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Michael R. Pennington

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Mike Pennington has extensive experience in defending high stakes class actions and mass actions of all kinds, including class and mass actions involving mortgage servicing, insurance sales and claims practices, variable annuities, alleged product defects, construction defects, forced-placed insurance, due process and civil rights claims, and statutory damage class actions under the federal statutes such as the Fair Debt Collection Practices Act (FDCPA), the Real Estate Settlement Procedures Act (RESPA), the Telephone Consumer Protection Act (TCPA), and  the Fair Credit Reporting Act (FCRA). In addition to chairing Bradley’s Class Action Team, Mike is also chair of DRI’s Class Action Task Force and DRI’s Class Action Specialized Litigation Group. View articles by Mike

Standing in Data Breach Cases Likely Heading Back to the Supreme CourtData breach plaintiffs often have a very difficult time stating a concrete injury, and courts have wrestled with whether these plaintiffs can file suit in federal court. We have been watching this issue and writing about it frequently. The issue is whether plaintiffs have suffered an “injury in fact” that gives them Article III standing. The Supreme Court’s 2016 decision in Spokeo v. Robins took a narrow view of Article III standing where the plaintiffs alleged that their federal statutory rights were violated, but did not allege that they suffered any factual injury beyond the statutory violation. Spokeo gave defendants strong arguments to dismiss data-breach cases for lack of standing, but results have been mixed—perhaps because Spokeo addressed federal claims and not state-law negligence claims that are most commonly asserted after data breaches. Spokeo has proven to be a mixed blessing.

Now the issue looks to be heading back to the Supreme Court in Zappos.com, Inc. v. Stevens. That case highlights how the various circuits have taken divergent views on standing in data breach cases. The Supreme Court has not granted certiorari yet, but court watchers have singled this case out as a likely grant. We are monitoring the case closely, as any ruling from the Supreme Court in the data-breach context would have far-reaching effects on this rapidly developing area of the law.

Stay tuned.

First Circuit Restricts Class Certification of Classes Containing Uninjured PersonsIn recent years, courts have reached divergent conclusions about the circumstances in which a damages class containing uninjured persons can be certified. Although there is some room to debate what constitutes injury, it is well established that individual litigants who have not suffered any injury at all should not recover; after all, injury in fact is a bedrock element of standing, and it is well-settled that the purely procedural class action device cannot be used to expand existing substantive rights or create new substantive rights that did not otherwise exist. However, in class cases, there is considerable dispute among circuit courts as to when courts should deal with the presence of uninjured persons in the putative class, and how uninjured persons should factor into the class certification decision.

On the one hand, the Seventh and Ninth Circuits have held that the presence of some—but not “a great many”—uninjured persons in the putative class is not a bar to class certification. Instead, these courts have sanctioned the use of the post-judgment claims administration process to identify and remove uninjured class members. Neither court has yet attempted to explain exactly how many uninjured members constitute “a great many,” nor have they provided much clarity on exactly how to sort it all out at the end.

On the other hand, the majority of courts to consider the issue, including the Second, Fifth, Eighth, and D.C. Circuits, have broadly held that “no class may be certified that contains members lacking Article III standing,” and required that classes “be defined in such a way that anyone within it would have standing.” These courts have placed the burden squarely on plaintiffs to show that “they can prove, through common evidence, that all class members were in fact injured” by the alleged misconduct.

Previously, the First Circuit had attempted to carve out somewhat of a middle ground. In In re Nexium Antitrust Litigation, the court acknowledged that each absent class member must have suffered an injury in fact to recover, but nevertheless affirmed certification of a class that “probably” contained “a de minimis number of uninjured parties.” The court reasoned that defendants’ mere speculation that a few members of the class may have been uninjured was insufficient to rebut the plaintiffs’ showing that for the vast majority of class members, injury in fact could be proven by class-wide proof. The defendants also failed to show that it would be difficult to identify the handful of hypothetically uninjured persons.

Last month, however, the First Circuit came more in line with the majority view. In In re Asacol Antitrust Litigation, the court reversed certification of a consumer class that included a significant number (approximately 10 percent) of uninjured persons. In Asacol, the defendant manufacturer of a drug used to treat ulcerative colitis was accused of violating the Sherman Act by pulling Asacol from the market shortly before the drug’s patent was set to expire and replacing it with two similar, patent-protected drugs. The theory of liability was that by prematurely pulling Asacol from the market, the defendant had precluded entry of lower-cost, generic alternatives in the treatment of ulcerative colitis. The plaintiff class in Asacol comprised consumers who had purchased Asacol before it was taken off the market and who then had purchased at least one of the two replacement drugs after Asacol was taken off the market.

At the class certification stage, the evidence showed that approximately 10 percent of the putative class members would not have switched from Asacol to a generic even if the defendant had not adopted its allegedly anticompetitive strategy and generic versions of Asacol had been available. The district court concluded that persons who would not have switched to a generic did not suffer any injury from the alleged anticompetitive conduct. Yet, the district court certified a class containing those uninjured persons anyway, reasoning that the uninjured class members could be removed post-judgment during the claims administration process and that the total amount of the damages award could be reduced to account for the removal of uninjured class members.

In reversing certification, the First Circuit rejected the district court’s position that it would be appropriate to remove uninjured class members post-judgment during the claims administration process. As the court explained, to move the adjudication of injury-in-fact to the claims administration process would deprive the defendant of its fundamental Seventh Amendment right to a trial by jury on all of the elements of the plaintiffs’ causes of action. Moreover, the defendant had introduced substantial evidence showing that identifying the uninjured class members would require precisely the sort of individualized inquiries antithetical to both the predominance and superiority requirements of Rule 23(b)(3). As a result, the court reasoned that class certification would be inappropriate. The court distinguished its Nexium decision for two reasons: (1) unlike in Nexium, in Asacol a more than “de minimis” number of class members were uninjured; and (2) unlike in Nexium, in Asacol the defendant came forward with substantial evidence both of the number of uninjured persons and the difficulty of proving injury on a class-wide basis – and made clear that it intended to present that evidence at trial.

There are several important takeaways for class action defendants in courts that follow the Asacol rationale:

1. Asacol’s impact will likely be broader than antitrust cases. Although there is some language in the Asacol opinion that purports to limit its holding to antitrust or similar claims, in which “injury in fact” is an affirmative element of the cause of action, Asacol will likely have a much broader application. That is because Article III itself requires that every federal plaintiff have suffered an “injury in fact” to have standing to recover in federal court, and it is unlikely that the current Supreme Court will allow Rule 23 to serve as an end-run on that constitutional requirement.

2. Defendants should introduce evidence at class certification concerning the number of uninjured class members and the difficulty of identifying them. Asacol reinforces the importance to class action defendants to introduce substantial evidence at the class certification stage of the number of uninjured absent class members and the difficulties in proving injury on a class-wide basis. Although plaintiffs bear the burden of proving that the requirements of Rule 23 have been met, as a practical matter, defendants will likely have to level a genuine challenge to allegations of injury in fact and to the plaintiffs’ ability to prove injury on a class-wide basis to defeat class certification because of the presence of uninjured class members. Speculation or unsubstantiated theories that the class may contain uninjured persons probably won’t cut it. Expert testimony will often be required to meet this practical burden.

3. Consider challenging certification even where the number of uninjured class members seems de minimis. One of the stated bases for the court’s decision in Asacol was the fact that the number of uninjured class members was not de minimis. As the court explained, it would have had far fewer concerns if the class had contained just a few uninjured members who could have easily been “picked off” by the defendant “in a manageable, individualized process at or before trial.” This seems to us to be a point of internal inconsistency in the court’s rationale. The Seventh Amendment does not have a “de minimis number of litigants” exception, yet the First Circuit’s approach arguably still seems to.

Assuming the de minimis exception continues to survive to some degree, this does not necessarily mean that defendants should not challenge certification where it appears that only a de minimis number of class members were uninjured. Most importantly, to the extent a court adopts a procedure that contemplates identifying and removing the de minimis number of uninjured class members post-judgment, we believe, as the First Circuit seemed to also conclude, that such a procedure would violate the Seventh Amendment, the Rules Enabling Act, and Article III, none of which have a de minimis exception. We think it likely that the Supreme Court will soon make that clear, perhaps even in a petition for certiorari in this very case should one be filed.  Therefore, we recommend persistently raising and preserving the argument that certification of a damages class is inappropriate unless each and every class member has suffered injury. Unless a class defendant makes that argument, it may be deemed to have forfeited its Seventh Amendment rights, given that those rights can always be waived.

In addition, even if the court attempts to mitigate Seventh Amendment concerns by adopting a process that would allow the jury to identify the uninjured persons at trial, that still does not necessarily mean that class certification would be appropriate. On the contrary, if the process by which uninjured persons are identified would require highly individualized—and likely unmanageable—factual inquiries, then Rule 23(b)(3)’s predominance and superiority requirements might be defeated. That arguably was the case in Asacol, where injury turned on an individualized, subjective inquiry of each putative class member’s purchasing decisions.

Supreme Court to Review Whether Third-Party Defendants May Remove Class Action Counterclaims under CAFAThese are interesting times at the Supreme Court for class certification defendants—and we aren’t talking about the Kavanaugh confirmation process. No, late last week, in Home Depot USA Inc. v. George Jackson*, the Supreme Court took the rare step of granting cert to visit an issue on which the circuit courts, to date, have been in agreement: whether class action counterclaims asserted against a third-party counterclaim defendant are removable if those claims meet the removal requirements of the Class Action Fairness Act of 2005 (CAFA).

In terms of traditional diversity and federal question removal, it has been settled law since the Supreme Court’s decision in Shamrock Oil & Gas Corp. v. Sheets that counterclaims asserted against an original plaintiff are not removable, even if they would have been removable had they been asserted in a separate action against the original plaintiff. In Shamrock Oil, the Supreme Court explained that the use of the phrase “defendant or defendants” in the traditional federal removal statute, 28 U.S.C. § 1441, applied only to original defendants, not to original plaintiffs who become defendants to a counterclaim. Shamrock Oil’s logic was subsequently applied to class action counterclaims asserted by the original defendant against the original plaintiff and to third-party counterclaims asserted against new defendants who were not the original plaintiff, including class action claims. Only in the relatively rare circumstance where a third-party defendant was able to successfully realign the parties did courts allow removal of counterclaims against a third-party defendant (see Hickman v. Alpine Asset Mgmt. Grp., LLC).

With the passage of CAFA, however, there was initially some hope that Shamrock Oil would no longer apply to class action counterclaims that met CAFA’s removability requirements. By enacting CAFA, Congress sought to curb abuse by plaintiffs’ attorneys who had sought to “game the system” by filing large, interstate class actions in favorable state courts where, often, the interests of class counsel were given priority over the interests of both defendants and the class. To accomplish this goal, CAFA broadly enables removal by “any defendant” of any sufficiently large class action ($5 million amount in controversy) that meets minimal diversity. Because the goal of CAFA is to enable more class actions to be removed to federal court, the Supreme Court has made clear that CAFA has no “antiremoval presumption.”

Yet, to date, the hope that CAFA would trump Shamrock Oil has been unfulfilled. Even after CAFA’s enactment, lower courts readily applied Shamrock Oil to bar CAFA removal of class action counterclaims. First, in Progressive West Insurance Co. v. Preciado, the Ninth Circuit held that original plaintiffs could not remove class action counterclaims under CAFA. A year later, in Palisades Collections LLC v. Shorts, the Fourth Circuit held that third-party counterclaim defendants—i.e., counterclaim defendants who were not the original plaintiff—also could not remove class counterclaims under CAFA. The only other circuits to address the issue—the Sixth, Seventh, and Ninth Circuits—have all concurred with the Fourth, and twice SCOTUS has denied cert. Therefore, it has been considered settled law that no counterclaim defendant, whether or not an original plaintiff, may remove a class action counterclaim under CAFA.

But with the Supreme Court’s grant of cert in Home Depot despite the complete absence of a circuit split, there is reason to believe that this “settled” law may be about to change. In Home Depot, Citibank filed a collection action against a consumer in state court. In response, the consumer filed class action counterclaims against original plaintiff Citibank, as well as additional third-party defendants Home Depot and Carolina Water Systems, Inc. (CWS), neither of which had been a party to the original collection action. Thereafter, Citibank dismissed its claim, and Home Depot removed the case to federal court, arguing that because it had never been anything but a defendant, it was entitled to remove under CAFA, given that CAFA allows “any defendant” to remove applicable class actions. Post-removal, the original defendant then dismissed his counterclaim against Citibank, leaving Home Depot and CWS as the only defendants in the case. Yet, in affirming the district court’s remand to state court, the Fourth Circuit disagreed with Home Depot’s argument that CAFA entitles third-party defendants who have never been plaintiffs to remove class counterclaims, explaining that under Fourth Circuit precedent and the unanimous precedent of other circuits, counterclaims are not removable, even under CAFA and even when the counterclaim defendant was not an original plaintiff.

Despite the unanimity among the circuits, the Supreme Court has chosen to take up this issue. Moreover, in granting cert, the Supreme Court made clear that it will address not only the question specifically presented in Home Depot—whether CAFA allows a third-party counterclaim defendant who is not an original defendant to remove a class action counterclaim—but also the broader question of whether such a third-party counterclaim defendant may remove any counterclaim, whether or not brought on behalf of a class.

Reading the tea leaves, the Supreme Court’s grant of cert despite circuit agreement seems to strongly suggest that the Supreme Court disagrees with—and will overturn—settled law. How things ultimately shakeout will depend upon a number of factors, not the least of which is who may ultimately end up being confirmed to fill Justice Kennedy’s vacated seat on the Supreme Court. Nevertheless, it seems prudent for any counterclaim defendants (whether original plaintiffs or third-party defendants) to consider removing any qualifying class counterclaims (and class third-party claims) under CAFA. Only by doing so may that defendant preserve the issue, because even if the Supreme Court ultimately decides that such claims are removable, it is unlikely that the Supreme Court would revive time periods for removal that have already lapsed or that may lapse pending its decision. Such removing counterclaim and third-party claim defendants should also consider seeking to stay any motion to remand pending a ruling in Home Depot.

We will continue to monitor this case.

*Bradley provided input on an amicus brief submitted by the Defense Research Institute in support of Home Depot’s petition for cert. Larry Ebner of Capital Appellate Advocacy PLLC was principal draftsman of that brief.