GT Class Action Litigation Newsletter | Fall 2021

This GT Newsletter summarizes recent class-action decisions from across the United States.

Highlights from this issue include:

• First Circuit affirms ruling that individualized issues of consent prevent certification of TCPA “junk fax” class.

• Southern District of New York denies certification of FDCA class, finding improper “fail-safe” class.

• Third Circuit addresses standard for certification of issue classes under Rule 23(c)(4).

• Fourth Circuit vacates certification of class of 35 purchasers and remands for numerosity analysis.

• Fifth Circuit reverses remand to state court holding corporate defendant was a “primary defendant.”

• Sixth Circuit addresses retroactivity of Supreme Court TCPA decision, reversing dismissal of claim.

• Seventh Circuit applies comity abstention doctrine to remand claims removed under CAFA.

• Eighth Circuit reverses class certification finding common issues do not predominate over individual questions of causation.

• Ninth Circuit affirms order compelling arbitration, holding Uber drivers are not exempt from mandatory arbitration under Section 1 of the FAA because they are not a “class of workers engaged in foreign or interstate commerce.”

• Ninth Circuit directs more probing inquiry for approval of class action settlement where attorneys’ fees dwarf anticipated monetary payout to the class.

• D.C. Circuit holds that objectors’ appeal challenging settlement approval was premature.

D.C. Circuit

In re: Domestic Airline Travel Antitrust Litigation, Case No. 19-7058 (D.C. Cir. July 9, 2021)

Court holds that objectors’ appeal challenging settlement approval was premature.

This multidistrict litigation involves four airline defendants and over 100 million settlement class members alleging that the airlines engaged in price-fixing in violation of antitrust laws. In 2018, the district court preliminarily approved a $15 million settlement from Southwest Airlines and a $45 million settlement from American Airlines, while the litigation against Delta Air Lines and United Airlines proceeded. The preliminarily approved settlements did not specify how the funds should be allocated and distributed until the entire lawsuit concluded, intentionally leaving the question open to avoid piecemeal payments to the settling parties. Two class members objected, arguing that the settlements’ failure to specify how the funds would be distributed could lead to cy pres distribution to undisclosed recipients that would create a “slush fund” to line the plaintiffs’ lawyers’ pockets. The district court overruled the objections, approved the Southwest and American settlements and dismissed those two defendants from the case, but declined to issue a final judgment, seeing no reason to issue one and finding “just reason for delay” under Fed. R. Civ. P. 54(b) in preventing fragmented appeals regarding issues in the litigation which still includes Delta and United. The objectors appealed.

The D.C. Circuit Court dismissed the appeal for lack of appellate jurisdiction, holding there was no final appealable judgment or interlocutory order from which an appeal may be taken. Specifically, the D.C. Circuit Court held that Gelboim v. Bank of America, 574 U.S. 405 (2015) was not applicable because in that case the plaintiffs’ sole claim was dismissed, ending the entire lawsuit. By contrast, in this case, claims remained against two of the four defendants. The court also explained that Gelboim “clarify[ies] that the ordinary requirements of finality apply to appeals from multidistrict litigation,” thus undermining objectors’ arguments. Finally, the court found that that the approval order was not an appealable interlocutory order or “injunction” under 28 U.S.C. § 1292(a)(1) since the “gist of the settlement agreements was the large amount of money the defendants agreed to pay the plaintiffs.”

In re Visa Inc., Case No. 21-8005 (D.C. Cir. Oct. 1, 2021)

Court grants Visa and Mastercard’s petition to file interlocutory appeal calling class certification “questionable” and accompanied by potential “death-knell.”

Plaintiffs filed this litigation in 2011, alleging that Visa and Mastercard’s ATM fee rules violated antitrust laws and caused unlawful overcharges for access fees at ATM terminals. On Oct. 1, 2021, the D.C. Circuit granted Visa and Mastercard’s petition to file an interlocutory appeal of the district court’s order certifying three classes of plaintiffs: a class of ATM operators comprised of thousands of businesses and two consumer classes sized in the millions. The district court had held that the plaintiffs’ class-wide injury theories were “colorable” and that further inquiry as to damages was proper on the merits and not at class certification. Visa and Mastercard challenged the decision as erroneous and inconsistent with In re: Rail Freight Fuel Surcharge Antitrust Litigation (D.C. Cir. 2019) because the district court did not determine the presence of uninjured class members in assessing the predominance requirement for certification. Arguing that the classes cannot be certified because they are composed of a significant number of uninjured members, Visa and Mastercard contended that these questions must be answered at the class certification stage. They also argued that immediate appeal is proper because, if the certification decision stands, it could “sound the death-knell” for the litigation. The D.C. Circuit granted permission to appeal, agreeing that the “certification decision was, at least, ‘questionable’ and is accompanied by a potential ‘death-knell,’” citing In re: Rail Freight.

David G. Thomas, Ashley A. LeBlanc, Gregory A. Nylen, Aaron Van Nostrand, Kara E. Angeletti, Andrea N. Chidyllo, Gregory Franklin, and Brian D. Straw also contributed to this content.