NJ Supreme Court Disapproves Class Certification In Landmark TCCWNA Case Today, the New Jersey Supreme Court drove a stake into the many class actions alleging claims under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”).  That law provides for $100 in damages whenever an “aggrieved consumer” demonstrates that a contract or other document contains provisions that violate any “clearly established legal right.”  The Supreme...… Continue Reading
Third Circuit Steps Back from the Brink of a Circuit Split over “Ascertainability” Yesterday, a panel of the Third Circuit Court of Appeals took another step back from a circuit split over the extent to which aspiring class plaintiffs must show a “reliable and administratively feasible means of determining whether putative class members fall within the class definition,” and one judge called for scrapping that requirement altogether. In...… Continue Reading
Understanding “Ascertainability” in Class Actions Now that the Second Circuit Has Said “No” To It. On Friday, the Second Circuit Court of Appeals’ decision in In re Petrobras Securities refused to adopt what it called a “’heightened’ two-part ascertainability test in class action cases.  The Second Circuit agreed that class action plaintiffs must show that ‘the class is defined with reference to objective criteria,’ but did not agree that plaintiffs...… Continue Reading
“Give the Money to One Percenters, Not to Non-Profits,” 11 State Attorneys General Argue On July 5, bipartisan Attorneys General from 11 states filed an astonishing brief in the Third Circuit Court of Appeals, asking that court to reject the proposed class action settlement in In re Google Inc. Cookie Placement that would give settlement monies to non-profits rather than class members. The plaintiffs in Google Cookie allege that...… Continue Reading
California Choice of Law Provision Defeats Claim Under NJ Consumer Protection Law On Monday, a California federal judge enforced the California choice-of-law clause in Facebook’s online terms of use, and on that basis refused to consider the claims of a New Jersey resident that aspects of those terms of use violated New Jersey’s consumer contract disclosure law, the Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”).  The decision … Continue Reading
New Jersey’s TCCWNA:  New Year, Same Uncertainty In 2016, many retailers found themselves on the wrong end of class actions brought under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”). The suits allege that these retailers’ website terms of service either contained provisions that violated some “clearly established” New Jersey or federal law, or else stated that violative terms might not … Continue Reading
The Ninth Circuit’s Briseno Decision Is Not As Bad As It Looks for Consumer Class Action Defendants The Ninth Circuit’s decision this week in Briseno v. ConAgra Foods, Inc., No. 15-55727, refused to engraft an “administrative feasibility” requirement to Federal Rule of Civil Procedure 23’s prerequisites for certifying a class action.  What this means, basically, is that in Ninth Circuit courts, a named plaintiff seeking class certification need not “demonstrate an administratively … Continue Reading