/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/200101.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 1, 2020, Vol. 22, No. 1 Headlines [*] Major Court Rulings in Class Action Lawsuits - 2019 ********* [*] Major Court Rulings in Class Action Lawsuits - 2019 ------------------------------------------------------- The Class Action Reporter is pleased to provide our subscribers the following list of court decisions in class action lawsuits that we have identified as major rulings in 2019. This list is the product of and copyrighted by Beard Group, Inc., and no reproduction or further use of this list is permitted without the prior written consent of Beard Group, Inc. APPLE INC., Petitioner v. ROBERT PEPPER, et al., No. 17–204 (U.S.) Apple Inc. sells iPhone applications, or apps, directly to iPhone owners through its App Store -- the only place where iPhone owners may lawfully buy apps. Most of those apps are created by independent developers under contracts with Apple. Apple charges the developers a $99 annual membership fee, allows them to set the retail price of the apps, and charges a 30% commission on every app sale. Four iPhone owners sued Apple, alleging that the company has unlawfully monopolized the aftermarket for iPhone apps. Apple moved to dismiss, arguing that the iPhone owners could not sue because they were not direct purchasers from Apple under Illinois Brick Co. v. Illinois, 431 U.S. 720. The District Court agreed, but the Ninth Circuit reversed, concluding that the iPhone owners were direct purchasers because they purchased apps directly from Apple. The Supreme Court affirmed the Ninth Circuit, holding that under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization. Applying Section 4 of the Clayton Act, the High Court said it has consistently stated that "the immediate buyers from the alleged antitrust violators" may maintain a suit against the antitrust violators, but has ruled that indirect purchasers who are two or more steps removed from the violator in a distribution chain may not sue. Unlike the consumer in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. The absence of an intermediary in the distribution chain between Apple and the consumer is dispositive. Justice Kavanaugh delivered the opinion of the Court, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan, joined. Justice Gorsuch filed a dissenting opinion, in which Chief Justice Roberts, and Justices Thomas and Alito joined. Apple is represented by: Daniel M. Wall, Esq. Christopher S. Yates, Esq. Sadik Huseny, Esq. Aaron T. Chiu, Esq. LATHAM & WATKINS LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111-6538 Tel: (415) 391-0600 Fax: (415) 395-8095 Email: dan.wall@lw.com chris.yates@lw.com sadik.huseny@lw.com aaron.chiu@lw.com Solicitor General Noel J. Francisco for the United States as amicus curiae, by special leave of the Court, supporting the petitioner. Plaintiff Pepper is represented by: Mark C. Rifkin, Esq. Matthew M. Guiney, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Tel: (212) 545-4600 Fax: (212) 686-0114 Email: rifkin@whafh.com guiney@whafh.com - and - Rachele R. Byrd, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Symphony Towers 750 B Street, Suite 1820 San Diego, CA 92101 Tel: (619) 239-4599 Email: Byrd@whafh.com - and - David C. Frederick, Esq. Aaron M. Panner, Esq. Gregory G. Rapawy, Esq. Benjamin S. Softness, Esq. KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. Sumner Square 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 Tel: (202) 326-7900 Email: dfrederick@kellogghansen.com apanner@kellogghansen.com grapawy@kellogghansen.com bsoftness@kellogghansen.com HOME DEPOT U.S.A., INC., Petitioner v. GEORGE W. JACKSON, No. 17–1471 (U.S.) Citibank, N. A., filed a debt-collection action in state court, alleging that George Jackson was liable for charges incurred on a Home Depot credit card. Jackson responded by filing third-party class-action claims against Home Depot U.S.A., Inc., and Carolina Water Systems, Inc., alleging that they had engaged in unlawful referral sales and deceptive and unfair trade practices under state law. Home Depot filed a notice to remove the case from state to federal court, but Jackson moved to remand, arguing that controlling precedent barred removal by a third-party counterclaim defendant. The District Court granted Jackson's motion, and the Fourth Circuit affirmed, holding that neither the general removal provision, 28 U.S.C. Section 1441(a), nor the removal provision in the Class Action Fairness Act of 2005, Section 1453(b), allowed Home Depot to remove the class-action claims filed against it. The Supreme Court affirmed the Fourth Circuit's ruling. The High Court held that Section 1441(a) does not permit removal by a third-party counterclaim defendant. Home Depot emphasizes that it is a "defendant" to a "claim," but Section 1441(a) refers to "civil action[s]," not "claims." And because the action as defined by the plaintiff's complaint is the "civil action . . . of which the district cour[t]" must have "original jurisdiction," "the defendant" to that action is the defendant to the complaint, not a party named in a counterclaim. The Supreme Court further held that Section 1453(b) does not permit removal by a third-party counterclaim defendant. Home Depot contends that even if Section 1441(a) does not permit removal, Section 1453(b) does because it permits removal by "any defendant" to a "class action." The High Court, however, pointed out that the two clauses in Section 1453(b) that employ the term "any defendant" simply clarify that certain limitations on removal that might otherwise apply do not limit removal under that provision. Neither clause -- nor anything else in the statute -- alters Section 1441(a)'s limitation on who can remove, suggesting that Congress intended to leave that limit in place. In addition, Section 1453(b) and Section 1441(a) both rely on the procedures for removal in Section 1446, which also employs the term "defendant." Interpreting that term to have different meanings in different sections would render the removal provisions incoherent. Justice Thomas delivered the opinion of the Court, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan, joined. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts, and Justices Gorsuch and Kavanaugh, joined. Home Depot is represented by: William P. Barnette, Esq. Kacy D. Goebel, Esq. HOME DEPOT U.S.A., INC. - and - Sarah E. Harrington, Esq. Thomas C. Goldstein, Esq. Erica Oleszczuk Evans, Esq. GOLDSTEIN & RUSSELL, P.C. 7475 Wisconsin Avenue, Suite 850 Bethesda, MD 20814 Tel: (202) 362-0636 Fax: (866) 574-2033 Email: sharrington@goldsteinrussell.com tgoldstein@goldsteinrussell.com eoevans@goldsteinrussell.com Plaintiff Jackson is represented by: Brian Warwick, Esq. Janet Varnell, Esq. David Lietz, Esq. VARNELL & WARWICK, P.A. P.O. Box 1870 Lady Lake, FL 32158 Tel: 352-753-8600 Fax: 352-504-3301 - and - F. Paul Bland, Esq. Karla Gilbride, Esq. Leah M. Nicholls, Esq. Ellen Noble, Esq. PUBLIC JUSTICE, P.C. 1620 L Street NW, Suite 630 Washington, DC 20036 Tel: 202-797-8600 Fax: 202-232-7203 - and - Jennifer Bennett, Esq. PUBLIC JUSTICE, P.C. 475 14th Street, Suite 610 Oakland, CA 94612 Tel: 510-622-8150 - and - Rashad Blossom, Esq. BLOSSOM LAW PLLC 225 E Worthington Ave, #200 Charlotte, NC 28203 Tel: 704-271-9078 - and - Daniel K. Bryson, Esq. John Hunter Bryson, Esq. WHITFIELD BRYSON & MASON LLP 900 W. Morgan Street Raleigh, NC 27603 Tel: 919-600-5000 Email: dan@wbmllp.com hunter@wbmllp.com JAZMINA GERARD et al., Plaintiffs and Appellants, v. ORANGE COAST MEMORIAL MEDICAL CENTER, Defendant and Respondent, No. S241655, (Cal.). The issue before the Supreme Court of California is whether or not meal period waivers obtained in conformity an applicable wage order, that wage order violated a provision of the Labor Code generally prohibiting second meal period waivers for employees working shifts longer than 12 hours. The Court of Appeal initially reversed the trial court, holding that although the meal period waivers were obtained in conformity with the applicable wage order, that wage order violated a provision of the Labor Code generally prohibiting second meal period waivers for employees working shifts longer than 12 hours. Plaintiffs Jazmina Gerard, Kristiane McElroy, and Jeffrey Carl are health care workers who were formerly employed by defendant Orange Coast Memorial Medical Center. The Plaintiffs usually worked 12-hour shifts and sometimes worked shifts longer than 12 hours. A Hospital policy allowed health care employees who worked shifts longer than 10 hours caring for patients to voluntarily waive one of their two meal periods, even if their shifts lasted more than 12 hours. The Plaintiffs alleged they signed second meal period waivers and occasionally worked shifts longer than 12 hours without being provided a second meal period. The Plaintiffs contended that these second meal period waivers violated the Labor Code and they sought penalties, unpaid wages, and injunctive relief for those and other violations. Wage and hour claims, including claims regarding the availability and timing of meal breaks, are governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders, adopted by the IWC. In June 1993, at the urging of the health care industry, the IWC amended Wage Order 5-1989 to add subdivision 11(C), which permitted health care employees who worked shifts longer than eight hours to waive a second meal period. In 1999, the Legislature enacted Assembly Bill No. 60 (AB 60), known as the Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999. The legislation repealed five wage orders, including Wage Order No. 5 covering the health care industry, and required the IWC to review its wage orders and readopt orders restoring daily overtime. AB 60 also added section 512, which for the first time set out statutory meal period requirements. The state Supreme Court said the Plaintiffs' argument that section 517's language that IWC wage orders adopted by July 1, 2000, must be consistent with this chapter -- that is, consistent with the provisions of AB 60 -- is unpersuasive. The Court said this reading of the statutory provision ignores the broad sweep of the phrase notwithstanding any other provision of law. The Court held that SB 88's amendment of former section 516 worked a change in the law. Although SB 88 was an urgency statute, there is no indication that the reason for the urgency was to prevent section 11(D) from going into effect. The restriction on the IWC's authority with respect to meal period waivers was only one part of SB 88; the bill also addressed, among other things, the exemption of certain computer software professionals and a certain class of certified nurse midwives, nurse anesthetists, and nurse practitioners from overtime pay. Justice Liu penned the decision. Chief Justice Cantil- Sakauye, and Justices Corrigan, Cuellar, Kruger, and Siggins, concurred. Plaintiffs are represented by: Mark Yablonovich, Esq. LAW OFFICES OF MARK YABLONOVICH 1875 Century Park East, Suite 700 Los Angeles, CA 90067 Tel: 310-286-0246 Fax: 310-407-5391 Email: mark@yablonovichlaw.com - and - Glenn A. Danas, Esq. ROBINS KAPLAN LLP 2049 Century Park East, Suite 3400 Los Angeles, CA 90067 Tel: 310-552-0130 Fax: 310-229-5800 Email: gdanas@robinskaplan.com - and - Robert K. Friedl, Esq. Ryan H. Wu, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Tel: 310-556-4811 Fax: 310-943-0396 Email: robert.friedl@capstonelawyers.com Ryan.Wu@CapstoneLawyers.com Respondent is represented by: Richard J. Simmons, Esq. Derek R. Havel, Esq. Daniel J. McQueen, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON 333 South Hope Street, Forty-Third Floor Los Angeles, CA 90071 Tel: 213-620-1780 Fax: 213-620-1398 Email: rsimmons@sheppardmullin.com dhavel@smrh.com dmcqueen@sheppardmullin.com - and - Robert J. Stumpf, Jr., Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON Four Embarcadero Center, Seventeenth Floor San Francisco, CA 94111 Tel: 415-434-9100 Fax: 415-434-3947 Email: rstumpf@sheppardmullin.com - and - Karin Dougan Vogel, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON 501 West Broadway, 19th Floor San Diego, CA 92101 Tel: 619-338-6500 Fax: 619-234-3815 Email: rstumpf@sheppardmullin.com California Hospital Association as Amicus Curiae on behalf of Defendant and Respondent, is represented by: Jeffrey A. Berman, Esq. James M. Harris, Esq. Kiran A. Seldon, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Tel: 310-277-7200 Fax: 310-201-5219 Email: jberman@seyfarth.com jmharris@seyfarth.com kseldon@seyfarth.com LAMPS PLUS, INC., et al., Petitioners, v. FRANK VARELA, No. 17-988 (U.S.) In 2016, a hacker tricked an employee of Lamps Plus, Inc., into disclosing tax information of about 1,300 company employees. After a fraudulent federal income tax return was filed in the name of Frank Varela, a Lamps Plus employee, Varela filed a putative class action against Lamps Plus in Federal District Court on behalf of employees whose information had been compromised. Relying on the arbitration agreement in Varela's employment contract, Lamps Plus sought to compel arbitration -- on an individual rather than a class-wide basis -- and to dismiss the suit. The District Court rejected the individual arbitration request, but authorized class arbitration and dismissed Varela's claims. Lamps Plus appealed, arguing that the District Court erred by compelling class arbitration, but the Ninth Circuit affirmed. The Supreme Court reversed and remanded. The Court had held in Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U. S. 662, that a court may not compel class-wide arbitration when an agreement is silent on the availability of arbitration. The Ninth Circuit ruled that Stolt-Nielsen was not controlling because the agreement in this case was ambiguous rather than silent on the issue of class arbitration. The Supreme Court has jurisdiction. An order that both compels arbitration and dismisses the underlying claims qualifies as "a final decision with respect to an arbitration" within the meaning of 9 U.S.C. Section 16(a)(3), the jurisdictional provision on which Lamps Plus relies. Varela attempts to distinguish Randolph on the ground that the appeal here was taken by the party who had already secured the relief it requested, i.e., Lamps Plus had already obtained an order dismissing the claim and compelling arbitration. Lamps Plus, however, did not secure the relief it requested, since it sought individual rather than class arbitration. The shift from individual to class arbitration is a "fundamental" change, Stolt-Nielsen, 559 U.S., at 686, that "sacrifices the principal advantage of arbitration" and "greatly increases risks to defendants," AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 348, 350. Avoiding these consequences gives Lamps Plus the "necessary personal stake" to appeal. The Supreme Court further held that under the Federal Arbitration Act, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration. The Ninth Circuit's contrary conclusion was based on the state law contra proferentem doctrine, which counsels that contractual ambiguities should be construed against the drafter. That default rule is based on public policy considerations and seeks ends other than the intent of the parties. The Court ruled that that approach is flatly inconsistent with "the foundational FAA principle that arbitration is a matter of consent." Varela claims that the rule is nondiscriminatory and gives equal treatment to arbitration agreements and other contracts alike, but an equal treatment principle cannot save from preemption general rules "that target arbitration either by name or by more subtle methods, such as by 'interfer[ing] with fundamental attributes of arbitration.'" This conclusion, the Court said, is consistent with its precedents holding that the FAA provides the default rule for resolving certain ambiguities in arbitration agreements. Chief Justice Roberts, delivered the opinion of the Court, in which Justices Thomas, Alito, Gorsuch, and Kavanaugh joined. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer and Sotomayor joined. Justice Breyer and Justice Sotomayor filed dissenting opinions. Justice Kagan filed a dissenting opinion, in which Justices Ginsburg and Breyer joined, and in which Justice Sotomayor joined as to Part II. Lamps Plus is represented by: Andrew J. Pincus, Esq. Archis A. Parasharami, Esq. Daniel E. Jones, Esq. MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006-1101 Tel: 202-263-3000 Email: apincus@mayerbrown.com aparasharami@mayerbrown.com djones@mayerbrown.com - and - Jeffry A. Miller, Esq. Brittany B. Sutton, Esq. LEWIS BRISBOIS 701 B Street, Suite 1900 San Diego, CA 92101 Tel: 619-233-1006 Fax: 619-233-8627 Email: Jeff.Miller@lewisbrisbois.com Brittany.Sutton@lewisbrisbois.com - and - Eric Y. Kizirian, Esq. Michael K. Grimaldi, Esq. 633 West 5th Street, Suite 4000 Los Angeles, CA 90071 Tel: 213-250-1800 Fax: 213-250-7900 Email: Eric.Kizirian@lewisbrisbois.com Michael.Grimaldi@lewisbrisbois.com - and - Donald M. Falk, Esq. MAYER BROWN LLP Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306-2112 Tel: 650-331-2000 Email: dfalk@mayerbrown.com Frank Varela, Respondent, is represented by: Michele M. Vercoski, Esq. Richard D. McCune, Esq. MCCUNE WRIGHT AREVALO, LLP 3281 E. Guasti Road, Suite 100 Ontario, CA 91761 Tel: 909-345-8110 - and - Scott L. Nelson, Esq. Allison M. Zieve, Esq. PUBLIC CITIZEN LITIGATION GROUP Washington, DC MERCK SHARP & DOHME CORP. v. ALBRECHT et al., No. 17–290 (U.S.). Merck Sharp & Dohme Corp. manufactures Fosamax, a drug that treats and prevents osteoporosis in postmenopausal women. Albrecht, et al., are more than 500 individuals who took Fosamax and suffered atypical femoral fractures between 1999 and 2010. They sued Merck seeking tort damages on the ground that state law imposed upon Merck a legal duty to warn respondents and their doctors about the risk of atypical femoral fractures associated with using Fosamax. Merck argued that respondents' state law failure-to-warn claims should be dismissed as pre-empted by federal law. Merck conceded that the FDA regulations would have permitted Merck to try to change the label to add a warning before 2010, but Merck asserted that the FDA would have rejected that attempt. In particular, Merck claimed that the FDA's rejection of Merck's 2008 attempt to warn of a risk of "stress fractures" showed that the FDA would also have rejected any attempt by Merck to warn of the risk of atypical femoral fractures associated with the drug. The District Court agreed with Merck's pre-emption argument and granted summary judgment to Merck, but the Third Circuit vacated and remanded. The Court of Appeals recognized that its pre-emption analysis was controlled by this Court's decision in Wyeth v. Levine, 555 U. S. 555, which held that a state-law failure-to -warn claim is pre-empted where there is "clear evidence" that the FDA would not have approved a change to the label. The Court of Appeals, however, suggested that the "clear evidence" standard had led to varying lower court applications and that it would be helpful for this Court to "clarif[y] or buil[d] out the doctrine." The Supreme Court vacated and remanded. The Court held that "clear evidence" is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug's label to include that warning. In a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning. These conclusions flow from the High Court's precedents on impossibility pre-emption and the statutory and regulatory scheme that the Court reviewed in Wyeth. In particular, the Court has refused to find clear evidence of impossibility where the laws of one sovereign permit an activity that the laws of the other sovereign restrict or even prohibit. And as explained in Wyeth, FDA regulations permit drug manufacturers to change a label to "reflect newly acquired information" if the changes "add or strengthen a . . . warning" for which there is "evidence of a causal association." The only agency actions that can determine the answer to the pre-emption question are agency actions taken pursuant to the FDA's congressionally delegated authority. The Supremacy Clause grants "supreme" status only to the "the Laws of the United States." And pre-emption takes place "'only when and if [the agency] is acting within the scope of its congressionally delegated authority.'" The question of agency disapproval is primarily one of law for a judge to decide. The question often involves the use of legal skills to determine whether agency disapproval fits facts that are not in dispute. Moreover, judges, rather than lay juries, are better equipped to evaluate the nature and scope of an agency's determination, and are better suited to understand and interpret agency decisions in light of the governing statutory and regulatory context. While contested brute facts will sometimes prove relevant to a court's legal determination about the meaning and effect of an agency decision, such factual questions are subsumed within an already tightly circumscribed legal analysis and do not warrant submission alone or together with the larger pre-emption question to a jury. Justice Breyer delivered the opinion of the Court, in which Justices Thomas, Ginsburg, Sotomayor, Kagan, and Gorsuch joined. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment, in which Chief Justice Roberts and Justice Kavanaugh joined. Merck Sharp & Dohme Corp. is represented by: Shay Dvoretzky, Esq. Yaakov M. Roth, Esq. Jeffrey R. Johnson, Esq. JONES DAY 51 Louisiana Avenue, N.W. Washington, DC 20001-2113 Tel: 202-879-3939 Fax: 202-626-1700 Email: sdvoretzky@jonesday.com yroth@jonesday.com jeffreyjohnson@jonesday.com - and - Stephanie Parker, Esq. JONES DAY 1420 Peachtree Street, N.E., Suite 800 Atlanta, GA 30309-3053 Tel: 404-521-3939 Fax: 404-581-8330 Email: separker@jonesday.com Malcolm L. Stewart, Esq., for the United States as amicus curiae, by special leave of the Court, supporting the petitioner. Albrecht, et al., respondents, are represented by: David C. Frederick, Esq. Brendan J. Crimmins, Esq. Jeremy S.B. Newman, Esq. KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. Sumner Square 1615 M Street, N.W., Suite 400 Washington, DC 20036 Tel: 202-326-7900 Email: dfrederick@kellogghansen.com bcrimmins@kellogghansen.com jnewman@kellogghansen.com NUTRACEUTICAL CORPORATION, Petitioner v. TROY LAMBERT, No. 17–1094 (U.S.) Troy Lambert alleges that Nutraceutical Corporation's marketing of a dietary supplement ran afoul of California consumer-protection law. On February 20, 2015, the District Court ordered the class decertified. Pursuant to Federal Rule of Civil Procedure 23(f), Lambert had 14 days from that point to ask the Court of Appeals for permission to appeal the order. Instead, he filed a motion for reconsideration, which the District Court denied. Lambert petitioned the Court of Appeals for permission to appeal the decertification order. Nutraceutical objected that Lambert's petition was untimely because it was filed far more than 14 days from the entry of the decertification order. The Ninth Circuit held, however, that Rule 23(f)'s deadline should be tolled under the circumstances because Lambert had "acted diligently." On the merits, the court reversed the decertification order. The Supreme Court held that Rule 23(f) is not subject to equitable tolling. Rule 23(f) is properly classified as a non-jurisdictional claim-processing rule, but that does not render it malleable in every respect. Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether its text leaves room for such flexibility. The Court held that the governing rules speak directly to the issue of Rule 23(f)'s flexibility and make clear that its deadline is not subject to equitable tolling. While Federal Rule of Appellate Procedure 2 authorizes a court of appeals for good cause to "suspend any provision . . . in a particular case," it does so with a caveat: "except as otherwise provided in Rule 26(b)." Rule 26(b), which generally authorizes extensions of time, in turn includes the carveout that a court of appeals "may not extend the time to file . . . a petition for permission to appeal" -- the precise type of filing at issue here. The Rules thus express a clear intent to compel rigorous enforcement of Rule 23(f)'s deadline, even where good cause for equitable tolling might otherwise exist. Precedent confirms this understanding, the Court said, citing Carlisle, 517 U. S. 416, and United States v. Robinson, 361 U. S. 220. The Supreme Court added that Lambert's counterarguments do not withstand scrutiny. Lambert argues that Rule 26(b)'s prohibition on extending the time to file a petition for permission to appeal should be understood to foreclose only formal extensions granted ex ante and to leave courts free to excuse late filings on equitable grounds after the fact. But the Court has already rejected an indistinguishable argument concerning Federal Rule of Criminal Procedure 45(b) in Robinson, and Lambert offers no sound basis for reading Rule 26(b) differently. Further, the 1998 Advisory Committee Notes to Rule 23(f) speak to a court of appeals' discretion to decide whether a particular certification decision warrants review in an interlocutory posture, not to its determination whether a petition is timely. Finally, Lambert notes that every Court of Appeals to have considered the question would accept a Rule 23(f) petition filed within 14 days of the resolution of a motion for reconsideration that was itself filed within 14 days of the original order. Although his own reconsideration motion was not filed until after the initial 14 days had run, he cites the lower courts' handling of such cases as evidence that Rule 23(f) is amenable to tolling. However, a timely motion for reconsideration affects the antecedent issue of when the 14-day limit begins to run, not the availability of tolling. The Supreme Court reversed the judgment of the Court of Appeals and remanded the case so the Court of Appeals can address other preserved arguments about whether Lambert's Rule 23(f) petition was timely even without resort to tolling. Justice Sotomayor delivered the opinion for a unanimous Court. Nutraceutical is represented by: John C. Hueston, Esq. Steven N. Feldman, Esq. Joseph A. Reiter, Esq. HUESTON HENNIGAN LLP 523 West 6th St., Suite 400 Los Angeles, CA 90014 Tel: 213-788-4340 Email: jhueston@hueston.com sfeldman@hueston.com jreiter@hueston.com Troy Lambert is represented by: Jonathan A. Herstoff, Esq. HAUG PARTNERS LLP 745 Fifth Avenue, 10th Floor New York, NY 10151 Tel: 212-588-0800 Email: jherstoff@haugpartners.com - and - Gregory S. Weston, Esq. Andrew Hamilton, Esq. The Weston Firm 1405 Morena Blvd., Ste. 201 San Diego, CA 92110 Tel: 619-798-2006 Fax: 619-343-2789 - and - Ronald A. Marron, Esq. Michael Houchin, Esq. THE LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Tel: 619-696-9006 THEODORE H. FRANK, et al., Petitioners, v. PALOMA GAOS, individually and on behalf of all others similarly situated, et al., Case No. 17-961 (U.S.). Three named plaintiffs allege Google violated the Stored Communications Act. The parties negotiated a settlement agreement that would require Google to include certain disclosures on some of its webpages and would distribute more than $5 million to cy pres recipients, more than $2 million to class counsel, and no money to absent class members. The Supreme Court granted certiorari to review whether those cy pres settlements satisfy the requirement that class settlements be "fair, reasonable, and adequate." Because there remain substantial questions about whether any of the named plaintiffs has standing to sue in light of the Court's decision in Spokeo, Inc. v. Robins, 578 U. S. ___ (2016), the Supreme Court vacated the judgment of the Ninth Circuit and remand for further proceedings. In Spokeo, the Court held that "Article III standing requires a concrete injury even in the context of a statutory violation." The Court rejected the premise, relied on in the decision then under review and in Edwards, that "a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Google notified the Ninth Circuit of the Court's opinion in Spokeo. A divided panel of the Ninth Circuit affirmed, without addressing Spokeo. The Court granted certiorari to decide whether a class action settlement that provides a cy pres award but no direct relief to class members satisfies the requirement that a settlement binding class members be "fair, reasonable, and adequate." In briefing on the merits before the High Court, the Solicitor General filed a brief as amicus curiae supporting neither party. He urged the Court to vacate and remand the case for the lower courts to address standing. The Government argued there is a substantial open question about whether any named plaintiff in the class action actually had standing in the District Court. Because Google withdrew its standing challenge after the Court dismissed Edwards as improvidently granted, neither the District Court nor the Ninth Circuit ever opined on whether any named plaintiff sufficiently alleged standing in the operative complaint. "We have an obligation to assure ourselves of litigants' standing under Article III." That obligation extends to court approval of proposed class action settlements. In ordinary non-class litigation, parties are free to settle their disputes on their own terms, and plaintiffs may voluntarily dismiss their claims without a court order. By contrast, in a class action, the "claims, issues, or defenses of a certified class -- or a class proposed to be certified for purposes of settlement -- may be settled, voluntarily dismissed, or compromised only with the court's approval." A court is powerless to approve a proposed class settlement if it lacks jurisdiction over the dispute, and federal courts lack jurisdiction if no named plaintiff has standing. When the District Court ruled on Google's second motion to dismiss, it relied on Edwards to hold that Gaos had standing to assert a claim under the SCA. The Court's decision in Spokeo abrogated the ruling in Edwards that the violation of a statutory right automatically satisfies the injury-in-fact requirement whenever a statute authorizes a person to sue to vindicate that right. Since that time, no court in this case has analyzed whether any named plaintiff has alleged SCA violations that are sufficiently concrete and particularized to support standing. After oral argument, the Court ordered supplemental briefing from the parties and Solicitor General to address that question. After reviewing the supplemental briefs, the Court concludes that the case should be remanded for the lower courts to address the plaintiffs' standing in light of Spokeo. The supplemental briefs filed in response to the Court's order raise a wide variety of legal and factual issues not addressed in the merits briefing before the Court or at oral argument. The Court held it is "a court of review, not of first view." Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. The Ninth Circuit judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. Petitioners are represented by: Theodore H. Frank, Esq. Melissa Holyoak, Esq. Anna St. John, Esq. COMPETITIVE ENTERPRISE INSTITUTE 1310 L Street NW, 7th Floor Washington, DC 20005 Tel: 202-331-1010 Fax: 202-331-0640 Respondents Paloma Gaos, et al., are represented by: Kassra P. Nassiri, Esq. NASSIRI & JUNG LLP 1700 Montgomery Street, Suite 207 San Francisco, CA 94111 Tel: (415) 762-3100 - and - Jeffrey A. Lamken, Esq. Michael G. Pattillo, Jr., Esq. James A. Barta, Esq. William J. Cooper, Esq. MOLOLAMKEN LLP 600 New Hampshire Avenue, N.W. Washington, DC 20037 Tel: 202-556-2000 Fax: 202-556-2001 Email: jlamken@mololamken.com mpattillo@mololamken.com jbarta@mololamken.com - and - Jordan A. Rice, Esq. MOLOLAMKEN LLP 300 North LaSalle Street Chicago, IL 60654 Tel: 312-450-6700 Fax: 312-450-6701 Email: jrice@mololamken.com - and - Michael Aschenbrener, Esq. KAMBERLAW, LLC 401 Center Street, Suite 111 Healdsburg, CA 95448 Tel: 212-920-3072 Google LLC is represented by: Randall W. Edwards, Esq. O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Tel: 415-984-8700 Email: redwards@omm.com - and - Jed W. Glickstein, Esq. Samantha C. Booth, Esq. MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Tel: 312-782-0600 Email: jglickstein@mayerbrown.com sbooth@mayerbrown.com - and - Donald M. Falk, Esq. Edward D. Johnson, Esq. MAYER BROWN LLP 101 Second Street, Suite 375 San Francisco, CA 94105-3670 Tel: 415-874-4230 Email: dfalk@mayerbrown.com wjohnson@mayerbrown.com - and - Brian D. Netter, Esq. Daniel E. Jones, Esq. MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006-1101 Tel: 202-263-3000 Email: bnetter@mayerbrown.com djones@mayerbrown.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2020. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***