For over 40 years, putative class members have escaped some of the curbs against late-filed lawsuits that apply to normal cases. Last week, the United States Supreme Court brought back some of those curbs, threatening to reduce the number of spin-off cases that often result from class actions. Lawsuits under the Truth in Lending Act are directly affected. Continue Reading SCOTUS Resolves Dispute Over Class-Action Timing, TILA Cases Affected

Last year, the U.S. Supreme Court answered an important constitutional question: Can Congress authorize a lawsuit in which the plaintiff suffered no financial injury? The court’s disappointing answer (“it depends”) has perplexed courts across the nation. That confusion has spread to an area of vital interest to the real estate industry, the timely recording of satisfactions of mortgages. Continue Reading Federal Judges Spar Over Mortgage-Satisfaction Lawsuit

Last week, in a much anticipated decision, the U.S. Supreme Court addressed whether a consumer can sue over violations of statutory rights without herself having suffered an actual, concrete harm. The Supreme Court said “no,” but gave little detail about which injuries are concrete enough to pass constitutional muster. That lingering uncertainty is likely to help at least some companies defeat class certification. Continue Reading Supreme Court Bolsters Existing Weapon Against Class Certification

Five years ago, the U.S. Supreme Court seemed to reject the use of statistical proof in class actions, dismissing the evidence as “a novel project.” But, last week, the high court appeared to reverse course. Its new decision, Tyson Foods, Inc. v. Bouaphakeo, is thoroughly enigmatic and contradictory. It will no doubt spawn endless legal battles, and the real estate industry will have to monitor how lower courts struggle to decipher it. Continue Reading Statistical Evidence Lives Again in Class Actions

On January 15, 2015, the United States Supreme Court agreed to address whether an appellate court has jurisdiction to review an order denying class certification after the plaintiff voluntarily dismissed his or her claims with prejudice. Continue Reading Supreme Court Agrees to Review Propriety of Plaintiffs’ Questionable Maneuver Around FRCP 23(f)


To avoid protracted class-action litigation in federal court, defendants sometimes make Rule 68 offers of judgment to the named plaintiff to moot the case or controversy. In Genesis HealthCare Corp. v. Symczyk, 569 U.S. __ (2013), SCOTUS reserved the question of whether an unaccepted offer to satisfy a named plaintiff’s individual claim renders a class-action lawsuit moot. In Campbell-Ewald v. Gomez, Justice Ginsburg, writing for the majority, answered that question with a resounding “no.” Continue Reading Unaccepted Settlement Offers: The Force is Not With You

The Supreme Court continues to have a lot to say about class-action jurisprudence. On December 14, 2015, the Supreme Court offered another missive on class-arbitration waivers and affirmed its support of the Federal Arbitration Act (FAA). Though the decision concerned waivers appearing in a consumer contract for satellite services, DirecTV, Inc. v. Imburgia offers insight to anyone seeking to enforce a consumer contract containing a class-arbitration waiver. Continue Reading SCOTUS: Yes, California, There is Pre-Emption