment charges or new card fees.”  Target contended that such alleged injuries are insufficient to confer standing because “Plaintiffs do not allege that their expenses were unreimbursed or say whether they or their bank closed their accounts . . . .”  The court rejected this argument, stating that Target had “set a too-high standard for Plaintiffs to meet at the motion-to-dismiss stage.”  In so ruling, however, Judge Magnuson merely deferred to another day a decision on whether the injuries alleged were indeed fairly traceable to the alleged wrong doing.  Despite concluding that Plaintiffs’ allegations were “sufficient at this stage to plead standing,” the court nonetheless stated that, “[s]hould discovery fail to bear out Plaintiffs’ allegations, Target may move for summary judgment on the issue.”  Thus, it remains open to Target to show that neither Plaintiffs nor putative class members suffered injuries fairly traceable to the data breach.

The court’s finding that Plaintiffs had alleged actionable injuries also supported its denial of Target’s request that the Court dismiss claims asserted under 26 state consumer protection laws that required allegation of pecuniary injury.  Similarly the court rejected Target’s argument that Plaintiffs’ negligence claims should be dismissed for failure to allege cognizable damages.

Court dismisses some state consumer protection law claims; most survive.  Plaintiffs brought unfair or deceptive trade practice claims under the consumer protection statutes of 49 states and the District of Columbia.  The court dismissed claims under Wisconsin law because the subject statute contains no private right of action.  The court also dismissed claims asserted on behalf of absent class members under the consumer protection laws of Alabama, Georgia, Kentucky, Louisiana, Mississippi, Montana, South Carolina, Tennessee and Utah, finding that the laws of those states, which preclude the assertion of consumer protection claims by means of a class action, “define the scope of the state-created right” and preclude certification of a class to pursue such claims (quoting Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 423 (2010)).  Otherwise, as noted above, Judge Magnuson found that plaintiffs’ allegations, including their allegations of injury, asserted actionable class and individual claims under the remaining states’ consumer protection statutes, and declined to dismiss such claims.

Certain data breach notice claims survive motion to dismiss.  Plaintiffs asserted claims against Target under the date breach notification statutes of 38 states, alleging that Target had failed to disclose the data breach as soon as required under those laws.  As with plaintiffs’ other claims, the court rejected as premature Target’s argument that plaintiffs had not alleged any actionable damages flowing from alleged violations of state data breach notification statutes.  Certain of Target’s arguments for dismissal based on statutory language prevailed.  Plaintiffs conceded that the data breach statutes in Florida, Oklahoma, and Utah did not permit a private right of action, and voluntarily withdrew those claims.  Where the applicable statutes provided only for enforcement by the state attorney general (as is true in Arkansas, Connecticut, Idaho, Massachusetts, Minnesota, Nebraska, Nevada and, Texas), the court dismissed Plaintiffs’ claims.  Where the remedies available under other states’ laws were non-exclusive or ambiguous –as was the case in Colorado, Delaware, Iowa, Kansas, Michigan and Wyoming – the court declined to dismiss Plaintiffs’ claims.  Where applicable state laws were silent as to the authority to enforce the enactment, the court inferred a private right of enforcement in all states except Rhode Island, where controlling authority holds that if a statute does not expressly provide for a private cause of action, such a right cannot be inferred.  As to all other states, the court agreed with plaintiffs’ argument that there is either a permissive cause of action or that there is a private right to enforce data breach notification statues under applicable state consumer protection statutes.

Negligence claims survive where not barred under the economic loss doctrine:  Actual damages is a required element of a common law negligence claim.  The court’s rejection of Target’s argument that Plaintiffs had failed to allege actionable injury precluded dismissal of Plaintiffs’ negligence claims in their entirety for failure to plead damages.  Under certain states’ laws, however, the so-called “economic loss doctrine” requires dismissal of claims for negligence where the alleged injury consists solely of economic loss rather than personal injury or property damage.  Following state authority, the court invoked the economic loss doctrine to dismiss negligence claims based on the economic loss rule under Alaska, California, Georgia, Illinois, Iowa and Massachusetts law.  The court declined to dismiss negligence claims under District of Columbia, Idaho and New Hampshire law, holding that precedent in those jurisdictions required additional factual development to determine whether there exists any special duty that would vitiate the economic loss doctrine.  Finally, the court held that the facts pleaded in the Complaint satisfied the exception to the economic loss doctrine applicable under New York and Pennsylvania law where there is a duty to protect from the specific harm alleged.

Breach of implied contract claims survive:  Judge Magnuson held that the existence of an implied contract turns on issue of fact that cannot be resolved at the motion to dismiss stage because “a jury could reasonably find that a customer’s use of a credit or debit card to pay at a retailer may include the implied contract term that the retailer “will take reasonable measures to protect the information” on those cards (citing In re Hannaford Bros. Customer Data Sec. Breach Litig., 613 F. Supp. 2d 108, 119 (D. Me. 2009)).

Breach of contract claim dismissed without prejudice:  The Complaint alleges that Target violated the terms of the card agreement for the Target REDcard, in which Target states that it “use[s] security measures that comply with federal law.”  The Complaint, however, fails to specify the federal law with which Target purportedly failed to comply.  Accordingly, the court dismissed that claim without prejudice, allowing Plaintiffs leave to replead that claim to specify, if possible, the state law that had been violated.

Bailment claim dismissed:  A common law bailment claim consists of wrongful failure to return tangible property entrusted to another.  Plaintiffs, however, do not and cannot allege that stolen payment card information was given to Target with expectation of return. Therefore, the court dismissed Plaintiffs’ bailment claim with prejudice.

Unjust enrichment claim survives:  Plaintiffs claim that Target is liable for unjust enrichment because it knowingly received or obtained something of value which in equity and good conscience it should not have received.  This claim is based on two theories.  The first is an “overcharge” theory claiming that Target charges an unearned premium for data security.  The second theory states that class members would not have shopped at Target had Target disclosed alleged deficiencies in its data security.  The court rejected the first theory as unsupported as a matter of law, but concluded, without citation to authority, that the “‘would not have shopped’ theory . . . is plausible and supports their claim for unjust enrichment.”

Significant obstacles remain for consumer claims:  The court’s refusal to accept Target’s injury arguments at the motion to dismiss stage does not eliminate Plaintiffs’ burden to prove that consumers suffered actionable losses.  Because consumers generally do not have to pay for fraudulent charges on their payment cards, such activity will not provide a basis to establish cognizable damages.  Nor is the cost of credit monitoring or other activities associated with avoiding identity theft or adverse credit history likely to provide grounds for proving actionable damages.  A majority of courts that have addressed the issue have held that such costs are not actionable as a necessary and reasonable consequence of a payment card data breach.  And even where fraud mitigation costs have been treated as cognizable injury – as was the case in Anderson v. Hannaford Bros. Co., 659 F.3d 151 (1st Cir. 2011) – the court nonetheless denied plaintiffs’ motion for class certificationbecause questions of whether individual consumers’ remedial actions were reasonable and what such actions reasonably should have cost could not be determined without taking testimony from every member of the class, thereby raising highly individualized issues of fact and law that would preclude trying class members’ claims through proof common to the class as a whole.  The parties will have the opportunity to grapple with these issues after discovery has concluded.



U.S. Supreme Court Clarifies Procedures for Removal to Federal Court under Class Action Fairness Act

Jackson Lewis Law firm

In a divided 5-to-4 opinion, the U.S. Supreme Court has held that defendants seeking to remove a case to federal court under the Class Action Fairness Act (“CAFA”) need only allege in the notice of removal an amount in controversy in excess of the $5 million threshold and need not attach evidence to the notice of removal proving the amount in controversy. Dart Cherokee Basin Operating Co., LLC v. Owens, No. 13-719 (Dec. 15, 2014).

Reversing the Tenth Circuit Court of Appeals’ decision, the majority opinion (authored by Justice Ruth Bader Ginsburg and joined by Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, and Sonia Sotomayor) held that a notice of removal need not contain evidentiary submissions because the plain language of the removal statute itself requires only a “short and plain statement of the grounds for removal.”


In the case below, the plaintiff, Brandon Owens, had filed a putative class action in Kansas state court alleging that defendants Dart Cherokee Basin Operating Company, LLC and Cherokee Basin Pipeline, LLC underpaid royalties they owed to Owens and the putative class members under oil and gas leases. The complaint failed to plead a specific amount of damages, seeking only “a fair and reasonable amount” of damages on behalf of Owens and the putative class members.

The defendants removed the case to the U.S. District Court for the District of Kansas under CAFA. In their notice of removal, the defendants alleged that the purported underpayments to the putative class members totaled more than $8.2 million, but defendants did not attach to their notice of removal any evidence to support the alleged amount in controversy. The plaintiff moved to remand the case, alleging that the defendants’ notice of removal was deficient because it failed to include evidence proving the amount in controversy exceeded the $5 million threshold under CAFA. The District Court granted the plaintiff’s motion to remand. A divided Tenth Circuit Court of Appeals subsequently denied defendants’ petition for review and petition for en banc review.

Supreme Court Decision

In the majority opinion, the Supreme Court noted the federal statute setting forth the requirements for a notice of removal (28 U.S.C. § 1446(a)) requires only that the notice contain “a short and plain statement of the grounds for removal.” The majority went on to note that, “[b]y design, § 1446(a) tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure” and that the legislative history of § 1446(a) indicates the statute was intended to “simplify the pleading requirements for removal and . . . clarify that courts should apply the same liberal rules [to removal allegations] that are applied to other matters of pleading.”

The majority went on to explain that “when a defendant seeks federal-court adjudication, the defendant’s amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court.” When the plaintiff does contest the defendant’s amount-in-controversy allegation, the majority held, “both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.” The majority concluded by stating that a notice of removal need only include “a plausible allegation” that the amount in controversy is met, and evidence to establish the amount in controversy is required only when the amount in controversy is contested by the plaintiff or questioned by the court.

Dissenting Opinion

 Justice Antonin Scalia’s dissent (which was joined by Justices Anthony Kennedy and Elena Kagan, and joined in part by Justice Clarence Thomas) did not focus on the underlying question regarding the requirements for removal under CAFA. The dissent questioned whether the Supreme Court could even address the substantive issue in light of certain procedural and jurisdictional questions, and does not call into question the reasoning of the majority’s substantive holding.


The majority’s opinion resolves a prior split among circuit courts regarding a defendant’s burden when removing a case under CAFA. The law is now settled that a removing defendant need only make a good faith allegation in the notice of removal regarding the amount in controversy in order to meet its burden on removal. Only if the amount in controversy is challenged must a defendant offer evidence. Moreover, the majority made it clear that there is no presumption against removal jurisdiction in cases removed under CAFA, rejecting an argument often made by the plaintiffs contesting removal under CAFA.



Halliburton II: Supreme Court Upholds Basic Presumption

Morgan Lewis logo

On June 23, the U.S. Supreme Court issued its long-anticipated decision in Halliburton Co. v. Erica P. John FundInc. (Halliburton II).[1] Chief Justice Roberts delivered the opinion of the Court, in which Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Ginsburg filed a concurring opinion, in which Justices Breyer and Sotomayor joined. Justice Thomas filed an opinion concurring in the judgment, in which Justices Scalia and Alito joined.

The Halliburton II case generated significant publicity because it presented the Supreme Court with the opportunity to reexamine the fraud-on-the-market presumption created in Basic v. Levinson.[2] The Court in Basic held that, in a securities fraud class action, the plaintiff is entitled to a rebuttable presumption of reliance and, therefore, does not have to prove that each investor in the class relied on any alleged material misrepresentation. The foundation for the fraud-on-the market theory is the efficient-market theory, which presumes that, in an efficient market, all material, public information about a company is absorbed by the marketplace and reflected in the price of the security. The efficient-market theory has been under increasing attack in recent years, leading many to believe that the time may have come to overturn Basic.

In Halliburton II, the Supreme Court addressed whether to continue the fraud-on-the-market presumption unchanged, to cease the applicability of the fraud-on-the-market presumption altogether, or to alter the presumption. In the Court’s opinion, the majority declined to overrule or modify Basic’s presumption of classwide reliance, but it did hold that defendants may rebut the presumption at the class certification stage by introducing evidence that the alleged misrepresentation did not impact the market price. The majority determined that Halliburton had not demonstrated the “special justification” necessary to overturn “a long-settled precedent.”[3] The majority also rejected Halliburton’s request that the plaintiffs be required to show a price impact to invoke the presumption because “this proposal would radically alter the required showing for the reliance element.”[4] The majority did hold that defendants can rebut the presumption by showing lack of price impact at the class certification stage because “[t]his restriction makes no sense, and can readily lead to bizarre results.”[5] The majority therefore vacated the U.S. Court of Appeals for the Fifth Circuit’s judgment and remanded for further proceedings.

In a concurring opinion, Justice Ginsburg, joined by Justices Breyer and Sotomayor, noted that, although the decision would “broaden the scope of discovery available at certification,” the increased burden would be on defendants to show the absence of price impact, not on plaintiffs whose burden to raise the presumption of reliance had not changed.[6]

In a separate opinion concurring only in the judgment, Justice Thomas, joined by Justices Scalia and Alito, argued that Basic should be overturned for three reasons. First, the fraud-on-the–market theory has “lost its luster”[7] in light of recent developments in economic theory.[8] Second, the presumption permits plaintiffs to bypass the requirement—as set forth in some of the Court’s most recent decisions on class certification—that plaintiffs affirmatively demonstrate compliance with Rule 23. Third, the Basic presumption of reliance is “largely irrebuttable” because “[a]fter class certification, courts have refused to allow defendants to challenge any plaintiff’s reliance on the integrity of the market price prior to a determination on classwide liability,”[9] therefore effectively eliminating the reliance requirement.

The Supreme Court’s decision has significant implications for securities fraud litigation, particularly at the class certification stage. Although plaintiffs need not prove direct price impact and may instead still raise the presumption of reliance by showing an efficient market and that the information was material and public, defendants may now rebut this presumption before class certification by showing a lack of price impact. We believe that defendants’ ability to rebut the presumption by showing no price impact effectively swallows the rule that plaintiffs need not prove a price impact. This will undoubtedly lead to a battle of the experts at the class certification stage. Although the Court’s decision does not explicitly affect other proceedings, such as a motion to dismiss, the scope of the decision will certainly be tested in the coming months and years.

Article By:

[1]. No. 13-317 (U.S. June 23, 2014), available here.

[2]. 485 U.S. 224 (1988).

[3]Halliburton II, No. 13-317, slip op. at 4; see generally id. at 4–16.

[4]Id. at 17.

[5]. Id. at 19.

[6]. Id. at 1 (Ginsburg, J., concurring).

[7]Id. at 7 (Thomas, J., concurring).

[8]Id. at 8–9.

[9]. Id. at 13.

Supreme Court Limits Stipulations to Circumvent CAFA (Class Action Fairness Act)

ArmstrongTeasdale logo


The U.S. Supreme Court decided in State Fire Insurance Co. v. Knowles that a class representative plaintiff cannot use a precertification stipulation to evade the federal jurisdictional amount of CAFA. 28 U.S.C. 1332 (d)(2) &(6). In Knowles, plaintiff sued State Fire Insurance Co. but stipulated precertification that damages would not exceed $5 million dollars, the threshold limit to invoke CAFA jurisdiction. State Fire removed the case from Arkansas state court but the Federal District Court remanded it to the state court concluding that the amount in controversy fell below the CAFA threshold in light of plaintiff’s stipulation. The Supreme Court found that the stipulation could tie plaintiff’s hands because stipulations are binding on the party that makes them. However, such a stipulation would not be binding at this stage of the litigation because a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified. The Court therefore, vacated and remanded the case for further proceedings.

A good practice pointer learned from this case is that defendant’s should be mindful of the advantages of the CAFA and invoke federal court jurisdiction where possible. Also, a pretrial stipulation by the class representative does not prevent using CAFA if the other jurisdictional requirements for CAFA are met.

Article by:

Casey O. Housley


Armstrong Teasdale

Supreme Court Holds That State Attorney General Actions are Not “Mass Actions” Under Class Action Fairness Act (CAFA)



On January 14, the Supreme Court of the United States held that lawsuits that are filed in the name of a State Attorney General but seek relief on behalf of a State’s citizens cannot be removed to federal court as “mass actions” under the Class Action Fairness Act (CAFA)See Mississippi ex rel. Hood v. AU Optronics Corp., No. 12-1036 (Jan. 14, 2014). Resolving a split between the Fifth Circuit on the one hand and the Fourth, Seventh and Ninth Circuits on the other, the ruling means that businesses will have to defend AG actions in state courts, and state courts will have to resolve whether such actions can proceed even though the consumers on whose behalf they are brought have agreed to settle their claims in a class action or, conversely, to pursue their own claims individually rather than collectively.

“Mass Actions”

CAFA gives federal courts original subject matter jurisdiction over certain “class actions” and “mass actions.” It defines a “class action” as “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action” and defines a “mass action” as “any civil action . . . in which the monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action [exceed $75,000, exclusive of interest and costs].” 28 U.S.C. §§ 1332(d)(1)(B), (d)(11)(B)(i).[1] Excluded from the definition of “mass action” are (among other things) actions in which “all of the claims are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to State statute specifically authorizing such action . . . .” Id.§ 1332(d)(11)(B)(ii)(III).

The Hood Case

Jim Hood, the Attorney General of Mississippi, filed a parens patriaeaction that alleged that the companies that manufacture and market liquid crystal display (LCD) panels had engaged in price-fixing that violated the Mississippi Consumer Protection Act and Mississippi Antitrust Act. Hood sought equitable and compensatory relief on behalf of both the State and its citizens. The defendants removed the action to federal court under CAFA and the Attorney General moved to remand. The district court remanded, finding that the suit was not a “mass action” because it fell within the definition’s “general public” exception. The Fifth Circuit reversed. Looking at each claim rather than the action as a whole, it reasoned that the real parties in interest were not only the State but also the individual citizens who had purchased LCD products, and as a result the “claims of 100 or more persons [we]re proposed to be tried jointly.” Id. § 1332(d)(11)(B)(i). Hood then petitioned for certiorari, which the Supreme Court granted.

The Supreme Court’s Decision

Yesterday, the Supreme Court unanimously reversed. Justice Sotomayor’s opinion is a primer on statutory construction:

Respondents argue that the [mass action] provision covers [AG actions] because “claims of 100 or more persons” refers to “thepersons to whom the claim belongs, i.e., the real parties in interest to the claims,” regardless of whether those persons are named or unnamed. We disagree.

To start, the statute says “100 or more persons,” not “100 or more named or unnamed real parties in interest.” Had Congress intended the latter, it easily could have drafted language to that effect. Indeed, when Congress wanted a numerosity requirement in CAFA to be satisfied by counting unnamed parties in interest in addition to named plaintiffs, it explicitly said so: CAFA provides that in order for a class action to be removable, “the number of members of all proposed plaintiff classes” must be 100 or greater, and it defines “class members” to mean “the persons (named or unnamed) who fall within the definition of the proposed or certified class.” Congress chose not to use the phrase “named or unnamed” in CAFA’s mass action provision, a decision we understand to be intentional.

More fundamentally, respondents’ interpretation cannot be reconciled with the fact that the “100 or more persons” referred to in the statute are not unspecified individuals who have no actual participation in the suit, but instead the very “plaintiffs” referred to later in the sentence—the parties who are proposing to join their claims in a single trial….[2]

The Court then rejected the argument that “plaintiffs” should be read as including both named and unnamed parties, finding that such a reading “stretches the meaning of ‘plaintiff’ beyond recognition” and would impose an “administrative nightmare” on the lower courts:

The term “plaintiff” is among the most commonly understood of legal terms of art: It means a “party who brings a civil suit in a court of law.” It certainly does not mean “anyone, named or unnamed, whom a suit may benefit,” as respondents suggest.

Yet if the term “plaintiffs” is stretched to include all unnamed individuals with an interest in the suit, then §1332(d)(11)(B)(i)’s requirement that “jurisdiction shall exist only over those plaintiffs whose claims [exceed $75,000]” becomes an administrative nightmare that Congress could not possibly have intended. How is a district court to identify the unnamed parties whose claims in a given case are for less than $75,000? Would the court in this case, for instance, have to hold an evidentiary hearing to determine the identity of each of the hundreds of thousands of unnamed Mississippi citizens who purchased one of respondents’ LCD products between 1996 and 2006 (the period alleged in the complaint)? Even if it could identify every such person, how would it ascertain the amount in controversy for each individual claim?

We think it unlikely that Congress intended that federal district courts engage in these unwieldy inquiries. By contrast, interpreting “plaintiffs” in accordance with its usual meaning—to refer to the actual named parties who bring an action—leads to a straightforward, easy to administer rule under which a court would examine whether the plaintiffs have pleaded in good faith the requisite amount. Our decision thus comports with the commonsense observation that “when judges must decide jurisdictional matters, simplicity is a virtue.”[3]

The decision means that the troubling trend of retaining private class action lawyers to file public AG actions in state courts can continue and could conceivably quicken. It also raises a number of interesting questions the Court did not address, for example whether AG actions are barred by agreements to settle class actions brought on behalf of the same consumers,[4] or affected by agreements to resolve claims in individual arbitration rather than representative litigation.[5]

[1]           The defendants did not ask the Court to hold that the case qualified as a “class action,” although they had raised that point below. See Opinion at 4 & n.2.

[2]           Opinion at 5-6 (emphasis in original, citations omitted).

[3]           Id. at 7-10 (citations omitted).

[4]           Cf. New Mexico ex rel. King v. Capital One Bank (USA) N.A., 13-0513, 2013 WL 5944087, at *4-8 (D.N.M. Nov. 4, 2013) (finding that class action settlement barred AG action to the extent it sought compensatory relief).

[5]           Cf. Iskanian v. CLS Transp. Los Angeles, LLC, 206 Cal. App. 4th 949, 964 (2012) (finding that Concepcion requires enforcement of waiver of right to bring representative action under California’s Private Attorney General Act), review granted Sept. 19, 2012 (No. S204032).

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Drinker Biddle & Reath LLP

I Scream, You Scream, We All Scream For…Ascertainability? Re: How Ben & Jerry’s Defeated an “All Natural” Class Certification Motion

Sheppard Mullin 2012


On January 7, 2014, the Northern District of California refused to certify a class of Ben & Jerry’s purchasers who allegedly had purchased ice cream that was falsely advertised as “all natural.” Astiana v. Ben & Jerry’s Homemade, Inc., No. C 10-4387 PJH, 2014 U.S. Dist. LEXIS 1640 (N.D. Cal. Jan. 7, 2014).  This opinion shows the continuing viability of arguments based on ascertainability and the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) to defeat consumer class actions.  Thus, for many defendants, this opinion will get 2014 off to a delicious start.

In Astiana, the plaintiff alleged that certain Ben & Jerry’s ice creams were not “all natural” because they contained “alkalized cocoa processed with a synthetic ingredient.”  Astiana, p. 4.  After asserting claims under the Unfair Competition LawFalse Advertising Law, as well as common law fraud and unjust enrichment, the plaintiff sought to certify a class of all California purchasers of “Ben & Jerry’s ice cream products that were labeled ‘All Natural’ but contained alkalized cocoa processed with a synthetic ingredient.”

The court denied class certification.  First, the court held that the class was not ascertainable so that it was “administratively feasible to determine whether a particular person is a class member.” Astiana, p. 5.  The court found that the plaintiff provided no evidence as to how the plaintiff could tell which consumers purchased ice cream with the synthetic ingredients because the synthetic ingredient was not present in every ice cream labeled as “all natural.”  Furthermore, because cocoa could be processed with a “natural” alkali, the ingredient list that only said “processed with alkali” was insufficient to identify the non-natural ice creams.  Even though only one supplier provided Ben & Jerry’s with the alkalized cocoa, the evidence demonstrated that the supplier did not know whether a synthetic ingredient was used in every instance.  Thus, even if every package was labeled “all natural,” it was impossible to tell which products actually contained the synthetic ingredients that would make the advertised claim false under California law.

Second, applying Comcast, the court held that the plaintiff was required to show “that there is a classwide method of awarding relief that is consistent with her theory of deceptive and fraudulent business practices.”  Astiana, p. 21.  The plaintiff offered no expert testimony on calculating damages, contending, instead, that it would be “simple math” to calculate Ben & Jerry’s profits and award “restitutionary disgorgement.”  The court held that this was insufficient: there was no evidence that the price of Ben & Jerry’s “all natural” ice cream was higher than its ice cream without that label, thus there was no evidentiary model tying damages to plaintiff’s theory of the case.  Since Ben & Jerry’s sold its products at wholesale (rather than to the public directly), these calculations would be extremely difficult, thereby debunking the plaintiff’s claim that the damages could be figured out with “simple math” and proving the need for expert testimony.  In light of the plaintiff’s failure to present evidence of “a damages model that is capable of measurement across the entire class for purposes of Rule 23(b)(3),” class certification was denied.

Astiana demonstrates that plaintiffs seeking to certify class actions involving small consumables will continue to run into ascertainability problems.  See e.g. Carrera v. Bayer, Corp., 727 F.3d 300 (3d Cir. 2013).  Astiana also represents the application of the strong reading of Comcast, essentially telling plaintiffs “No damages expert, no certification.”  If courts continued to adopt this reading of Comcast, plaintiffs will no longer be able to gloss over these significant (and oftentimes difficult) damages issues by simply asserting that the court can certify now and figure out the damages later.

Article by:

Paul Seeley


Sheppard, Mullin, Richter & Hampton LLP