Current Issues in Federal Class Actions

Recently, there have been a number of developments in the case law involving federal class action practice – both within the Ninth Circuit and in the United States Supreme Court.  This white paper is an effort to highlight the salient developments and identify issues that will be subject at some point for resolution.

Highlights include: 

In Espinosa v. Ahearn (In re Hyundai & Kia Fuel Econ. Litig.), the Ninth Circuit should soon clarify application of California substantive law to nationwide class actions in the settlement context.

Following Bristol-Myers Squibb Co. v. Superior Court, ___ U.S. ___, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017), a substantial question has arisen in the case law as to whether the forum court in a nationwide class action must have personal jurisdiction over each putative class member.

In data breach cases, courts are grappling with the issue of what is concrete injury to establish Article III standing in federal class actions.  This is relevant to future harm that plaintiffs risk from a data breach.  A petition for certiorari is presently pending in Zappos.com, Inc. v. Stevens, 888 F.3d 1020 (9th Cir. 2018), that, if granted, will resolve a split among the circuits on the issue.

The Supreme Court continues to uphold arbitration provisions, including provisions waiving the right to pursue class relief.

Regarding expert evidence submitted in support of a motion to certify a class, the Ninth Circuit does not require admissible evidence.  There is, however, a different view in federal courts outside of California.  The Supreme Court may ultimately need to resolve the split.

Lastly, there are a number of class action and arbitration cases pending in the Supreme Court that should provide further guidance to litigants.  Perhaps, most significantly, the Court will address the use of cy près awards of class action proceeds that provide no direct relief to class members to settle class action cases.
 
Click here to read the full white paper.