Antitrust Class Action Defense Cases-Cordes v. A.G. Edwards: Second Circuit Reverses Denial Of Class Action Certification In Antitrust Class Action Holding Assignees Could Serve As Class Representatives And Predominance Existed

District Court Erred in Denying Class Action Motion because Plaintiffs were Assignees of Original Plaintiffs, who were Members of the Class, and in Determining that Common Issues as to Damages did not Predominate Second Circuit Holds

Plaintiffs filed an antitrust class action lawsuit against certain initial public offering (IPO) underwriters alleging violations of the Sherman Act “by agreeing to charge all corporations conducting mid-size IPOs who used their services a fee equal to seven percent of the proceeds of the offering.” Cordes & Co. Fin. Services, Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 94-95 (2d Cir. 2007). Plaintiffs’ assignees (Cordes) assumed control of the class action litigation and sought class certification, id.; defense attorneys opposed class action treatment arguing, inter alia, that Cordes were not adequate class representatives because they were not members of the class and that common issues did not predominate, id., at 95. Cordes presented an expert opinion that the class action was susceptible to common proof because a formula, “common to all class members,” could be utilized to determine “the difference between the fee actually paid and the ‘but-for fee’ – the fee that would have been charged to the putative class members in connection with the IPO in the absence of the alleged conspiracy.” Id., at 97. The defense expert countered that a preliminary inquiry must be made – viz., “the fee that the underwriter would have charged but for the conspiracy” – and that this would require “an individualized, plaintiff-by-plaintiff analysis of ten factors, including underwriter costs, price stabilization, and the risk of the offering.” Id. The district court agreed with defense counsel and denied the motion for class action certification, id., at 95. The Second Circuit reversed.

The issues on appeal were whether the district court properly determined the adequacy of representation issue and whether it properly analyzed the predominance requirement. Cordes, at 98. With respect to the Rule 23(a)(4) adequacy of representation test, the district court held that the putative class representatives did not fall within the scope of the class defined in the complaint, id., at 99. The Second Circuit noted, however, that the original class representatives “were indisputably members of the class they sought to represent,” and concluded that they could subsequently assign their “claims and interests in this litigation” to other parties who then could prosecute the class action. Id., at 99-100. Put simply, “By virtue of the assignments, [plaintiffs-assignees] do…possess the same interest [as the assignors] and thus may continue to assert a claim for the same injury shared by all members of the class.” Id., at 101. The bottom line is that Cordes were not precluded from acting as class representative solely because they are assignees. Id., at 103.

Certification of Class Actions Class Action Court Decisions Uncategorized

Class Action Defense Cases-Georgia-Pacific v. Carter: Arkansas Supreme Court Reverses Certification Of Nuisance Class Action Against Georgia-Pacific Holding That Common Issues Did Not Predominate So Class Action Treatment Was Inappropriate

Class Action Complaint Asserting Toxic-Torts Mass Action by Property Owners for Private Nuisance did not Warrant Class Action Certification because Individual Issues would Necessarily Predominate over Common Issues of Fact or Law Arkansas Supreme Court Holds

Plaintiffs filed a class action lawsuit in Arkansas state court against Georgia-Pacific and the City of Crossett seeking “damages and injunctive relief arising out of vapors, gasses, odors, and other forms of hazardous, noxious, toxic and/or harmful substances and contamination issued and emitted from the industrial wastewater treatment system that the defendants…have operated throughout the West Crossett community over a period of many years, and which harmful substances and contamination have migrated through the air to and into the property, homes and persons of the plaintiffs, where such substances and contamination have occasioned injury, harm and inconvenience.” Georgia-Pacific Corp. v. Carter, ___ S.W.3d ___ [Slip Opn., at 2] (Ark. October 11, 2007). The class action complaint alleged theories of negligence, gross negligence, nuisance, trespass, strict liability and damages, additionally sought injunctive relief. _Id._ Plaintiffs moved for class action certification of a class of property owners; defense attorneys argued class action treatment was not warranted in part because common issues did not predominate over individual issues and a class action was not the superior means of resolving the dispute. _Id._, at 1-2. The circuit court “certified for class-action treatment ‘the plaintiffs’ private nuisance claims against G.P.’” but “held in abeyance” whether to certify a class action against the City. _Id._, at 2-3. Defense attorneys appealed. The Arkansas Supreme Court reversed, holding that class action treatment was inappropriate.

The Arkansas Supreme Court noted that “in order for a class-action suit to be certified, the party seeking certification must establish each of the following six factors: (1) numerosity; (2) commonality; (3) predominance[;] (4) typicality; (5) superiority; and (6) adequacy.” Georgia-Pacific, at 6 (citation omitted). The Court disagreed with defense arguments that the circuit court failed to consider the predominance requirement, holding that it “specifically found” that predominance had been met. Id., at 6-7. It agreed, however, that class action certification was inappropriate. Arkansas “distinguish[es] between class actions involving mass-tort claims and toxic-tort claims,” id., at 8; “mass-tort actions present unique certification problems because they generally involve numerous individual issues as to the defendant’s conduct, causation, and damages,” id., at 9. These concerns are not as significant when the injuries arise from a “single, catastrophic event” – what the Arkansas Supreme Court described as a “mass-accident” case, as opposed to injuries that arise from “a series of events occurring over a considerable length of time and under different circumstances,” which the Court described as “toxic-tort or products-liability” cases, id., at 9.

Certification of Class Actions Class Action Court Decisions Uncategorized

FedEx Class Action Defense Cases-In re FedEx Ground: Indiana Federal Court Certifies Kansas Class Action Under Rule 23(b)(3) And Nationwide ERISA Class Action Under Rule 23(b)(2) In Labor Law Class Action By Drivers Against FedEx

Kansas Class Representatives in Labor Law Class Action by Drivers Against FedEx Adequately Established Rule 23(b)(3) State-Wide Class Action for Misclassification of Drivers under Kansas Labor Laws and for Common Law Claims Against FedEx, and Rule 23(b)(2) Nationwide Class Action for Denial of ERISA Benefits Indiana Federal Court Holds

In 2005, the Judicial Panel on Multidistrict Litigation transferred numerous class action lawsuits to the Northern District of Indiana pursuant to 28 U.S.C. § 1407; ultimately, the MDL docket included 56 class action lawsuits filed in 30 states alleging that FedEx improperly classified drivers as independent contractors rather than employees and thus failed to pay wages due under state and federal wage statutes and failed to pay benefits due under ERISA. In re FedEx Ground Package Sys., Inc., Employment Prac. Litig., ___ F.Supp.2d ___ [Slip Opn., at 1-2] (N.D. Ind. October 15, 2007). The Kansas plaintiffs moved the federal court to certify a class action on their behalf, as well as a nationwide class action on behalf of the ERISA class, _id._, at 1. Defense attorneys opposed class action treatment, and submitted three expert reports purporting to show (1) “that FedEx Ground workers prefer to be independent contractors by a 52% to 20% margin,” _id._, at 8, (2) “that FedEx Ground delivery drivers are operating a business,” _id._, at 15, and (3) that the workers are independent contractors because there are “important variations in the contractors’ work,” _id._, at 20. Plaintiffs objected to the federal court considering these expert reports in deciding whether to certify a class action, and moved to strike the reports under Federal Rule of Evidence 702. _Id._, at 1-2. The district court denied plaintiffs’ motion to strike, but agreed that class action treatment was warranted.

The district court explained that the Kansas plaintiffs challenged the FedEx practice “of labeling its Ground and Home Delivery division drivers as independent contractors.” FedEx, at 22. According to the class action allegations, “the FedEx Operating Agreement signed by all FedEx drivers actually reserves to FedEx the right to exercise pervasive control over the method, manner, and means of the drivers’ work,” including “the drivers’ appearance and behavior, their pay and rates charged to customers, the vehicle they use and its appearance, their route and the number of packages they deliver each day, their delivery methods and mode of customer service, their hours of work, and their opportunity to increase their earnings.” Id., at 22-23. Class action treatment is further warranted, plaintiff argued, because “FedEx has a categorical policy of classifying its drivers as independent contractors” and because putative members of the proposed class action “share the same job title, signed the same nonnegotiable Operating Agreement, are paid under the same compensation formula, wear the same uniform, drive FedEx approved trucks bearing the FedEx logo, work exclusively for FedEx, and are all similarly integrated into FedEx’s operations.” Id., at 23. The class action sought rescission of the operating agreement and a declaration that defendant’s practices violated Kansas labor laws, id., at 30. Defense attorneys argued against class action treatment by arguing that numerous individualized factual inquiries exist, id., at 23.

Certification of Class Actions Class Action Court Decisions Employment Law Class Actions Uncategorized

Class Action Defense Cases-Asher v. Baxter International: Seventh Circuit Dismisses Appeal From Court Order Refusing To Certify Class Action As Untimely

Rule 23(f) Requires Plaintiffs Seek Interlocutory Review from First Denial of Motion for Class Action Certification because 10-Day Window for Appeal does not Commence with Every Denial of such a Motion First Seventh Circuit Holds

Plaintiffs filed six securities fraud class action lawsuits against Baxter International. Asher v. Baxter Int’l Inc., 505 F.3d 736 [Slip Opn., at 1] (7th Cir. 2007). The district court granted a defense motion to dismiss the consolidated class action lawsuits based on the “safe harbor” provision for forecasts and other forward-looking statements created by the Private Securities Litigation Reform Act of 1995 (PSLRA), id., but the Seventh Circuit reversed, holding that the district court erred in dismissing the class action complaint based on the allegations in the complaint. See Asher v. Baxter Int’l Inc., 377 F.3d 727 (7th Cir. 2004). It was the Seventh Circuit’s expectation “that discovery sufficient to make a prompt decision about the safe harbor would follow [the] opinion, for the safe harbor is supposed to be applied at an early stage.” Asher, at 2. Instead, the litigation devolved into “extended wrangling about who should be the ‘lead plaintiff’ under the 1995 Act, and thus which law firm would control the plaintiffs’ side of the litigation.” Id. In the face of the infighting, “the district court eventually held that none of the persons proposed as lead plaintiffs is satisfactory and that the suit therefore cannot proceed as a class action.” Id. The motions panel for the Seventh Circuit permitted plaintiffs to file an interlocutory appeal under FRCP Rule 23(f) from the denial of class action treatment, id., but the Circuit Court dismissed the appeal as untimely, id., at 10.

The Seventh Circuit explained at page 2 that the purpose of designating “lead plaintiffs” in class actions is “to counteract the dominance of lawyers over class-action suits.” Asher, at 2 (italics added). Specifically, “[T]he district judge should select a representative with a financial stake large enough to make monitoring of counsel worthwhile, and with the time and skills needed to make monitoring productive. The idea is that securities suits then will proceed in the interest of investors rather than the lawyers who appoint themselves to prosecute these actions.” Id. (italics added). (The Circuit Court’s observation and criticism may have been influenced by the criminal indictment of several securities fraud class action plaintiff lawyers – including Melvyn Weiss, David Bershad, Steven Schulman and William Lerach – most of whom have pleaded guilty to paying illegal kickbacks to individuals to serve as “lead plaintiffs” in securities fraud class action lawsuits.) According to the Seventh Circuit, “The principal substantive questions on appeal are (a) whether the City of Fayetteville Firemen’s Pension and Relief Fund (‘the Fund’) is unsuitable as a lead plaintiff because it learned about Baxter International’s supposed wrongs from a securities lawyer rather than from a business executive, and (b) whether ‘no one’ can be the answer to the question ‘who is the best representative of investors’? Perhaps, when all potential lead plaintiffs have shortcomings, the district judge must choose the least bad of a mediocre lot; after all, the 1995 statute refers to ‘the most adequate plaintiff’ among many, without setting a floor.” Asher, at 2 (italics added). While a district court may ensure “minimum standards of adequacy” under “adequacy” test of Rule 23(a)(4), in this case the lower court never made such an inquiry. Id., at 2-3.

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UCL Class Action Defense Issues-Buckland v. Threshold Enterprises: Plaintiff Who Buys Products For Purpose Of Filing Class Action Has Not Suffered Loss Supporting Dismissal Of UCL/CLRA Class Action California Court Holds

California Court Holds that Putative Class Action Alleging Violations of State’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act Fails for Lack of Actual Reliance and Lack of Standing Where Plaintiff Purchased Products for the Purpose of Filing Class Action

In a case with broad implications to class action lawsuits, plaintiffs filed an individual lawsuit in California state court against Threshold Enterprises and more than 30 other defendants alleging violations of the state’s unfair competition law (UCL), false advertising law (FAL) and Consumers Legal Remedies Act (CLRA) because its skin cream was a “misbranded or mislabeled drug.” Buckland v. Threshold Enterprises, Ltd., ___ Cal.App.4th ___, 2007 WL 2773497 (Cal.App. September 25, 2007) [Slip Opn., at 2]. Defense attorneys demurred to the complaint on the grounds that plaintiffs lacked standing to assert the various UCL, FAL and CLRA claims, _id._ at 3. The trial court sustained the defense demurrer to the complaint but granted plaintiffs leave to amend; plaintiffs refused to amend the complaint so the court entered judgments of dismissal and plaintiffs appealed. _Id._, at 2. The Court of Appeal affirmed, holding that .

Plaintiffs California Women’s Law Center and its executive director, Katherine Buckland, “seek[] to advance the civil rights of women and girls” and allege that the some skin creams and lotions sold by defendants contain progesterone or other chemicals regulated by the FDA but that defendants failed to provide adequate warnings in violation of FDA regulations. Buckland, at 2-3. Plaintiffs sought a preliminary injunction to enjoin Threshold from selling skin cream, id. at 3. Buckland admitted, however, that she did not suffer any personal injury but rather purchased the items for the express purpose of determining whether lawsuits could be filed based on the chemicals contained in them. Id. Threshold opposed the injunction on the grounds that plaintiff would not likely prevail on the merits and that the “balance of hardships” weighed against such relief. Id., at 3-4.

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Class Action Defense Cases-Gruer v. Merck-Medco: Second Circuit Reverses District Court Order Approving Class Action Settlement Holding Class Action Plaintiffs Were Not Representative Of Class

Interests of Plaintiffs in Class Action Conflicted with other Class Members, Warranting Certification of Subclass and new Hearing on Approval of Class Acton Settlement Second Circuit Holds

Plaintiffs filed a class action Merck-Medco managed Case, L.L.C., a/k/a Medco Health Solutions, Inc., a pharmaceutical benefits manager (PBM), and its former parent company Merck & Co. Inc. (collectively Medco) alleging violations of the Employee Retirement Income Security Act of 1974 (ERISA) for breach of fiduciary duties. Gruer v. Merck-Medco Managed Care, LLC, ___ F. 3d ___ (2d Cir. October 4, 2007) [Slip Opn., at 6]. Ultimately, the parties reached a tentative settlement of the class action. Important to our discussion, the class action settlement required Medco pay $42.5 million to class members, allocated primarily on a pro rata share of monies spent by each plan but reducing by 55% the share of certain plans because those plans could not have been injured directly by the conduct of Medco. _Id._, at 8. The district court approved the class action settlement, but the Second Circuit reversed and remanded holding that the lower court erred in failing to consider the conflict of interest between the purported representatives of the class action and other members of the class.

In very broad terms, plaintiffs in the class action complaint consisted of individuals, as beneficiaries of certain welfare benefit plans, and of trustees of welfare benefit plans. Gruer, at 4. The class action complaint alleged that Medco breached fiduciary duties under ERISA by “failing to act in their best interest in its capacity as a pharmaceutical benefits manager for the plans,” id., as set forth in the Note. A class action settlement was proposed, at which time certain entities sought leave to intervene and/or objected to the settlement. Id. The district court certified a class action, approved the settlement, awarded legal fees, and severed those cases in which ERISA plans opted out of the class action settlement, id.

Certification of Class Actions Class Action Court Decisions Uncategorized

Labor Law Class Action Defense Cases-Estrada v. FedEx: California State Court Upholds Class Action Judgment Against FedEx But Holds $14.4 Million Fee Award Must Be Reduced As Excessive

Trial Court Class Action Judgment Against FedEx for Labor Law Violations Generally Upheld but California State Appellate Court Reverses Attorney Fee Award as Excessive and because Multiplier Improperly Based on Same Facts that Triggered Entitlement to Fees

Plaintiffs filed a class action in California state court against FedEx Ground Package System, Inc. alleging violations of the state’s labor laws for failure to reimburse work-related expenses; the thrust of the class action complaint was that, “for the limited purpose of their entitlement to reimbursement for work-related expenses, [class members] were employees, not independent contractors.” Estrada v. FedEx Ground Package Sys., Inc., 64 Cal.Rptr.3d 327 330 (Cal.App. 2007). The trial court granted plaintiffs’ motion to certify the litigation as a class action, and a trifurcated trial followed during which (1) “the court found the drivers were employees within the meaning of Labor Code section 2802 (Phase I) , ordered FedEx to reimburse some (about $5 million, including prejudgment interest) but not all of their expenses (Phase II), granted most of the equitable relief sought by the drivers (Phase III), and ordered FedEx to pay the drivers’ costs and attorneys’ fees (about $12.3 million).” Id. Defense attorneys appealed and plaintiffs cross-appealed.

The Court of Appeal noted that this represented the third appeal in this case, and that it here considered defense challenges to the trial court order certifying the class action, the finding that the drivers were employees, the reimbursement findings, and the award of attorney fees. Estrada, at 330-31. The facts are quite detailed, and we do not repeat them here. See id., at 331-34. On the direct appeal, the Court of Appeal affirmed that the drivers were employees of FedEx, not independent contractors. Id., at 335. The appellate court noted that the California Labor Code does not define “employee” for purposes of section 2802 so the common law test applies, and explained at page 335 that under that test the question is “whether the principal has the right to control the manner and means by which the worker accomplishes the work” based on a number of factors including “(1) whether the worker is engaged in a distinct occupation or business, (2) whether, considering the kind of occupation and locality, the work is usually done under the principal’s direction or by a specialist without supervision, (3) the skill required, (4) whether the principal or worker supplies the instrumentalities, tools, and place of work, (5) the length of time for which the services are to be performed, (6) the method of payment, whether by time or by job, (7) whether the work is part of the principal’s regular business, and (8) whether the parties believe they are creating an employer-employee relationship.” (Citations omitted.) Under those factors, substantial evidence supported the finding that the drivers were “employees,” see id., at 336-37.

Next, the Court of Appeal affirmed that class action treatment was appropriate, holding that “it is clear that common issues – whether the drivers were employees and, if so, which expenses would be reimbursable – predominated.” Estrada, at 338. The appellate court affirmed also the trial court finding that FedEx failed to reimburse the drivers for all expenses required by law, see id., at 339.

Certification of Class Actions Class Action Court Decisions Employment Law Class Actions Uncategorized

FDCPA Class Action Defense Cases-Guevarra v. Progressive Financial: California Federal Court Holds Congress Must Address “Ethically Questionable” Conduct of Plaintiff’s Counsel In Multiplying Class Action Litigation

Class Action Plaintiff Lawyer’s Collusion with Plaintiff’s Counsel in Separate Fair Debt Collection Practices Act (FDCPA) Class Action Against Same Defendant is not Condoned but Remedy lies with Congress not with Disciplinary Bodies California Federal Court Holds

Plaintiff filed a putative class action against a debt collection agency and one of its employees alleging that letters sent to debtors violated the federal Fair Debt Collection Practices Act (FDCPA) and California’s state law equivalent, the Rosenthal Fair Debt Collection Practices Act (Rosenthal Act). Guevarra v. Progressive Fin. Servs., Inc., 497 F.Supp.2d 1090, 1090-91 (N.D. Cal. 2007). The class action complaint originally sought “class-wide relief on behalf of all debtors who received the letter at issue here”; however, plaintiff’s counsel subsequently amended the class action allegations to seek relief solely on behalf of debtors of a single creditor. IKEA. Id., at 1091. Plaintiff’s counsel then asked the district court to certify the litigation as a class action, and admitted at oral argument that counsel was “coordinating with plaintiff’s counsel in a separate [class action] pending in the Central District of California concerning the same letter as the one at issue here.” Id. As the district court explained at page 1091, “Apparently, plaintiff’s counsel agreed with counsel in the [other class action] to divide up the class between the IDEA and non-IKEA creditors.” The district court refused to certify the litigation as a class action and issued an Order to Show Cause why plaintiff’s counsel should not be referred to the State Bar for disciplinary action. Id.

The district court denied the class certification motion “citing plaintiff’s arbitrary distinction between IKEA and non-IKEA creditors and concluding that plaintiff’s proposed definition is not ‘superior’ to other means available under FRCP 23(b)(3).” Guevarra, at 1091. The federal court explained at page 1091, “Because plaintiff’s counsel appeared to have divided up the class in order to maximize attorney fees without significant benefit to their clients, the court ordered plaintiff’s counsel to show cause why the court should not refer this matter to the State Bar of California and the Northern District’s Standing Committee on Professional Conduct” (citations omitted). The court also concluded that the case relied upon by plaintiff’s counsel, Mace v. Van Ru Credit Corp., 109 F.3d 338 (7th Cir.1997), was in applicable because the Mace court merely refused to impose on counsel a duty to bring a class action “on behalf of the broadest possible class”; “Mace does not, however, condone post-suit collusion between counsel in separate actions in order to cut a class in two.” Id., at 1091.

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Class Action Defense Cases-John v. National Security: Fifth Circuit Upholds District Court Dismissal Of Class Action Allegations Because Class Action Complaint Failed To Plead An Ascertainable Class

Class Action Requirements of Rule 23 Implicitly Require District Court to Determine Whether Class Action Complaint Adequately Pleads an Ascertainable Class Fifth Circuit Holds

Plaintiffs filed a class action lawsuit against their homeowner’s insurance carrier for damages caused by Hurricane Rita, alleging inter alia that the insurer “systematically under-adjust[ed] damages claims by failing to account for the inevitable inflation in the price of labor and materials for home repair that follows from natural disasters.” John v. National Sec. Fire & Cas. Co., 501 F.3d 443, 2007 WL 2743633, *1 (5th Cir. 2007). The class action complaint alleged further that the insurer breached the terms of its insurance policies by “systematically failing to account for general contractors’ overhead profit…when repair required the exercise of two or more trades.” Id. Defense attorneys moved to dismiss the class action for failure to state a claim, and for failure to plead an ascertainable class, id. The district court agreed with the defense arguments and dismissed the fraud claim and the class action allegations; the Fifth Circuit granted interlocutory review to resolve the issue of whether the district court erred in dismissing the class action allegations. The Circuit Court affirmed.

Preliminarily, the Fifth Circuit rejected plaintiffs’ efforts to redefine their class action allegations. Specifically, the Circuit Court noted that on appeal plaintiffs’ proposed two separate classes, and that plaintiffs “do not argue in favor of certifying a unitary class, as they proposed in their amended complaint.” John, at *1. Because, however, the Circuit Court’s jurisdiction was limited to whether the district court properly dismissed the unitary class action allegations in the pleadings, the Court explained at page *1 that it “may not consider whether the court should have certified two separate classes that were never proposed to it.” (Citing La. Patients’ Comp. Fund Oversight Bd. V. St. Paul Fire &Marine Ins. Co., 411 F.3d 585, 588 (5th Cir. 2005).) The Fifth Circuit rejected also plaintiffs’ claim that “dismissal of a class allegation on the pleadings is never proper.” Id. The Circuit Court explained at page *1:

Certification of Class Actions Class Action Court Decisions Uncategorized

Class Action Defense Cases-CE Design v. Mortgage Exchange: Illinois State Appellate Court Dismisses Petition Seeking Leave To Appeal Denial Of Class Action Treatment Agreeing With Defense That Petition Was Untimely

Petition Seeking Review of Trial Court Order Denying Motion to Certify Class Action was Untimely thus Compelling Dismissal of the Petition for Lack of Jurisdiction

Plaintiffs filed a putative class action lawsuit in Illinois state court against The Mortgage Exchange alleging violations of the federal Telephone Consumer Protection Act of 1991 (TCPA) and the state’s consumer fraud and deceptive business practices arising out of defendant’s transmission of unsolicited advertisements via facsimile. CE Design, Ltd. v. The Mortgage Exchange, Inc., 872 N.E.2d 1056, 1057 (Ill.App. 2007). Plaintiffs moved the trial court for an order certifying the litigation as a class action; defense attorneys opposed the motion on the grounds, inter alia, that “issues such as the specific receipt of and consent to receive a facsimile transmission by each class member were not common issues.” Id., at 1057-58. __On October 13, 2006, the trial court agreed with the defense and refused to certify a class action holding, also, that class action treatment was inappropriate because in enacting the TCPA Congress “envisioned individual, small claims litigation, not private class actions with potential recoveries in the millions of dollars.” Id., at 1058. Plaintiffs sought reconsideration of the denial of class certification, which the trial court denied on February 22, 2007. Plaintiffs sought leave to appeal the denial of class action treatment, and defense attorneys moved to dismiss plaintiffs’ petition for lack of jurisdiction. Id. The appellate court granted the defense motion holding that plaintiffs’ petition was untimely.

Under Illinois state court rules, plaintiffs’ petition had to be filed “within 30 days after the entry of the order”; plaintiffs acknowledge that they failed to meet this deadline but argued the time for filing the petition was tolled during the pendency of the motion for reconsideration, or alternatively that the motion for reconsideration was a “new motion” for certification of a class action. CE Design, at 1059. The appellate court rejected each argument. With respect to the tolling argument, the appellate court observed that “[t]here is no provision in the rule that allows a motion to reconsider an interlocutory order to extend the time for filing the petition for leave to appeal,” and that case law holds that the time period is not tolled. Id. (citations omitted). The court was unconvinced that motions to reconsider class certification orders should be an exception to this rule. Id., at1060.

Certification of Class Actions Class Action Court Decisions Uncategorized