Class Action

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In 1993, the U.S. Supreme Court established the standard for determining the admissibility of expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579. That decision immediately gave rise to a pressing question: How is Daubert pronounced? With a French pronunciation, i.e. “dough bear,” or a more American pronunciation, i.e., “dow (rhymes with cow) burt” or “daw burt”? (Garner’s Dictionary of Legal Usage says the last pronunciation is correct.)

Recently, courts have wrestled with another question: To what extent does the Daubert framework apply to expert testimony offered to support motions for class certification?  Last month, the Sixth Circuit weighed in and joined the side of those who hold that district courts must apply a Daubert analysis when challenged expert testimony is relevant to class certification in In re Nissan N. Am., Inc. Litig., No. 23-5950 (6th Cir. Nov. 22, 2024).Continue Reading To Daubert or not to Daubert — That Is the Question: Sixth Circuit Weighs in on Expert Standards at Class Certification

State Seeks to Derail NCAA NIL Settlement

The State of South Dakota has unleashed a two-pronged attack attempting to undo, or at least modify, the NCAA’s settlement of antitrust claims regarding its name, image, and likeness rules. In September, shortly after the $2.78 billion settlement was announced, South Dakota sued the NCAA on behalf of the University of South Dakota and South Dakota State University in a separate case, complaining that the settlement would result in non-power-conference schools losing approximately $960 million in NCAA distributions to help pay for the deal. 

Then, two weeks ago, just after the federal judge hearing the main antitrust case granted preliminary approval of the settlement, the state filed a motion in that case arguing that the set­tle­ment notice provided to the various state Attorneys General did not satisfy the requirements of the Class Action Fairness Act. This is an unusual challenge to a class-action settlement, so we thought we would take a further look at what South Dakota is arguing.Continue Reading South Dakota a Giant (Settlement) Killer?

Sixth Circuit Affirms Dismissal of Claims Against Bob Baffert and Churchill Downs

Two weeks ago, Mystik Dan won the Kentucky Derby by a nose over Sierra Leone and Forever Young. If you didn’t watch the race and haven’t seen the finishing photo, you should check it out here and here. 

The 2021 Kentucky Derby also had a notable finish, albeit for less auspicious reasons. That year, Medina Spirit was the first horse to cross the finish line at the Kentucky Derby. Nine months later, however, the Kentucky Horse Racing Commission disqualified Medina Spirt because the horse tested positive for betamethasone in a post-race drug test. As a result, Maundaloun was declared the winner. Nineteen individual plaintiffs who would have won their wagers on the new order of finish brought a putative class action against Bob Baffert and Bob Baffert Racing, Inc. (who trained Medina Spirit) and Churchill Downs, Inc. (which owns the racetrack where the Derby is run). Just in time for Triple Crown season, the Sixth Circuit affirmed the dismissal of the plaintiffs’ claims for reasons that provide insight beyond horse racing. Mattera v. Baffert, No. 23-5750 (6th Cir. May 2, 2024).Continue Reading And They’re Not Off . . .

For Halloween, rather than discuss any of the various litigation over candy (e.g., the litigation over Skittles or “slack fill” in packages), we are going to travel back to 1984 to look at what a mishap with a sheep costume says about how consumer expectations can affect liability from Ferlito v. Johnson & Johnson, 983 F.2d 1066 (6th Cir. 1992) (Table). Continue Reading Little Bo Peep’s Fiery Sheep

Over the past year, there have been a growing number of lawsuits, including class actions, filed against website operators in various states — including California, Florida, Illinois, and Pennsylvania — for violations of state wiretapping laws or the Video Privacy Protection Act of 1988 (VPPA).

At a high level, these wiretapping lawsuits claim that the website intercepts website user and visitor information via session replay technology and other tracking technology in violation of certain state wiretapping laws. The states in which…

Continue Reading Increasing Litigation Related to Website Technology and Data Sharing

Did you know that there was a class-action lawsuit after Super Bowl XLV?  The game was played at Cowboys Stadium (now known as AT&T Stadium) in Dallas, Texas, between the Pittsburgh Steelers and Green Bay Packers. The litigation arose out of a temporary-seating debacle: the full complement of temporary seats was not installed in time, resulting in some ticketholders being left without seats and others being relocated. There was also another group of ticketholders who complained about a restricted view from their seats even though they did not receive the lower, restricted-view ticket price. On the field, the Packers defeated the Steelers 31-25. In the courtroom, the plaintiffs’ bid for class certification suffered the same fate as the Steelers. A look at the Fifth Circuit’s opinion in Ibe v. Jones, 836 F.3d 516 (5th Cir. 2016), provides some valuable insights.Continue Reading Super Bowl Class Action

A recent Sixth Circuit opinion reiterated that, for purposes of evaluating diversity jurisdiction, the citizenship of a limited liability company is determined by the citizenship of its members. E.g., Akno 1010 Mkt. Street St. Louis Missouri LLC v. Pourtaghi, 43 F.4th 624, 626 (6th Cir. 2022). An LLC’s state of organization and principal place of business are irrelevant to that analysis because 28 U.S.C. § 1332(c) refers specifically to “corporation[s],” while LLCs, like partnerships, are treated as unincorporated associations. Id.; Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir. 2009) (“The general rule is that all unincorporated entities — of which a limited liability company is one — have the citizenship of each partner or member.”). But a different jurisdictional test applies when a plaintiff’s complaint falls within the Class Action Fairness Act (CAFA).
Continue Reading LLCs Are Treated Like Corporations When Determining Jurisdiction Under CAFA

There is a public perception that class actions result in multimillion-dollar liability for the defendants. The recent settlement of Woodard v. Labrada, a case in which TV’s Dr. Mehmet Oz was originally named as a defendant, shows that is not always the case. The suit alleged misrepresentations regarding certain weight-loss supplements manufactured by Labrada Bodybuilding Nutrition, Inc., which the plaintiffs claimed Dr. Oz received compensation to promote on his TV show. After six years of litigation, Labrada — the only remaining defendant (the plaintiffs dismissed the allegations against Dr. Oz and other media defendants) — agreed to a settlement that requires the payment of just $625,000.
Continue Reading Dr. Oz Suit Shows Not All Class Actions Result in Millions of Dollars

On Monday, the U.S. Supreme Court, in Morgan v. Sundance, Inc., overturned the arbitration-specific waiver rules in nine circuits that had held a finding of prejudice was essential to determining whether a party had waived its right to arbitrate. Instead, courts should apply “ordinary procedural rules” — such as the federal law that waiver is the intentional relinquishment or abandonment of a known right (without a prejudice requirement) — to determine whether an arbitration agreement is enforceable.
Continue Reading No More Special Arbitration-Waiver Rules