MVA Litigation

The practice of restricting plaintiff access to class procedures through binding arbitration agreements has garnered significant attention over the last five years on the heels of several U.S. Supreme Court decisions validating companies’ use of class waivers.  One of the open questions remains, “who has the authority to determine whether class arbitration is available when the arbitration clause is silent – courts or arbitrators?”  The U.S. Supreme Court has not addressed whether the availability of class arbitration is a substantive “gateway” issue for the ...

On Tuesday, the Consumer Financial Protection Bureau ("CFPB") released its long-awaited "Arbitration Study: Report to Congress, pursuant to Dodd–Frank Wall Street Reform and Consumer Protection Act § 1028(a)", which presents the results of the agency’s study of the use of arbitration agreements in the context of consumer finance agreements for credit cards, checking accounts, payday and other small dollar loans, general purpose reloadable prepaid cards, private student loans, auto purchase loans, and mobile wireless agreements.  The 728-page study is extensive, to ...

Patent litigation reform has been on the U.S. House Judiciary Committee agenda, with the recent reintroduction of legislation seeking to address patent litigation abuses and a hearing examining recent U.S. Supreme Court cases that have imposed some reforms that may, or may not, curtail the need for further legislative efforts.  In February, Chairman of the Judiciary Committee Rep. Rob Goodlatte reintroduced the bi-partisan Innovation Act, H.R. 9, which is the same in substance as the previous Innovation Act, H.R. 3309 that passed the House in December 2013, but ultimately ...

Most of the cases that come to mind when you think “class action” consist of a large group of plaintiffs (hundreds or multiple thousands) seeking authorization to proceed as a class in one lawsuit against one or a handful of defendants. It is the rare case in which a large group of defendants are certified as a class in order to facilitate resolution of one plaintiffs’ claims against them. Rare though it may be, Federal Rule of Civil Procedure 23(a) does explicitly allow for the certification of defendant classes if the prerequisites for class certification (numerosity ...

In the wake of several favorable U.S. Supreme Court decisions, companies increasingly are using arbitration agreements to control their exposure to class action liability.  Although recent cases have reinforced the power of arbitration agreements, companies must tread carefully when crafting their arbitration contracts and related class waivers.  In conjunction with giving force to arbitration agreements, the Federal Arbitration Act (“FAA”) limits the federal courts’ ability to review and reverse arbitrator decisions construing those agreements.  The Supreme ...

The Class Action Fairness Act of 2005 (“CAFA”) has found its way to the steps of the U.S. Supreme Court several times in the last two years, as plaintiffs and defendants seek to define the parameters of the federal law enacted, in part, to rectify state and local court abuses of the class action process and demonstrated biases against out-of-state defendants.  CAFA provides that a defendant may remove a state class action to federal court if the matter in controversy exceeds $5,000,000, exclusive of interest and costs, and certain other criteria are met.  On December 15, the U.S ...

Imagine that you are fighting to enforce your valid patents and after winning two jury verdicts you feel vindicated by the $74 million award you have been granted for the defendant’s role in inducing the infringement…then the appellate court says “try again,” because the defendant believed in good-faith that the patent was invalid.  Today you may get to wake up from this daydream, but this is the real-world scenario from which Commil USA LLC is seeking relief in the U.S. Supreme Court.  On December 5th, the High Court agreed to hear Commil’s appeal challenging the Federal ...

Employers continue to face an increasing number of lawsuits (including class and collective actions) claiming they violated the federal Fair Labor Standards Act (“FLSA”) based on a wide variety of policies and conduct.  Recent federal statistics for the 12-month period ending March 31, 2014 show 8,126 FLSA cases had been filed by employees in 2014, up nearly 5% from the cases filed in 2013 and more than double the cases filed ten years prior.  Against this backdrop of unyielding employee litigation, Tuesday’s pro-employer decision issued by a unanimous U.S. Supreme Court in ...

Last week, the Fourth Circuit Court of Appeals kicked off the holiday by giving thanks for the power to prevent parties from reaping the benefits of fraud perpetrated against the federal courts. The Fourth Circuit decided in Barlow v. Colgate Palmolive Co., et al., No. 13-1839, No. 13-1840, 2014 U.S. App. LEXIS 22324 (4th Cir. Nov. 25, 2014) that the reach of federal jurisdiction extends far enough to snatch a case back from state court if a plaintiff secured remand based on fraudulent misrepresentations to the federal court.  The court also clarified that attorneys engaging in such ...

After many years of battle, Whirlpool Corporation finds itself celebrating a favorable jury verdict in a class action lawsuit. A few weeks ago, a jury had the rare occasion to find for Whirlpool in Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front-Loading Washer Prods. Liability Litg.), No. 08-65000 (N.D. Ohio), one of several cases in which the company faces product liability allegations associated with mold growth in front-loading washing machines. The harsh reality for corporate defendants is that once a class is certified, the majority of cases settle because the ...