Last night I attended the celebration of the career of my greatest mentor, Sheila Birnbaum, whom the legal media decades ago aptly dubbed “The Queen of Torts.” It was a fabulous event graciously hosted at the Campbell Bar in NYC’s Grand Central Terminal by her firm, Dechert, with scores of people in attendance—lawyers and clients with whom she worked, lawyers she battled against, judges, professors, and her family. I was grateful to be there, too.

The night was filled with reminiscences of what we each have learned from Sheila, and how she has helped shape not only the law of products liability and mass torts, but also the people who practice in this area. I was struck by how it is this latter impact—on people—that is probably her most important and enduring legacy. Sure, Sheila has achieved tremendous victories on behalf of her clients, but long after people forget that she won a Supreme Court decision that put due process limits on the size of punitive damages awards, they will remember what she taught people about how to be a great lawyer/advocate. 

I was fortunate to work beside Sheila for more than 20 years. She taught me many things about the law itself, and how to approach it creatively, focusing first on what your client ultimately needs in order to move past a dispute, and then building the syllogisms and supporting facts and case law to get there in the litigation. (No one paid our Skadden rates for problems that had easy answers. We often had to build an argument like you would build a wall, one brick at a time–and sometimes making your own bricks.)

But more importantly, Sheila is practical. Regardless of the industry, she studies the client’s business and tries to figure out why they need what they say they need. On occasion, she can even explain to the client why what they think they need as a formal legal matter is not necessary to achieve a result that makes business sense for them. Sheila is all about streamlining solutions to real world problems. And one of the first questions out of her mouth when pitching to represent a company in a new matter is simply: “What does a successful resolution of this matter look like in your view? I.e. What must you achieve in this litigation to advance your business objectives?”

Who needs McKinsey when you have Sheila?

Sheila recognizes that complex mass torts are interdisciplinary legal problems and the importance of not being the smartest person in the room, but rather the one with the most insightful questions. When she represented a company that could not produce America’s stockpile of flu vaccine one fall due to contamination at its foreign manufacturing plant, she understood that her team had to include experts on criminal law (for Congressional testimony and government investigations), securities law (for the inevitable class actions), product liability law, and lawyer/scientists from the firm’s intellectual property group who could understand the science and build a factual defense to the case. In addition, increasingly in mass torts, the path to a final binding resolution lies in bankruptcy rather than a class action settlement, and Sheila has worked with so many bankruptcy lawyers in the past few years that she could almost become one herself. Mass torts, Sheila knows all too well, is indeed an interdisciplinary discipline. 

Sheila has always understood that defending a company is very personal. It is trendy for filmmakers and the plaintiff’s bar to paint corporations as nameless, faceless, soulless villains. But they are not. They are made up of everyday people who are proud of their products and their reputation, and want people’s experience with those products to be fulfilling. 

When Sheila meets new clients, she invests in getting to know the people at the company—not just the general counsel, but the other people on the legal team who will be essential to getting things done in the case. She asks about their families, about their careers, and the internal pressures they are under to deliver answers to their business clients. And she lets them know that she and her team have their backs. When the in-house lawyer receives a question with an impossible deadline, she knows she can call Sheila’s mobile and her team will get the answer and deliver for that in-house lawyer. As you can imagine, this engenders great loyalty among Sheila’s clients. So, too, does Sheila’s attention to those lawyers’ career advancement long after the litigation is over. 

Sheila also respects her adversaries; she doesn’t lie or play trivial games. And she has had tremendous success in negotiating favorable mass tort settlements by studying and understanding the plaintiff’s lawyers (their business objectives and their clients’ needs) as thoroughly as she does her own clients. She knows about her adversaries’ families and their interests. Sheila knows that even with your adversary, lawyering ultimately is personal. 

Perhaps one of the best lessons I learned from Sheila is that authenticity matters. Sheila graduated law school the year I was born, when there were only a handful of women in law school and the only areas deemed acceptable for them to practice in were family law and trusts and estates. But this tough Bronx Jewish lawyer wanted to litigate, and chose the emerging field of products liability at a time when the concept of strict liability was just being developed. 

As a litigator in this area, Sheila stood out like a sore thumb. I was privileged to attend a number of new business pitches with Sheila. Typically we would enter the room as a gaggle of patrician men were exiting, giving hearty handshakes to their interviewers. Sheila knew you can’t out-WASP a WASP. She entered the room as who she is, hugging her new acquaintances and asking about their families. She didn’t talk about last night’s game or the coming season’s lineup for any sports team, but she found meaningful personal ground on which to engage each interviewer, and she would remember it (and ask them about it) for years. When we left the room, it was hugs all around, as if she were everyone’s Bubbe. And as she would leave the room, she often reminded them that, “If you hire us, we’re going to take care of you, and I’ll be with you to field any questions as you present to your board.”

Sheila is an inspiration for each of us non-traditional lawyers to stop trying to be a cookie-cutter lawyer, but to be authentically ourselves—especially if we do not otherwise fit within the preconceived mold. 

As of last night, Sheila has moved on from being a lawyer-advocate. But this octogenarian is not retiring! (She was never retiring–or shy, either.) Instead, she is moving on from Dechert to become a mediator for complex litigation matters. To my mind, as a consummate student of people, this is a role Sheila has been preparing for her whole life. As with all of her prior roles, I expect her to be wildly successful. Have fun solving those puzzles, boss! And thanks for a lifetime of lessons, which I have taken to heart. 

Getting the band back together: Vijay Bondada, Tom Claps, Nafiz Cekirge, Paul LaFata, Sheila Birnbaum, Bert Wolf, Me, and Mark Cheffo.
John W. Campbell, a Jazz Age financier, leased from the Vanderbilts a 3,500 sq. ft. space in Grand Central, which he turned into his private office in 1923, using many thirteenth-century Florentine-inspired architectural details. It has soaring 25-foot handpainted ceilings, a stone fireplace with Campbell’s safe inside, century-old leaded glass windows, and original millwork. Campbell installed a pipe organ and a piano, and at night used the office as a reception hall, regularly hosting 50-60 friends to hear private recitals by famous musicians. Although the organ and piano are long gone, Dechert had a small jazz combo playing in the balcony for much of the party.
Katherine Armstrong and me.
The entire space was cheek to jowl with lawyers!
Dechert used the balcony–where the jazz combo had been playing–as a “stage” from which a number of Sheila’s colleagues delivered tributes to her career, which has spanned more than 50 years. They also played an excellent video compilation of colleagues sharing candid reflections and anecdotes. It was a heartwarming night.
Per usual, Sheila had the last word, and won the night.
Preparing to toast to Sheila’s new mediator gig.

Michelle Ligouri and Christopher Flurry over at Best in Class Blog have an interesting post about an issues class certification in the District of Columbia that raises a number of thorny questions: Harris v. Medical Transportation Mgmt., Inc., 77 F.4th 746 (D.C. Cir. 2023). In Harris, the trial court certified an issues class on a variety of issues. The defendant appealed to the DC Circuit, which held that: (1) the predominance requirement of 23(b)(3) applies to issues class certifications, and the trial court needed to determine whether common issues predominated within the issues certified; (2) the trial court should directly address how creating an issues class is superior to other ways of handling the litigation, and (3) in certifying an issues class, the trial court should determine what form of notice is the best practicable notice under the circumstances.

As Ligouri and Flurry note, Bryan Cave has filed with the US Supreme Court an interesting certiorari petition on behalf of the defendant, urging that the Court’s decision in WalMart v. Dukes requires, as a prerequisite for satisfying the commonality requirement of Rule 23(a)(2), significant proof that a uniform policy or practice applied to all class members. Public Citizen, on behalf of the plaintiff, filed a waiver of the right to respond to the cert petition, which is now scheduled for conference on February 16, 2024.

The Harris case is one to keep an eye on, as it could lead to important guidance on issues classes.

So I have been deficient. One of my goals is to show you the incredible range of entertainment that is available in St. Louis, and I had promised a periodic post about shows and concerts I have seen here. But my last such post was in October. This is a catch-up post–and for those of you who are only interested in legal topics, you can skip this one. No law here.

In October, I went to one of my favorite STL venues to see St. Louis trumpeter Kasimu Taylor at Joe’s Cafe. It’s a tiny BYOB club filled with St. Louis memorabilia. The performances are very intimate. Kasimu’s band that night included Gregory Porter’s bassist, Jahmal Nichols, who is FANTASTIC! I also saw a concert by three bandleaders on the same stage at Jazz St. Louis: bassist John Clayton, trumpeter Benny Benack III, and drummer Gregory Hutchinson. Incredible. And only in St. Louis! They don’t travel together; they spent the week as clinicians for music students in St. Louis and performed a couple of nights together. I also cheered on Saint Louis City SC as the soccer club advanced to the playoffs in its inaugural year. The energy in that new stadium was AMAZING, even as sheets of rain intensified the autumn chill.

I also had the good fortune of having my house featured in an article in the Wall Street Journal. St. Louis was the fourth-largest city in America at the turn of the 20th Century, and it is filled with grand houses of that era. I was lucky enough to snag one when I moved here from New York.

November saw a number of concerts. Rene Marie at Jazz St. Louis, Ann Hampton Callaway at City Winery, Jeremy Davenport at Jazz St. Louis, as well as the Bill Charlap Trio and the Wycliffe Gordon Quintet. Some friends also took me to see the national touring company of Tina at the Fox Theater, a musical that told the story of St. Louisan Tina Turner. And we hosted at my home a six-course wine dinner for 32 (twice!) that was written up in the Riverfront Times.

December was a busy month, with concerts by St. Louis Jazz diva Denise Thimes, St. Louis trumpeter Jim Manley, singer Nicole Henry, cabaret singer Jonathan Karrant, and a performance of Duke Ellington’s Nutcracker Suite by the Jazz St. Louis Big Band. But the highlight of December was a concert at The Factory by jazz prodigy Samara Joy, who sounds like a perfect blend of Sara Vaughn and Ella Fitzgerald. And she is only 24!

After a trip to Chicago to ring in the new year, I returned to St. Louis to hear trumpeter Marquis Hill and attend the release party for the album Foreverland by trumpeter Keyon Harrold. I also saw comic John Mulaney (Skadden partner Chip Mulaney’s boy), who sold out the Fox Theater (4,400 seats) for 2 nights. And I saw the national touring company perform Mrs. Doubtfire, also at the Fox.

You’re now caught up. And I’m exhausted.

Guitarist Eric Slaughter, bassist Jahmal Nichols, and trumpeter Kasimu Taylor at Joe’s Cafe.

Ann Hampton Callaway, Jazz STL CEO Victor Goines, and me at City Winery.
Cabaret singer Jonathan Karrant, me, and St.. Louis pianist Adaron “Pops” Jackson at the Blue Strawberry.
The “Iconic Hotels” dinner prepared by Place & Time at my house.
Keyon Harrold performing at his Foreverland release party at Jazz St. Louis.
Each one of the 22,500 seats was sold (although the fans were on their feet) at CITYPARK on October 29 as the St. Louis City SC played their first playoff game–a major accomplishment in their inaugural season.

Today’s blog post presents the curious case of Thompson v. Genesco, Inc., 2024 WL 81187 (E.D. Mo. Jan. 8, 2024) (Clark, C.J.), in which a federal district court sua sponte remanded a Federal Telephone Consumer Protection Act class action to a St. Louis City circuit court for lack of standing—but not for the reason you might think.

Typically, the questions on the tip of class action litigators’ tongues are whether a class claim for mere statutory damages satisfies the injury-in-fact requirement of standing articulated in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), and, if not, whether the same claim may be maintained in state court if the state does not follow federal standing principles. See, e.g., the amicus brief of the U.S. Chamber of Commerce in Fausett v. Walgreen Co., No. 129783 (Illinois) (arguing in a currently-pending appeal the importance of a concrete injury requirement in a BIPA class action).

The specter of unremovable zombie class actions for statutory damages only is one that haunts defense lawyers like me in the middle of the night. Fortunately Missouri (where I live) clearly requires a state court plaintiff to have a concrete injury to bring a claim. See, e.g., Schweich v. Nixon, 408 S.W.3d 769, (Mo. en banc 2013) (“‘A justiciable controversy exists where [1] the plaintiff has a legally protectable interest at stake, [2] a substantial controversy exists between parties with genuinely adverse interests, and [3] that controversy is ripe for judicial determination.’”) (citation omitted).

But the Thompson case does not raise these injury-in-fact issues, which are currently the subject of much discussion in the class action bar. Instead, Thompson focuses on a different element of standing: traceability. And the failure to meet this “causation” requirement also should make the claim fail in any state court, meaning that Thompson does not seem to portend litigating unremovable state court class actions. In short, Thompson identifies a fundamental pleading failure on a causation issue that should be the death knell for the class claim in federal or state court.

The plaintiff filed the Thompson TCPA class action in state court, and it was promptly removed by the defendant, which also moved for judgment on the pleadings. Chief Judge Stephen R. Clark sua sponte raised the issue of Article III standing, directing the parties to brief the issue. Surprisingly, both defendant and plaintiff took the positions that the federal court had jurisdiction and that plaintiff had pled standing. Chief Judge Clark disagreed.

In analyzing the issue, he began by setting forth the three requirements of federal standing: (1) “a cognizable injury,” (2) that is “‘fairly traceable to the defendant’s unlawful conduct,’” and (3) “is likely to be redressed by the requested relief.” 2024 WL 81187, at *2 (citations omitted). Chief Judge Clark then analyzed the much-discussed requirement of a concrete and particularized injury. The parties clearly had briefed this issue extensively. Judge Clark agreed with the parties that receiving unwanted texts constituted a sufficiently concrete and particularized injury, observing that “[b]oth the TCPA and the common law tort of intrusion upon seclusion address the same kind of harm: the disruption of one’s peace and privacy.” Id. at *3 (relying upon Drazen v. Pinto, 74 F.4th 1336, 1345 (11th Cir. 2023)). Allegations that plaintiff received “numerous annoying” texts that “intruded on [plaintiff’s] peace, privacy, and seclusion” were sufficient to plead an injury for standing purposes. Id.

The standing problem that required remand of the case lay in the “causation” inquiry inherent in the traceability requirement. This requirement is less frequently discussed in case law, presumably because it is a rather obvious hurdle to avoid. As Chief Judge Clark explained, “To satisfy the traceability prong of Article III standing, a plaintiff must show that there is a “‘causal connection between the injury and the conduct complained of.’” Id. at *4 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992)). The court held that the complaint did not plead that the plaintiff’s injury—receiving the annoying texts—was caused by the unlawful conduct pled.

Under the TCPA, it is unlawful to text people who are on a federal “Do Not Call” list. 47 C.F.R. § 64.1200(c). It is also unlawful for a telemarketer to fail to maintain its own internal, company-specific “Do Not Call” list. 47 C.F.R. § 64.1200(d). The problem that Chief Judge Clark put his finger on was that although plaintiff repeatedly maintained that he was suing under the provision that related to a company’s failure to maintain its own internal list (64.1200(d)), he never pled that he attempted to put himself on such a list. Rather, plaintiff pled that he had put himself on the federal list, but steadfastly refused to allege a cause of action under the section that applies to that conduct (64.1200(c)). Thus, the court held, plaintiff lacked standing:

“But an obvious, critical link between his injury and those violations is glaringly absent: the factual allegation that Thompson actually asked to be put on that internal do not call list in the first place. Nowhere in his Amended Complaint does Thompson allege that he ever asked Genesco to place him on such a list, or simply not to contact him. In fact, Thompson does not allege any way in which he would have remotely benefitted from Genesco’s compliance with § 64.1200(d).

“. . . Therein lies the traceability problem: if Thompson cannot allege a way—any way—in which he would appear on a Genesco internal do-not-call list, then his injury cannot be traced to Genesco’s failure to maintain one. . . . Without such a ‘causal connection,’ there is no traceability, and consequently, no Article III standing to challenge Genesco’s alleged failure to maintain compliance with § 64.1200(d).”

2024 WL 81187, at *5-*6 (relying on Cordoba v. DIRECTV, LLC, 942 F.3d 1259 (11th Cir. 2019)).

Because the Amended Complaint failed the traceability requirement, the court remanded the case to state court and denied as moot the defendant’s motion for judgment on the pleadings.

The Thompson opinion suggests that:

  • Courts increasingly are focused on standing in class action cases, and you should be prepared for courts to raise standing issues sua sponte at the outset of the litigation (particularly if the case has been removed to federal court).
  • Opinions focused on “traceability” or “causation” probably do not present the same risk of an unremoveable state court class action as opinions focused on whether there is a particularized and concrete injury. For the latter type of case, the concern is that some states may lack developed case law on standing, thereby allowing a case to proceed in state court that would not be cognizable in federal court due to federal standing doctrine. But most states have strong case law requiring a plaintiff to plead causation, i.e., that their injury was caused by the allegedly unlawful conduct. Where a federal court holds that a complaint fails to plead sufficient causation to meet the traceability requirement, that decision should be subject to comity in state court; whether the problem is described as “standing” or just “causation” in state precedents, the fact remains that an absence of allegations regarding basic causation should result in a quick dismissal of the action, even in state court, whether on standing or on the merits. And if the plaintiff amends the complaint to fix this pleading problem, the case should then become removeable to federal court.
  • Lawyers sometimes debate whether to cite out-of-Circuit authority to federal district court judges and, if so, how prominently to feature it. The court in Thompson placed considerable reliance on a few decisions from the Eleventh Circuit, reinforcing my belief that where there is case law that strongly supports your position, you should cite it, regardless of which court issued the opinion.

No Standing at St. Louis Civil Courts Copyright 2016 Russell Jackson

Too often defendants with a national presence fail to assert a personal jurisdiction defense to class actions. A decision from the Eastern District of Missouri demonstrates why all defendants—even those with a national presence—should take care to consider personal jurisdiction as a first line of defense. See Jones v. Papa John’s Int’l, Inc., 2023 WL 7155562 (E.D. Mo. Oct. 31, 2023) (Clark, C.J.).

In Jones v. Papa John’s, plaintiffs brought a putative class action challenging the pizza chain’s use of “session replay code” that helps improve user experience on the company’s website by monitoring user activity. Plaintiffs claimed the tracking violated a variety of federal and state statutes protecting consumer privacy. The pizza chain moved for dismissal under Rule 12(b)(2) for lack of personal jurisdiction.

Chief Judge Clark’s opinion is a systematic guide to evaluating personal jurisdiction within the Eighth Circuit. Although the plaintiff bears the burden of establishing a prima facie case of jurisdiction when a defendant challenges personal jurisdiction at the pleading stage, she may use affidavits and exhibits, and the evidence is generally viewed in a light most favorable to the plaintiff.

Where jurisdiction is premised on state law or on federal statutes that do not expressly authorize nationwide personal jurisdiction, “‘the existence of personal jurisdiction depends on the long-arm statute of the forum state and the federal Due Process Clause.’” Id. at *2 (citation omitted).

Many state long-arm statutes extend personal jurisdiction as far as due process allows. Due process, in turn, exists ‘“‘only if the contacts between the defendant and the forum state are sufficient to establish that the defendant has purposefully availed himself of the benefits and protections of the forum state.’”” Id. (citing Johnson v. Arden,  614 F.3d 785, 794 (8th Cir. 2010). The Eighth Circuit uses five factors to determine whether a defendant’s contacts are sufficient to confer jurisdiction:

“(1) The nature and quality of the contacts with the forum state; (2) the quantity of the contacts; (3) the relationship of the cause of action to the contacts; (4) the interest of [the forum state] in providing a forum for its residents; and (5) the convenience or inconvenience of the parties.”

The first three factors are “primary factors.” The Eighth Circuit also uses an additional factor in the context of intentional torts: the “effects test” from Calder v. Jones, 465 U.S. 783 (1984) (evaluating whether the defendant’s acts were intentional, expressly aimed at the forum state, and caused harm that was suffered in—and the defendant knew would be suffered in—the forum state).

Chief Judge Clark first considered whether Papa John’s was subject to general jurisdiction in Missouri. Ordinarily, general jurisdiction exists only where the defendant is “at home,” i.e., its principal place of business or its place of incorporation. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (the exception to this rule is where a company’s forum contacts are “so substantial and of such a nature as to render the corporation at home in that State”). Chief Judge Clark distinguished pre-Daimler “substantial and continuous contacts” cases, holding that Papa John’s is not “at home” in Missouri. He also denied jurisdictional discovery on the issue because plaintiff offered only “speculation and conclusory assertions” about what such discovery would show.

Chief Judge Clark then considered specific jurisdiction, cautioning that the court “must only look to those contacts of [the defendant] that relate to Plaintiff’s claims.” 2023 WL 7155562, at *4 (relying on Bristol-Myers Squibb Co. v. Superior Ct., 582 U.S. 255, 264 (2017)). He rejected the notion that marketing and sales activity in Missouri had anything to do with the specific jurisdiction analysis. Rather, plaintiff’s claim was based on the defendant’s use of session replay code, and plaintiff failed to allege that “Papa John’s website and app are specifically tailored to Missouri consumers or that Papa John’s made special efforts to market its website and app in Missouri. Plaintiff’s threadbare allegation that Papa John’s has ‘targeted’ Missouri does not alter this fact. Nothing in the record suggests Papa John’s ‘directed’ its website and app at Missouri any more than any other state.” Id. at *7 (emphasis added).

In reaching this conclusion, the court relied on decisions like Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997) (positing a sliding scale of minimum contacts relating to Internet websites), and Johnson v. Arden, 614 F.3d 785, 796 (8th Cir. 2010) (finding Zippo “instructive”). Expressly agreeing with an opinion by Judge Stephen Limbaugh, Jr., Chief Judge Clark rejected the notion that a plaintiff may sue everywhere so long as she made her purchase on an interactive website. 2023 WL 7155562, at *6 (citing Allied Ins. Co. of Am. v. JPaulJones L.P., 491 F. Supp. 3d 472 (E.D. Mo. 2020)). Where the alleged harm “would have occurred no matter the state the Plaintiffs were in” and the conduct was not “uniquely or expressly aimed at the forum state,” there is no specific jurisdiction.

Chief Judge Clark’s opinion in Jones v. Papa John’s is an excellent roadmap for defendants—even defendants who use the Internet to conduct business nationally or internationally—to use in challenging personal jurisdiction within the Eighth Circuit in class action cases.

Ordinarily I don’t blog about decisions in cases where I or my firm represented a party. But this decision seems to have slipped through West’s fingers, so I’ll include it here with minimal commentary in case it may be of use to someone.

In this federal decision from the Western District of Missouri, the plaintiff had sued an insurer in a putative statewide class action. The plaintiff’s vehicle had been stolen, and he claimed that in addition to paying the fair market value of the stolen vehicle, the insurer also should have paid for the estimated sales tax and fees for a replacement vehicle.

Cases like these have been filed against insurers in various states. To me, Missouri seemed a particularly odd choice for such a case, since unlike most states, Missouri has a statue and regulation requiring the State to provide a credit or refund on sales tax and fees for replacement vehicles. See Mo. Rev. Stat. § 144.027.1. The insured simply obtains a certificate from the insurer and submits it to the State to receive the credit or, if submitted after having already licensed the replacement vehicle, the refund. Simply put, an insured with a total loss does not suffer a “loss” with respect to sales tax and licensing fees on the replacement vehicle because the State pays it.

Regardless, plaintiff pled a breach of contract class action, claiming the policy required the insurer to pay sales tax and fees on replacement vehicles. The court disagreed, granting the motion to dismiss without even having to get to the details of Missouri’s unique statutory reimbursement scheme:

“The Policy provides comprehensive coverage for a ‘loss’ to a ‘covered vehicle.’ (Policy, p. 19). The Policy defines ‘loss’ in relevant part as ‘total . . . theft of a covered vehicle.’ (Id.). The definition of ‘covered vehicle’ does not include a replacement car. (See id. at pp. 5, 18-19). . . .

* * *

“The Policy is unambiguous. Under the plain terms of the Policy’s coverage provisions, Plaintiff is not entitled to replacement costs, including those for sales tax and fees. The limits section does not expand coverage; it merely sets the maximum amount of liability. Even if the limits section did expand coverage, ‘actual cash value’ is unambiguous under Missouri law. In cases involving vehicle loss, ‘actual cash value’ is the difference between the fair market value of the property just before and after the loss. Plaintiff does not dispute that [the insurer] accurately calculated his stolen vehicle’s fair market value. Therefore, he is without recourse.”

Wystan Ackerman has a post about an interesting class action situation: If you succeed in knocking out the named plaintiff in a putative class action because his claim was not timely, can a new plaintiff with a timely claim intervene in that suit to preserve the putative class’s statute of limitations period from the time of the suit’s filing? Or must he file a new suit, effectively shortening the class period?

Wystan analyzes Grainger v. Ottowa County, 2024 WL 64093 (6th Cir. Jan. 5, 2024), in which the court affirmed the trial court’s denial of intervention as of right, as well as permissive intervention.

See his post over at Class Actions Insider: Can a Class Member Intervene After Class Certification Is Denied? Sixth Circuit Says No. | Class Actions Insider

Increasingly companies are investing in environmental sustainability, reducing their greenhouse gas emissions, making their production facilities and distribution systems more energy efficient, and otherwise conserving vital resources like water. Sometimes companies purchase “credits” to offset things like greenhouse gas emissions. And often they work with private organizations that evaluate a company’s efforts and issue a certification based on criteria the organization has developed itself.

In light of growing global calls to take actions to combat climate change, few would argue that these are bad developments. But increasingly the plaintiffs’ bar is using statements about environmental sustainability efforts as a basis for consumer fraud class actions.

They say no good deed goes unpunished. And in this particular area, “they” appear to be right.

A recent example is Dorris v. Danone Waters of America, 2024 WL 112843 (S.D.N.Y. Jan. 10, 2024). In Dorris, the defendant made bottled water whose label included a certification from an independent third party (The Carbon Trust) that the product was “carbon neutral.” Consumers from California and Massachusetts filed a class action for alleged violations of state consumer protection statutes, breaches of express and implied warranties, unjust enrichment, and fraud, alleging that they understood the term “carbon neutral” to mean that “the Product’s manufacturing did not produce CO2 or otherwise cause pollution.”

Despite the fact that the label accurately reflected The Carbon Trust’s certification, the court refused to dismiss the consumer protection claims, reasoning:

“A reasonable consumer may plausibly understand ‘carbon neutral,’ a term whose meaning varies even within its own industry, to mean ‘zero carbon emissions.’ Or such consumer could understand it to carry Defendant’s offsetting definition. Or even some third meaning. It is most appropriate for the jury, not this Court, to determine.

* * *

“’Carbon neutral’ is an ambiguous term, and evidence shows that consumers are confused by it. . . . Accordingly, the Court concludes that at this stage it cannot determine as a matter of law that a reasonable consumer could not be confused or mislead by the ‘carbon neutral’ representation.”

2024 WL 112843 at *6-*7.

Decisions like Dorris illustrate just how difficult it is for a company to speak about its environmental sustainability efforts without creating litigation risk for itself. One cannot even be assured that including a third party’s certification or symbol will be understood by a court to include the definitions and criteria the certifier spells out on its website.

Obviously, it would be impossible to include a dissertation on carbon emissions and offsets on a bottle of water—as it would on most products. Many would argue that it is not unreasonable to expect consumers with questions about a third-party certification to go to the website listed on a label to investigate further. (This is particularly true where the representation is not about the product itself—its flavor, or contents, or ingredients.)

Companies should carefully weigh the litigation risks of choosing to include representations about environmental sustainability on their products. Where they elect to include such statements, they should consider the following:

  • Accuracy and precision are key to risk avoidance. If “carbon neutrality” has been achieved by buying offsets—rather than wholly eliminating CO2 emissions—consider saying so, even if that is explained in the third-party certifier’s criteria. And if more explanation is necessary, direct the consumer to a website that provides it.
  • As much as possible, avoid absolutisms. To describe something as “all” this or “100% free” of that is a tantalizing invitation to a lawyer to find a trace amount that can prove you wrong. Is an absolutist statement really that much more compelling than a strong comparative statement that talks about a “more than x% reduction” that is evidence-based and allows for some margin of error?
  • Avoid terms that are vague or ambiguous. Law 360 recently reported on a complaint filed against a national retailer whose products state they are “100% ethically sourced.” What does that mean, exactly? A national consumer protection group filed a class action, claiming that instances of labor, human rights, and sexual abuses that have occurred in the supply chain make that statement false, and that consumers have relied on the “ethically sourced” statement to pay a higher price for the end product.

Remember that the name of the game for creative plaintiffs’ counsel is being able to survive a motion to dismiss so as to require discovery, experts, motion practice, and possibly trial. That means that all environmental sustainability claims must be drafted with the same care as representations about the product itself—so that they may form the basis of a strong motion to dismiss. Such statements should be substantiated by evidence, precise, accurate, and readily understandable. The Federal Trade Commission has Green Guides that provide important guidance to be considered as well.

One thing is for sure: 2024 will continue to see an increase in litigation over environmental sustainability claims. Are you ready?

Last week I attended the ABA’s National Class Actions Institute in Chicago. If you weren’t there, you really missed out. The annual Institute is one of the few CLE programs with attendance that is evenly divided between the Plaintiff and Defense bars. The presenters are all at the top of their game, and their candor in discussing strategy and future trends makes this an incredibly valuable annual conclave. You should go next year.

I won’t violate the directive against quoting presenters outside the room. Please understand that this is why I’m not crediting folks as I share some of my impressions from the conference below.

My chief takeaway from the conference is that state court class actions are going to have increasing prominence in the future. The issue of standing—i.e., whether a claimant has a concrete injury that gives her a legitimate case or controversy—is being hotly litigated in federal court, and as I’ve previously addressed, the Supreme Court has clearly directed that a mere statutory violation is not enough to create standing in federal court. So the Plaintiffs’ bar appears to be looking for ways to bring such suits in state court, where case-or-controversy precedents may not exist. Look for more state court class actions where the violation of a state or federal statute triggers statutory damages, even if there is no actual injury.

This trend suggests some areas in which the defense bar needs to take action. Most states have precedents suggesting that, because their class action rule is based on the federal Rule 23, federal court decisions are persuasive authorities in those states. But do not be fooled: many states are stuck in a 1970s time warp in which there is a presumption in favor of class certification, with the notion that a class can be decertified later if the trial court deems it unmanageable. In those states, it is as if Walmart v. Dukes never happened. Their high court has not embraced a rigorous scrutiny requirement, they have lax precedents on commonality, and there is no authority dictating that where the remedy sought is damages, the plaintiff cannot have the class masquerade as one for “declaratory” relief.

How can this be? Well, since the passage of CAFA, we have largely removed class actions from state courts. No cases, no opinions to evolve. Moreover, in many states, it is as difficult to obtain an interlocutory appeal of class certification issues as it was in federal court prior to the adoption of Rule 23(f). (Few people take the time to appreciate just how important Judge Higginbotham’s little innovation has been to the development of a robust body of appellate precedent on the elements of Rule 23.)

The defense bar needs to wake up. Although state legislatures often undertake “tort reform,” many states have neglected their procedural rules relating to class actions and the precedents interpreting them, leaving them far outside current federal precedents. When defending claims in these states, lawyers need to make a detailed record on what the federal precedents actually say and the constitutional bases for these holdings. (Rigorous scrutiny, commonality, and other requirements are designed to protect the due process rights of absentees who would be bound by a class judgment.) And when serving on state bar committees and in other contexts, defense lawyers should consider how best to tether their state’s class action law to current federal precedents.

I am always reminding my students that there is more than one way to make an argument, and if you are foreclosed from one route, you can always take another. For example, how do you defend against class claims brought by people who have not suffered any real injury? Most people initially would say “challenge standing.” That certainly can work.

For example, in Ruskiewicz v. Oklahoma City University, 2023 WL 6471716 (W.D. Okla. Oct. 4, 2023), the court dismissed a data breach class action without prejudice because the plaintiff did not plead a concrete injury. Citing TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) and Spokeo, Inc. v. Robbins, 478 U.S. 330 (2016), the Western District of Oklahoma found that plaintiff “failed to allege any facts that might suggest a misuse of her personal information from [defendant’s] data breach occurred.” Rather, the complaint pled fear of a risk of future misuse of the data. That, the court held, was not enough to establish a concrete injury. The court distinguished cases in which courts had found that the data actually had been posted for sale on the “Dark Web.” Here, plaintiff pled merely the fact of the data breach. Thus, the court dismissed the complaint for lack of jurisdiction.

See also Valenzuela v. Keurig Green Mountain, Inc., 2023 WL 6609351 (N.D. Cal. Oct. 10, 2023) (dismissing without prejudice for lack of standing a class action complaint alleging that defendant’s chat feature on its website allowed a third party to effectively eavesdrop on a user’s conversation with defendant’s agent; the complaint failed to allege any information at all about the nature of the information communicated and whether it was private under the California Invasion of Privacy Act, so there was no concrete injury); Hicks v. L’Oreal U.S.A., Inc., 2023 WL 6386847 (S.D.N.Y. Sept. 30, 2023) (putative class action alleging mascara contained PFAS was dismissed for lack of standing because neither the published study identified in the complaint nor the private study performed for plaintiffs were alleged to establish that the products plaintiffs bought actually contained PFAS; this was determined to be a failure to plead a concrete injury that would confer standing on the court, although the court gave plaintiffs an opportunity to amend).

But as I mentioned above, there are other ways to cast a no-injury argument. Typicality and adequacy of representation, to name a few. A recent decision illustrates this point well.

In Gur-Ravantab v. Georgetown University, 2023 WL 6479255 (D.D.C. Oct. 5, 2023), the son of a Georgetown professor brought a class action against the school for having moved to virtual instruction because of the pandemic in 2020. He purported to represent a class of undergraduate students who paid tuition and mandatory fees for in-person, face-to-face instruction that spring semester, but got Zoom classes instead, which he pled were worth less than in-person instruction.

Plaintiff moved for class certification, and the Court denied his motion. First, it held that he was not even a member of the class because he had not actually paid any tuition or mandatory fees; instead, he received scholarships. Thus, the court concluded, “he lacks the kind of concrete stake in the outcome of the litigation necessary to be the vigorous advocate the class is entitled to.”

Second, he had a conflict of interest with other class members because his mother—a Georgetown employee—admittedly exerts “a ‘pretty major’ influence over his decisions,” making the independence of his judgment suspect.

As a result of his inability to claim damages and his questionable independence, the court concluded plaintiff was not an adequate class representative.

And it never once mentioned “standing” or Article III. So if at first you don’t succeed, try, try again.

Another important point raised by an August First Circuit decision is that you evaluate standing based on the relief sought. Often that is damages. However, it is entirely possible that someone may have suffered a past harm, but because of a change in circumstances, she has no standing to sue for prospective injunctive or declaratory relief. That was the case in Roe v. Healey, 78 F.4th 11 (1st Cir. 2023). There, parents of children with disabilities brought a putative class action against Massachusetts and its school districts seeking a declaration that the closure of in-person education during the pandemic violated the Individuals with Disabilities Education Act. Applying TransUnion, the court held that the future harm pled was too speculative to confer standing because it was not “certainly impending” and there was no “substantial risk” the harm would recur because the governor’s executive order declaring the state of emergency had expired in 2021. Accordingly, “plaintiffs’ past injury cannot support standing to seek an injunction against future harm,” and “the request for forward-looking declaratory relief [cannot] survive the absence of any live case or controversy.”