December 13, 2022
Volume XII, Number 347
December 13, 2022
– DOL Issues Final Rule Amending Investment Duties Regulation –…by: James Frazier
– Third time lucky or Schrems III? The European Union Data Pact with…by: Diletta De Cicco and James Downes
– Renewed Era of Crypto Assets Growth in Hong Kong by: Jay Lee
– Division I Universities Must Be Ready for Changes to the NCAA…by: Paul V.Kelly
– Damages in Pre-Certification Discovery are Premature, Discovery…by: Jenniffer Cabrera
– When Chains Change, Do NFTs Stay The Same? How Hard Forks May Affect…by: Jason H.
Finger
– COVID-19: A Roadmap to Fraud Investigations: Office of Inspector…by: Stephen D.Bittinger
– Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting…by: Abby M.Warren
– DOJ Antitrust Division and HHS OIG Enter into Partnership to Increase…by: Diane Hazel
– Can Discovery Be Compelled from a Party? Possession, Custody, Control…by: Kathryn C.
Cole
– Weekly Bankruptcy Alert December 13, 2022 by: Bankruptcy & Creditors’ Rights
– All Things Chemical® Podcast: TSCA Regulation of Articles: The Saga…by: Lynn L.
Bergeson
– Energy & Sustainability M&A Activity — December 2022 by: Thomas R.Burton, III and Sahir Surmeli
– Energy & Sustainability IP Updates — December 2022 by: Brad M.
Scheller
– SEC Reopens Proposal on Stock Buyback Rules by: Erin Reeves McGinnis
– Chips Chatter: December 5-12, 2022 by: Pablo E.Carrillo and Ludmilla L.Kasulke
– How may behavioral advertising trackers do websites deploy currently? by: David A.
Zetoony
– FRB Proposes Climate-Related Financial Risk Management Principles by: Daniel Meade
– Energy & Sustainability Litigation Updates — December 2022 by: Jacob H.Hupart
– Cross Border Recognition, 25 years on: the view from each side of the…by: Michelle N.Saney
– A New Era of Technology in the Private Markets by: Louis Lehot and Christopher Converse
– New York City Postpones Enforcement of Automated Employment Decision…
by: Simone R.D.Francis
– New Law Seeks To Curtail Coerced Debts by: Keith Paul Bishop
– Republican SEC Commissioners Continue to Criticize Proposed Climate…by: Jacob H.
Hupart
December 12, 2022
– Raters gonna rate…but there’s a bright side! by: Daniel B.Guggenheim
– SEC Awards More than $20 Million to Whistleblower by: Mary Jane Wilmoth
– Estate Planning for Football Season Ticket Holders by: Katherine M.Szymanski and Rebecca K.
Wrock
– American Hospital Association Urges DEA to Issue Special Registration…by: Nathaniel M.Lacktman
– EPA Announces $25.7 Million in Grants to Support Water Systems in…
by: EPA
– Weekly IRS Roundup December 5 – December 9, 2022 by: Tax Practice Group McDermott Will Emery
– CMS Announces Strategy on Value-Based Payments for Specialty Care by: Anahita Anvari
– DOL Proposes Self-Correction Option and Other Changes to Voluntary…by: Justin S Alex
– The City of Los Angeles’ Fair Work Week Ordinance Requires…by: Tomi Oshita
– Recent Developments in Telehealth Enforcement by: Sara Helene Shanti and Danielle Vrabie
– ESG INVESTING AND PROXY VOTING: DOL’S NEW FINAL RULE by: Kristina M.Zanotti and Ruth E.Delaney
– IN A NEW YORK MINUTE, Telemarketing Laws Are Changing! by: Angelika Munger
– More Places, Less Spaces: California is Driving Down Development Costs by: Amanda S.
Lee
– Bereavement Leave Becomes Mandatory in the Golden State by: Kaleb N.Berhe
– New Year Brings New Laws for Illinois Employers by: Mikela T.
Sutrina and Katherine H.Oblak
– Decision in U.S.
v.Holland by: Gabriel L.Imperato
– Top Five Labor Law Developments for November 2022 by: Jonathan J.Spitz and Richard F.
Vitarelli
– “Cold-Pressed Juice” Lawsuit Permanently Dismissed by: Food and Drug Law at Keller and Heckman
– USPTO Releases New Guidelines Shortening the Response Deadline in…by: Luna M.Samman
– ‘No Exit’: SEC Sanctions Investment Adviser for Impeding…by: Peter D.Hutcheon
– TradeTalk China: December 2 – December 9, 2022 by: Pablo E.Carrillo and Ludmilla L.Kasulke
– $10.3 Million in Grants Awarded to Improve the Health of Long Island…by: EPA
– RE-STRUC: Tax Changes as of 2023 by: Thomas van der Vliet and Louisa van Isselmuden
– The CAC Assessment Collection – Part 2: What Must Be Done Before…
by: Amigo L.Xie and Dan Wu
– Here We Go Again: Lesser Prairie-Chicken Re-Listed Under the…by: Karma B.Brown and Linda Trees
– What’s more common: opt-in, opt-out, or notice cookie banners? by: David A.
Zetoony
– An Unstoppable Force Meets an Immovable Object: Microsoft to Fight…by: Jonathan Rubin
– Who Qualifies As An Expert Witness? by: Keith Paul Bishop
December 11, 2022
Damages in Pre-Certification Discovery are Premature, Discovery Limited to Numerosity and Ascertainability
Happy Tuesday TCPA World!! An interesting case here …
In Andrew Martin v.Khaylie Hazel Yearning LLC, No.3:22-CV-176-SA-JMV, 2022 WL 17573424, at *1 (N.D.Miss.
Dec.
9, 2022), plaintiff originally sought the identity of the members of the classes and to determine the amount of damages the identified members are entitled to recover.(i.e., putting the cart before the horse?)
By way of background, Plaintiff filed his complaint seeking to certify two nationwide classes.Defendant did not answer, so default judgment was entered.SMH… Plaintiff requested leave to conduct class certification and damages discovery.
The Court found that Plaintiff sought discovery beyond the relevant and proportional issues pertinent to a decision on class certification.
At the court’s request, Plaintiff then supplemented his motion requesting itemized discovery including subpoenas of Defendant and third parties.
The Court found that Plaintiff is not entitled to discovery as to damages unless and until a class is certified.The Court also limited the discovery for the prior two-year period and to the factors necessary for having the class certified.
As to Defendant, the Court held that Plaintiff is permitted a 30(b)(6) deposition of Defendant’s manager and incorporator as specified in the subpoena to include:
call logs in her possession relating to the solicitation of sales or promotions of Defendants’ CBD oil products,
discovering the identity and contact information of any third party engaged on behalf of Defendant to solicit or promote sales of its products via telephone, and
the types of information maintained by Defendant which could be reviewed to ascertain the identity and contact information of putative class members and/or whether a person otherwise meets a purported class definition.
As to third parties, the court allowed up to five (5) subpoenas for production of their respective call logs, and an example of such information, if any, maintained by such third party that could be reviewed to ascertain whether a person meets a purported class definition and their identity.
Takeaway:
Before class certification, discovery can include call logs, identity and contact information of any third party engaged to solicit or promote sales and the types of information maintained by Defendant to ascertain the identity and contact of the class.
However, damages, specific identity and contact information is premature until a class is certified.
Until next time, Countess!!!.