Class Action Defendants Try to Persuade Supreme Court to Cut Back on 7th Circuit Law Allowing Judges to Create Flexible Methods for Ascertaining Class Membership

When a plaintiff files a class action lawsuit (usually against a large corporation), she does not have to include a list of every single potential class member along with her complaint. In many class action lawsuits, the plaintiffs are easily identifiable, but not always and it’s the cases in which the class members are harder to identify that defendants have been attacking the plaintiffs.

Consumer class actions are usually pretty straightforward and easy to manage. If a product is defective or doesn’t do what it’s supposed to do, most retailers can track the consumers who purchased that particular product and notify them of the class action lawsuit.

The process becomes significantly more difficult when the product in question is a small, inexpensive item. Consumers are less likely to keep their receipts of those purchases and the companies making the product often claim that they don’t have a direct list of customers because they sell through various retailers. They can always alert the public to these class action lawsuits and ask anyone who thinks they may fit the criteria for participating in the class to file a claim, but that’s according to corporate defendants who want to defeat class not always reliable. Defendants have been arguing that these types of class action lawsuits should be dismissed unless the plaintiffs prove they have a reliable method of identifying class members and always find holes in any reasonably reliable plan suggested.

The problem is the burden of identifying class members has never before rested on the plaintiffs. Companies often keep records of who bought what when, as well as who worked for them when, so in both consumer and employment class action lawsuits, the burden of identifying class members should fall on the defendant who is the business of tracking its customers. Companies are now trying to change that.

It will ultimately be up to the Supreme Court to determine whether, going forward, plaintiffs will be held responsible for proving they can identify enough plaintiffs to justify file a class action lawsuit. Orrick Herrington & Sutcliffe filed a petition for the Supreme Court to make the final decision in a proposed class action lawsuit against Direct Digital, the marketer of a nutritional supplement which was allegedly also advertised as a pain reliever.

The 7th U.S. Circuit Court of Appeals affirmed the certification of the class of consumers who allege Direct Digital falsely advertised the nutritional supplement. In arguing on behalf of Direct Digital, Orrick’s petition for the Supreme Court to hear the case claims the 7th Circuit Court’s ruling directly contradicts precedent from the 1st, 4th, and 11th Circuit Courts. They therefore claim that it is now up to the Supreme Court to put the matter to rest once and for all.

Procter & Gamble have also petitioned the Supreme Court to hear a lawsuit against the company alleging an ineffective probiotic supplement. The 6th Circuit Court’s ruling in the matter was a split holding that affirmed certification of a class of consumers. In its ruling, the Circuit Court pointed out that a significant number of P&G’s customers could be identified through the company’s own sales records.

P&G said its sales records don’t actually identify those who purchased the supplement, so it argues the 6th Circuit Court ruling would not have survived in other appellate courts (including the 3rd, 4th, and 11th Circuits).

Each Circuit Court sets a precedent for all the other courts, but the Supreme Court has the final say. If the Supreme Court does decide to hear one or both of these two cases, its ruling will be the final word in the matter and will affect a large number of consumer class action lawsuits in the future, either by requiring the plaintiffs to prove they have a reliable method of identifying the class members, or by continuing to allow all valid class action claims to continue to the courts, regardless of whether the plaintiffs have a ready list of class members.

Our Homewood, Illinois consumer rights private law firm handles individual and class action data breach, privacy rights, deceptive advertising, predatory lending, unfair debt collection, lemon law and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocatesthe National Consumer Law Center, and local law school consumer programs. The Chicago consumer lawyers at Lubin Austermuehle are proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Lisle and Oakbrook Terrace consumer attorneys provide assistance in data breach, privacy violation, fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases our Chicago consumer lawyers have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago Heights and Waukegan consumer protection and data breach attorneys who can assist in consumer fraud, consumer rip-off, lemon law, unfair debt collection, predatory lending, wage claims, unpaid overtime and other consumer, or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.  You can also call our toll free number at 630-333-0333.

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