Category Archives: Class Actions

A Reply and a Challenge to Mr. Levin on Arbitration Opt Outs and Dark Patterns

On June 2, I wrote a blog post, Opaque (formerly Dark) Patterns and Arbitration Opt Outs, arguing that arbitration opt outs are really opaque patterns. On June 8, Mark J. Levin of the Ballard Spahr firm replied in a post at the Consumer Financial Monitor Blog, Arbitration opt out provisions benefit consumers, Professor Sovern. But Mr. […]

Opaque (formerly Dark) Patterns and Arbitration Opt Outs

Dark Patterns (I prefer calling them Opaque Patterns) have been drawing a lot of attention from consumer protection regulators in recent years. For those who are unclear on what they are, the FTC has defined them as “practices that trick or manipulate users into making choices they would not otherwise have made and that may […]

Sauce for the Goose on Mass Arbitration

The latest episode of Ballard Spahr’s Consumer Finance Monitor Podcast explores mass arbitration and includes as a guest arbitration champion Andrew Pincus, who argued the industry’s–and winning–position in Concepcion. As I listened to the podcast, which I recommend to those interested in consumer law, it became clear that one of Mr. Pincus’s chief complaints about […]

DC Circuit on Fail-Safe Classes and Rule 23

The D.C. Circuit today issued an opinion granting a Rule 23(f) petition and vacating a district court’s denial of class certification on the grounds that the class definition created an impermissible “fail-safe” class– i.e., a class whose membership can only be ascertained through a determination of the merits of the case. The plaintiffs, former employee […]

Casting doubt on availability of service awards, 2nd Circuit affirms massive interchange-fee settlement

Almost twenty years ago, various groups of merchants filed antitrust litigation against Visa, Mastercard, and banks that serve as payment-card issuers for those networks, tied to the “interchange fees” charged for each transaction. (In full disclosure, I worked on one of the district court cases over a decade ago. I remember close-to-nothing about the case.)  […]

Eleventh Circuit to Reconsider its Outlier View on TCPA Standing

Since its 2019 decision in Salcedo v. Hanna, which held that a Telephone Consumer Protection Act plaintiff who received only a single unwanted text message lacked standing to sue because he had not suffered an actual injury, the U.S. Court of Appeals for the Eleventh Circuit has been out of step with the other federal […]

Ninth Circuit vacates LuLaRoe class certification order on predominance question

Many of us learned about multlievel-marketing company and purveyor of women’s clothing LuLaRoe in 2021, when dueling documentaries about the company’s rapid growth and decline were released. As featured in those documentaries, the company was the subject of extensive litigation and investigations as to its relationships with its “fashion retailers” — i.e., those recruited to […]

4th Circuit: Lack of Article III standing resuscitates state-law identity theft protection claim

In its decisions in Spokeo v. Robins and TransUnion v. Ramirez, the Supreme Court held that consumers lack Article III standing to challenge violations of the Fair Credit Reporting Act absent the showing of some concrete harm beyond the publication of inaccurate credit information. On Tuesday, the Fourth Circuit confronted how those decisions interact with […]

“Pigs get fed but hogs get slaughtered”

Last month, a district court in the Sixth Circuit issued opinions in two related cases that refused to approve two class action settlements, taking class counsel to task for proposing $5,000 incentive awards to the class representatives, because the class members only received $248 each. Moeller v. The Week Publications, 1:22-cv-10666 (E.D. Mich. Dec. 15, 2022); Strano […]

Are there dangerous levels of heavy metals in your favorite chocolate bar?

Read this December 15, 2022 article in Consumer Reports, titled “Lead and Cadmium Could Be in Your Dark Chocolate,” which found, based on product testing, “dangerous heavy metals in chocolate from Hershey’s, Theo, Trader Joe’s and other popular brands.” (The article also found that other products are safer.) Two class actions have been filed against Trader Joe’s […]