Rand L. McClellan

Subscribe to all posts by Rand L. McClellan

Caution: Precertification Communications with Absent Class Members

Photo of Rand L. McClellanBy Rand L. McClellan on Posted in Precertification
Are absent members of an uncertified class or Fair Labor Standards Act (FLSA) collective action “parties” and thus “represented” by plaintiff’s counsel? If so, is defense counsel prohibited from speaking with absent class members? At first glance, the answer would appear to be no, for two reasons. First, “a nonnamed class member is [not] a … Continue Reading

State Court Adoption of Comcast v. Behrend

Photo of Albert G. LinPhoto of Rand L. McClellanBy Albert G. Lin and Rand L. McClellan on Posted in Class Certification
In Comcast v. Behrend, 569 U.S. 27 (2013), the United States Supreme Court clarified the requirements for establishing that classwide injury and damages predominate over individual issues for the purposes of FRCP 23(b)(3). In particular, where a party relies on a damages model to establish predominance, the model must be consistent with the theory of … Continue Reading

TCPA Class Denied Certification Due to Binding Authority of Yaakov and Proof of Individualized Issues of Consent

Photo of Rand L. McClellanBy Rand L. McClellan on Posted in TCPA
A recent order from the Northern District of Illinois granted a defendant’s motion to deny class certification regarding “unsolicited” fax advertisements allegedly sent in violation of the Telephone Consumer Protection Act (TCPA). The decision is notable in two respects. First, the court held that the D.C. Circuit’s recent decision in Bais Yaakov of Spring Valley … Continue Reading

‘Excessive’ Shipping Fees May Be Next Target of Consumer Class Actions

Photo of Jacqueline MatthewsPhoto of Rand L. McClellanBy Jacqueline Matthews and Rand L. McClellan on Posted in Consumer Class Action
Retailers offering online, telephone or catalog purchases may want to review the shipping fees charged to their customers in the wake of several class actions recently filed in California. Multiple retailers have been hit with consumer class actions challenging their shipping fees as exceeding the actual shipping costs incurred by retailers in fulfilling customer orders. … Continue Reading

“Administrative Feasibility” Rejected in the Ninth Circuit

Photo of Rand L. McClellanBy Rand L. McClellan on Posted in Class Certification
On Jan. 3, in Briseno v. Conagra Foods, Inc., Case No. 15-55727, the Ninth Circuit Court of Appeals held that Fed. R. Civ. P. 23 does not require class representatives to demonstrate that there is an “administratively feasible” means of identifying absent class members in order to certify a class. In rejecting the “administrative feasibility” … Continue Reading

Concrete and Particularized Part II: What Spokeo May Mean for Class Actions

Photo of Rand L. McClellanPhoto of Keesha N. WarmsbyBy Rand L. McClellan and Keesha N. Warmsby on Posted in Class Actions Privacy
This blog post is the second in a series of posts that Baker & Hostetler LLP is devoting to the significant decision Robins v. Spokeo, No. 13-1339, 537 U.S. ___ (2016) (Spokeo). Monday’s post focused on Spokeo’s effect on privacy class actions and big data. Today’s post focuses on the decision’s impact on class actions. … Continue Reading

Supreme Court Holds Unaccepted Offers for Full Relief Do Not Moot Class Actions

Photo of Rand L. McClellanPhoto of Jacqueline MatthewsBy Rand L. McClellan and Jacqueline Matthews on Posted in TCPA
Relying on “basic principles of contract law,” the Supreme Court on Wednesday held that an unaccepted settlement offer and offer of judgment under Rule 68 are “legal nullit[ies]” that have no effect on whether a live controversy remains between the parties. Campbell-Ewald Co. v. Gomez, No. 14-857. The upshot of the Court’s decision is that … Continue Reading

JCPenney Advertising Class Settlement Calls for $50 Million Payment for a California-Only Class

Photo of Rand L. McClellanPhoto of Jacqueline MatthewsBy Rand L. McClellan and Jacqueline Matthews on Posted in Class Action Trends, Class Certification
Retailers have been under siege, particularly in California, by putative class actions involving allegations of “false or misleading” advertising practices. Generally, the crux of the allegations is that retailers are inducing customers to make purchases by overstating or fabricating the amount that a customer will save by purchasing an item. In the past two years, … Continue Reading

Third Circuit Allows Putative TCPA Class Action to Proceed, Citing FCC Ruling,

Photo of Rand L. McClellanBy Rand L. McClellan on Posted in TCPA
On October 23, 2015, the Third Circuit vacated a summary judgment decision in Yahoo, Inc.’s favor based on a recent Federal Communications Commission (“FCC”) order that expanded the definition of an “autodialer” under the Telephone Consumer Protection Act (“TCPA”).  Dominguez v. Yahoo, Inc., No. 14-1751, slip op. at 9 (3d Cir. Oct. 23, 2015). The … Continue Reading

Class Certification of California Price Advertisement Case Gives Cause for Concern

Photo of Rodger EckelberryPhoto of Jacqueline MatthewsPhoto of Rand L. McClellanBy Rodger Eckelberry, Jacqueline Matthews and Rand L. McClellan on Posted in Class Certification
Spann v. JCPenney and People of California v. Overstock.com By Rodger L. Eckelberry, Rand L. McClellan, and Jacqueline K. Matthews June 30, 2015 A recent class certification decision in California involving challenges to a retailer’s price comparison advertisements should prompt retailers to carefully evaluate their sale advertising practices. Whether comparing to “regular” or previous prices, or to the sale … Continue Reading

Clapper and Data Breach Litigation

Photo of Rand L. McClellanBy Rand L. McClellan on Posted in Class Action Trends, Data Breach
In Clapper v. Amnesty International USA,  133 S. Ct. 1138 (2013), the Supreme Court recently held that individuals claiming injury from the federal government’s right to conduct electronic surveillance under the Foreign Intelligence Surveillance Act (FISA),  50 U.S.C. § 1881a, lacked standing to pursue their claims.  In reaching its holding, the Court made statements that should … Continue Reading

Second Circuit: Notice Required When Damages Not “Incidental” in a Rule 23(b)(2) Class

Photo of Rand L. McClellanBy Rand L. McClellan on Posted in Rule 23(b)(2) Class Actions, Settlements
Editors’ Note:  This article originally appeared as a “Client Alert” from Baker’s Class Action Defense team. Pointing out pitfalls in structuring enforceable class settlements, the Second Circuit Court of Appeals recently found that an absent class member’s claims were not barred by a prior settlement in a Rule 23(b)(2) class where monetary relief was not … Continue Reading
LexBlog