Class Action

When Enough is not Enough: Frank v. Poertner - Podcast

Litigation Practice Group Podcast
Theodore H. Frank January 11, 2016

In this class action case, counsel for the plaintiffs received over 94% of the total cash recovery provided for in settlement – while the attorneys received $5,680,000 in fees, the millions of class members realized only $344,850. Objector Ted Frank’s petition for cert in the U.S. Supreme Court is pending. The petition essentially asks whether such an award is fair, reasonable and adequate under the Federal Rules of Civil Procedure. What will this case mean for the future of cy pres and class action litigation?


  • Theodore H. Frank, Senior Attorney, Director of the Center for Class Action Fairness, Competitive Enterprise Institute

DIRECTV v. Imburgia - Post-Decision SCOTUScast

SCOTUScast 12-15-15 featuring Cory Andrews
Cory L. Andrews December 17, 2015

On December 14, 2015, the Supreme Court decided DIRECTV v. Imburgia. This case involves a class action lawsuit against DIRECTV by various California customers.  Among other things, the agreement between DIRECTV and its customers contained a waiver of any right by either party to undertake class arbitration, unless “the law of your state” made such waivers unenforceable.  At that time class arbitration waivers were unenforceable under California law, but in a subsequent case the United States Supreme Court held that this California rule was preempted by the Federal Arbitration Act (FAA).  Concluding that the parties had intended to apply the rule as it existed prior to the Supreme Court decision, California trial and appellate courts refused to enforce the arbitration provision.  The question before the Supreme Court was whether the FAA permitted this outcome; namely, the application of state law that had since been preempted by the FAA.

By a vote of 6-3, the Supreme Court reversed the judgment of the California Court of Appeals and remanded the case. Justice Breyer delivered the opinion of the Court, holding that the arbitration provision must be enforced because the California appellate court’s interpretation was preempted by the FAA.

Justice Breyer’s opinion was joined by the Chief Justice and Justices Scalia, Kennedy, Alito, and Kagan. Justice Thomas filed a dissenting opinion. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.

To discuss the case, we have Cory Andrews, who is Senior Litigation Counsel at the Washington Legal Foundation.

On Again, Off Again - Class Actions and Donning and Doffing: Tysons v. Bouaphakeo - Podcast

Labor & Employment Law Practice Group Podcast
Karen Harned November 17, 2015

On November 10 the Supreme Court heard oral arguments in the case of Tyson Foods, Inc. v. Bouaphakeo. In this case, Tyson Foods was ordered to pay $5.8 million in damages in a class action lawsuit brought by employees alleging violations of various federal and state labor laws. A class of employees sued Tysons for failing to properly compensate them for time they spent donning and doffing protective clothing and equipment and washing equipment. The 8th Circuit allowed the plaintiffs to use used statistical sampling to determine damage awards. The Eighth Circuit certified the class under Rule 23 despite a wide variance among class members of time spent donning, doffing and washing equipment. The outcome of the case could have a significant impact on the rules governing class certifications and whether statistical sampling can be used in the class action context.


  • Karen Harned, Executive Director, National Federation of Independent Business Legal Center

Injury-Free Class Actions?: Spokeo v. Robins - Podcast

Federalism & Separation of Powers Practice Group Podcast
Cory L. Andrews November 04, 2015

On November 2, 2015 the United States Supreme Court heard oral arguments in Spokeo v. Robins. Spokeo, a “people search engine,” published inaccurate information about Thomas Robins, who sought to file a class action lawsuit under the Fair Credit Reporting Act. A district court found that Robins lacked standing to bring suit, since the incorrect biographical information published by Spokeo had not caused a concrete harm. In a case that could have potentially far-reaching implications for environmental, civil rights, and other class-action litigation, the Court will decide whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.


  • Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation

The Court's Case on Texting and Class Actions: Campbell-Ewald Company v. Gomez - Podcast

Litigation Practice Group Podcast
Richard A. Samp October 15, 2015

Advertising agency Campbell-Ewald sent recruitment texts to Jose Gomez on behalf of the US Navy, violating a little-known law. When Mr. Gomez sued and attempted to get class certification, Campbell-Ewald offered to pay the statutory damages in full. In this upcoming case, the Supreme Court will consider whether or not Mr. Gomez has Article III standing: is there still a controversy since an offer for complete relief has been made? The answer to this question will have serious implications for a possible class action lawsuit against Campbell-Ewald, and for class actions more broadly.


  • Richard A. Samp, Chief Counsel, Washington Legal Foundation