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District Court Decision Denying Class Certification Affirmed


(Washington, DC) March 6, 2012 – Venable lawyers successfully defeated appeal of a denial of class certification in a putative multi-state class action pending in the United States Court of Appeals for the Third Circuit, known as McNair v. Synapse Group Inc.
Defendant Synapse Group Inc. is a subsidiary of Time Inc. and a leading marketer of magazine subscription services using a continuous service plan.  Plaintiffs are former subscribers who sued Synapse in New Jersey federal court and, having lost a previous motion to certify a damages class, amended their complaint to seek an injunction against various Synapse marketing and subscription disclosures as well as renewal and cancel/save practices on behalf of current and future subscribers.  When the plaintiffs’ filed a second class certification motion, the district again denied certification and the plaintiffs appealed that decision.

Venable argued, among other things, that the named plaintiffs were all former customers and therefore lacked standing to seek injunctive relief.  The Third Circuit agreed, holding that as former customers, the plaintiffs did not have Article III standing because they could not demonstrate a sufficiently real and immediate likelihood of future injury from the challenged conduct.  The Third Circuit affirmed the district court’s denial of class certification.

“We are grateful for the Third Circuit’s decision upholding denial of class certification in this case,” lead counsel Tom Gilbertsen said.  “This is a significant decision because it confirms the constitutional requirement that class action plaintiffs must have an ongoing stake in the defendant’s conduct to seek any prospective relief.  Even when state consumer protection statutes provide injunctive remedies, that relief cannot be sought for a class by former customers with no stake in the defendant’s future conduct.  Nor does the ‘capable of repetition yet evading review’ exception to mootness apply in this situation because, as the court observed, there still must be a reasonable expectation that the same complaining party will be subject to the same conduct again.”  Gilbertsen also noted that the decision clarified the range of issues that a federal appellate court may reach on interlocutory appeal of a class certification order.

Venable attorneys involved were Tom Gilbertsen (lead counsel), Danielle Foley, Liz Forbes and Geoffrey Castello of Kelley Drye & Warren LLP. 

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