CL&P Blog

Zimmerman article on appeals courts hearing class actions

Adam S. Zimmerman of Loyola of Los Angeles has written The Class Appeal, 89 University of Chicago Law Review (Forthcoming 2022). Here's the abstract:

For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable claimants in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.

This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions, while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have power do this. Relying on the All Writs Act, appellate courts long ago created ad-hoc procedures modeled after class actions to respond to systemic government harm.

This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions and explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed, but to protect courts’ core function in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without classwide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies.

WSJ: Amazon eliminates arbitration clause after facing 75,000 arbitration demands by Echo users

Here. Excerpt:

*  * With no announcement, the company recently changed its terms of service to allow customers to file lawsuits. Already, it faces at least three proposed class actions, including one brought May 18 alleging the company’s Alexa-powered Echo devices recorded people without permission.

The retail giant made the change after plaintiffs’ lawyers flooded Amazon with more than 75,000 individual arbitration demands on behalf of Echo users. That move triggered a bill for tens of millions of dollars in filing fees, according to lawyers involved, payable by Amazon under its own policies.

 

 

SCOTUS takes FCRA class action case

The issue as framed by the petitioner, TransUnion, is whether "either Article III or Federal Rule of Civil Procedure 23 permits a damages class action when the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered." More at SCOTUSblog.

Choi & Spier on the economics of class action waivers

Albert H. Choi of Michigan and Kathryn E. Spier of Harvard have written The Economics of Class Action Waivers. Here is the abstract:

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and three recent US Supreme Court cases, Concepcion, Italian Colors, and Epic Systems, have endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it is not. We examine conditions in which class action waivers can compromise product safety, facilitate anticompetitive conduct, and support harmful employment practices. Our analysis delivers a more nuanced, policy-based critique of the recent US Supreme Court cases, highlights several new unresolved issues, and identifies future challenges for legal scholarship.

Update on the claims process in the Equifax data breach litigation

Yesterday, Tara Siegel Bernard of the New York Times published a story providing an update on the claims process in the Equifax data breach litigation. The deadline to file initial claims was January 22, 2020.

She reports that as of December 1, 2019, “just more than 10 percent of the consumers affected had filed for some type of compensation.” More than 4.1 million people opted for the cash payment, which would work out to less than $7 per person (the settlement included $31 million to pay those claims). About 3.3 million people opted for credit monitoring services.

The full story is available here.

Seventh Circuit: Student Loan Borrowers Can Sue Servicers Under State Consumer Protection Laws

Yesterday, a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion in Nelson v. Great Lakes Educational Loan Services, Inc. in which it concluded that the federal Higher Education Act (HEA) does not preempt state law claims against student loan servicers. The case involves a student loan borrower who brought a putative class action against the loan servicer alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, and constructive fraud and negligent misrepresentation under Illinois common law. The district court granted the defendant’s motion to dismiss concluding that these state law claims were expressly preempted by the HEA. On appeal, the Seventh Circuit reversed, writing, in part:

The district court’s ruling was overly broad. When a loan servicer holds itself out to a borrower as having experts who work for her, tells her that she does not need to look elsewhere for advice, and tells her that its experts know what options are in her best interest, those statements, when untrue, cannot be treated by courts as mere failures to disclose information. Those are affirmative misrepresentations, not failures to disclose. Great Lakes chose to make them. A borrower who reasonably relied on them to her detriment is not barred by § 1098g from bringing state‐law consumer protection and tort claims against the loan servicer. Tort law has long recognized the difference between mere failures to disclose information and affirmative deceptions. And as we explain below, the Ninth Circuit decision the district court relied upon, Chae v. SLM Corp., 593 F.3d 936 (9th Cir. 2010), does not apply to claims of affirmative misrepresentations in counseling borrowers in distress.

The full opinion is available here.

(Disclosure: U.S. PIRG Education Fund, along with the Center for Responsible Lending, filed an amicus brief in support of the plaintiff-appellant.)

Imre Szalai Study Finds 78 Fortune 100 Companies Use Class Action Waivers in Consumer Agreements

Imre S. Szalai of Loyola of New Orleans has written The Prevalence of Consumer Arbitration Agreements by America’s Top Companies, 52 U.C. Davis L. Rev. Online 233 (2019). Here is the abstract: 

This article present the results of a study that examines the use of arbitration agreements by the top 100 Fortune Magazine-ranked largest domestic companies in the United States. The market power of these companies, which collectively represent more that two-thirds of the U.S. GDP, have enabled them to impose arbitration agreements upon their customers and have removed themselves from the traditional judicial system when disputes arise with their customers.

This study focuses on two main issues: 1) How many of these top companies have used arbitration agreements in connection with customer transactions since 2010; and 2) Of those companies, how many use arbitration agreements containing a “class waiver” requiring customers to waive their right to proceed collectively or as part of a class. The study then concludes with some observations about the prevalence of consumer arbitration agreements among America’s top companies.

Gilles & Friedman paper on Qui Tam as a model for enforcement of group rights

Myriam E. Gilles of Cardozo and Gary B. Friedman of the Friedman Law Group have written The New Qui Tam: A Model for the Enforcement of Group Rights in a Hostile Era. Here is the abstract:

The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions – particularly class-banning arbitration clauses. As these critical enforcement methods recede, will alternative methods of prosecuting claims arise? How might they work? Are they politically and fiscally sustainable? We focus here on a promising approach just now coming into view: qui tam legislation authorizing private citizens to bring representative claims on behalf of consumers, workers, and others. Progressive advocates have recently begun working with legislators in a handful of states to provide a qui tam mechanism for enforcing state statutory rights. The form these new laws might take remains uncertain and their enforceability is sure to be hotly contested by corporate interests and others. This article examines the legal and policy challenges that will face “new qui tam” legislation, and considers arguments for and against enlarging the role of citizens in prosecuting claims – an inquiry that requires us to determine the legitimacy and limits of the private attorney general model in its starkest form.

Industry Lawyer Concedes Arbitration Clauses Suppress Claims and Reduce Payments to Consumers

by Jeff Sovern

Industry lawyer Thomas B. Hudson of Hudson Cook has authored Arbitration Agreements: Not Always Good All the Time for AutoDealer Today, in which he writes:

An arbitration agreement is the dealer’s first and best line of defense against class-action lawsuits. If you think that isn’t reason enough, have a word with the many South Carolina dealers sued in class actions over allegedly improper doc fees who were able to have the class actions dismissed, with individual plaintiffs left with claims in arbitration. Dealers who did not use arbitration agreements paid millions of dollars to their customers and the customers’ class action lawyers.

* * *

Lawyers for consumers, when confronted with documents signed by their clients and containing arbitration agreements, tend to lose interest in pursuing the consumer’s claim. Perhaps these lawyers are unfamiliar with how to handle an arbitration proceeding, or perhaps they are of the view that they can’t get a decent award of attorneys’ fees from an arbitrator.

Whatever the reason, consumers have historically not initiated arbitration proceedings with much frequency. * * *

He also advocates:

In order to make sure arbitration agreements between dealers and consumers will be enforced by courts, and even by those courts that bend over backward to rule for consumers, lawyers for dealers who draft the agreements make them as consumer-friendly as possible. One of the consumer-friendly provisions that you’ll often see is one by which the business undertakes to pay some or all of the consumer’s costs in arbitration. 

Piché Paper on the Effectiveness of Class Action e-Notices

Catherine Piché of the University of Montreal has written The Coming Revolution in Class Action Notices: Reaching the Universe of Claimants Through Technologies. Here's the abstract:

This paper will address whether a correlation may be drawn between the types and modalities of notices sent to class action members and the rate of compensation of these members, based on data collected in 854 class action court files in Quebec superior court over a twenty year period (1997-2017). Notices are essential to fair procedure in all class action regimes, but it is difficult to know whether these notices have reached their intended addressee in such a way as to make them aware of the case and its potential distributions, and eventually allow for this distribution to be completed. If a collective approach to compensation is favored, class notices should aim to compensate at least 50% of the members. My hypothesis is that technologies will help doing just that. In this paper, I ask whether this hypothesis is supported by the data, and which forms of technological notices are actually most effective at reaching and compensating members. I argue that we have come to a revolution in class action noticing, a digital revolution. In traditional forms of notice, reduced cost has almost always meant reduced probability of achieving actual notice. By contrast, properly designed e-notices are potentially transformative because they serve to lower the cost of notice while increasing reach rates in time and space. With the support of empirical data, I demonstrate that cases making use of technological noticing serve to compensate members more efficaciously than those who rely upon traditional noticing (mail, newspaper notices), with a distribution (or take-up) rate of 69%.