CAFA Class Action Defense Cases–Irish v. Burlington: Wisconsin Federal Court Reaffirms Order Remanding Class Action To State Court Holding Post-Removal Amendments Destroyed CAFA Removal Jurisdiction

Plaintiffs’ Amendment to Class Action Complaint Following Removal under Class Action Fairness Act (CAFA) Defeated CAFA Jurisdiction Warranting Remand of Lawsuit to State Court Wisconsin Federal Court Holds

Plaintiffs filed a putative class action in Wisconsin state court against various defendants seeking “damages resulting from a flash flood that inundated plaintiffs’ homes in the town of Bagley, Wisconsin in 2007.” Irish v. Burlington Northern Santa Fe Railway Co., 632 F.Supp.2d 871, 872 (W.D. Wis. 2009). Defense attorneys removed the class action to federal court on grounds of diversity even though two of the defendants shared Wisconsin citizenship with the plaintiffs, arguing that the Wisconsin-resident defendants were fraudulently joined to defeat diversity, and also asserting removal jurisdiction under the Class Action Fairness Act (CAFA). Id., at 872-83. “Plaintiffs’ moved to remand the case to state court, arguing that joinder was not fraudulent and that their suit was not subject to the Class Action Fairness Act.” Id., at 873. The district court determined that the joinder was not fraudulent but that CAFA removal jurisdiction existed, id. Plaintiffs sought and obtained leave to amend their class action complaint, “disavowing their class action allegations and seeking relief for only the named plaintiffs.” Id. The district court then remanded the class action to state court on the ground that it “no longer had subject matter jurisdiction under the Class Action Fairness Act.” Id. Defense attorneys moved the district court to reconsider its remand order, arguing that because CAFA jurisdiction existed at the time of removal, it could not be taken away by subsequent amendment “even if the case was no longer a class action.” Id. The district court granted reconsideration but again held that the case had to be remanded to state court.

As a preliminary procedural matter, the district court noted that defendants also filed a notice of appeal from the remand order with the Seventh Circuit. Irish, at 873. For reasons we do not discuss here, the district court concluded that it retained jurisdiction over the matter to reconsider its remand order. See id., at 873-74. Turning to the merits, the district court noted that the reconsideration motion was primarily directed at “[the] decision to remand the suit on the basis of a post-removal amendment of the complaint.” Id., at 874. The district court rejected the argument that “for the purpose of determining whether subject matter jurisdiction exists in a case removed from state court under [CAFA], the court is bound by the allegations of the original complaint and may not consider any later amendments.” Id., at 875. The court reaffirmed its holding that “the dismissal of plaintiff’s class action claims eliminated the ground for the court’s grant of diversity jurisdiction under the Class Action Fairness Act.” Id., at 876.

Class Action Court Decisions Class Action Fairness Act (CAFA) Removal & Remand Uncategorized

UCL Class Action Defense Cases–Marilao v. McDonald’s: California Federal Court Dismisses Class Action Alleging McDonald’s Legally Required To Redeem Gift Cards For Cash But Grants Leave To Amend Class Action Complaint

Class Action Failed to Allege Violation of California’s Unfair Competition Law (UCL) based on Merchant’s Refusal to Redeem Gift Card for Cash because California Law gives Merchant Option Whether to Redeem (So Long as Gift Card Value Less than $10) California Federal Court Holds

Plaintiff filed a putative class action in California state court against McDonald’s alleging violations of California’s Unfair Competition Law (UCL) and unjust enrichment. Marilao v. McDonald’s CORP., 632 F.Supp.2d 1008, 1009-10 (S.D. Cal. 2009). According to the allegations underlying the class action complaint, plaintiff sought “to redeem a gift card he received for cash instead of dining at McDonald’s, but was told…that he could not receive cash for his gift card.” Id., at 1010. The class action complaint further alleged that “McDonald’s gift cards provide…‘[t]he value on this card may not be redeemed for cash … unless required by law.’” Id. Defense attorneys removed the class action to federal court under the Class Action Fairness Act of 2005 (CAFA), id., at 1009-10. McDonald’s then moved to dismiss the class action for failure to state a claim, id., at 1010. The district court granted the motion and dismissed the class action with leave to amend.

With respect to the class action’s UCL claim, plaintiff alleged that McDonald’s conduct violated California Civil Code § 1749.5(b)(1), which provides that “[a]ny gift certificate sold after January 1, 1997, is redeemable in cash for its cash value, or subject to replacement with a new gift certificate at no cost to the purchaser or holder.” Marilao, at 1011. However, California Civil Code § 1448 provides, “If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation.” In this case, then, the district court reasoned, McDonald’s had the option of “either redeeming a gift card in cash for its cash value or by replacing a gift card with a new card at no cost to the purchaser or holder.” Marilao, at 1011. The statute relied upon by plaintiff does not compel a contrary finding, so McDonald’s did not violate § 1749.5(b)(1) by refusing to redeem plaintiff’s gift card for cash. Id., at 1011-12. The court stressed that the class action did not implicate § 1749.5(b)(2), added in 2007, which requires merchants to redeem gift certificates with a cash value of less than $10, id., at 1012. The federal court also agreed with defense attorneys that plaintiff lacked standing to assert the class action’s UCL claim because he had not suffered injury in fact, or lost money or property, as a result of the allegedly unfair act. Id., at 1012. The court explained at page 1013, “Plaintiff did not expend money on his gift card, as he alleges that he received it as a gift…. Plaintiff does not allege that he lost money or property, as his gift card still retains its value to redeem it for McDonald’s products. Plaintiff also does not sufficiently allege that he has been denied money to which he has a cognizable claim, as Plaintiff is not entitled to redeem his McDonald’s gift card for cash whenever presented to McDonald’s under § 1749.5(b)(1). Accordingly, the Court concludes that Plaintiff fails to sufficiently allege his standing to bring a claim under the UCL.”

Class Action Court Decisions Class Action Fairness Act (CAFA) Uncategorized

Class Action Defense Cases–Movsesian v. Victoria Versicherung: Ninth Circuit Reverses Denial Of Motion To Dismiss Class Action Holding California Statute Regarding Armenian Genocide Unconstitutional

District Court Erred in Denying Motion to Dismiss Class Action because California Statute Regarding Armenian Genocide was Preempted by Foreign Affairs Doctrine Ninth Circuit Holds

In December 2003, plaintiff filed a class action against various defendants on behalf of “persons of Armenian descent who claim benefits from insurance policies issued by” two of the defendants; the class action complaint sought damages for breach of contract and breach of the implied covenant of good faith and fair dealing, among other claims. Movsesian v. Victoria Versicherung AG, 578 F.3d 1052, 1055 (9th Cir. 2009). The class action complaint followed California’s enactment of Code of Civil Procedure section 354.4 in 2000, which “provide[d] California courts with jurisdiction over certain classes of claims arising out of insurance policies that were held by ‘Armenian Genocide victim[s]’” and which “extend[ed] the statute of limitations for such claims until December 31, 2010.” Id., at 1054. The Ninth Circuit noted that “Section 354.4 was modeled after §§ 354.5 and 354.6, which extended the statute of limitations until 2010 for Holocaust-era insurance claims and World War II slave labor claims, respectively…. Both of these sister statutes have been found unconstitutional, because they interfered with the national government’s foreign affairs power.” Id., at 1054-55 (citations omitted). Defense attorneys moved to dismiss the class action complaint on the grounds that the class members lacked standing and that Section 354.4 was unconstitutional because it “violated the due process clause of the United States Constitution and was preempted under the foreign affairs doctrine.” Id., at 1055. The district court held that the statute was not preempted and accordingly allowed certain claims in the class action to remain. Id. The Ninth Circuit reversed.

The Circuit Court summarized the case at page 1053 as follows: “Section 354.4 of the California Code of Civil Procedure extends the statute of limitations until 2010 for claims arising out of life insurance policies issued to ‘Armenian Genocide victim[s].’ [Citation.] The primary issue in this appeal is whether § 354.4 interferes with the national government’s conduct of foreign relations. We conclude that it does, and accordingly, we hold that the California statute is preempted. The district court’s order denying the Rule 12(b)(6) motion to dismiss is reversed.” After summarizing the de novo standard of review, see id., at 1055-56, the Ninth Circuit analyzed the constitutionality of § 354.4 under the foreign affairs doctrine. The Circuit Court explained at page 1056, “This case presents the issue whether § 354.4 of the California Code of Civil Procedure interferes with the national government’s power to conduct foreign affairs.” After a detailed analysis, that we do not summarize here, see id., at 1056-60, the Ninth Circuit concluded that “there is an express federal policy prohibiting legislative recognition of an ‘Armenian Genocide,’” id., at 1060. The Circuit Court next turned to whether the statute “clearly conflicts with the presidential foreign policy prohibiting legislative recognition of an Armenian Genocide,” and concluded that it did because it uses the phrase, “Armenian Genocide.” See id., at 1060-61.

Class Action Court Decisions Uncategorized

FLSA Class Action Defense Cases–Rutti v. Lojack: Ninth Circuit Affirms Defense Summary Judgment In FLSA Class Action Except As To One Claim Seeking Compensation For Postliminary Activities

District Court Properly Granted Defense Motion for Summary Judgment as to Commute Time and Preliminary Activities Time, but Issue of Fact Existed as to Whether Postliminary Activity of Daily Transmissions to Employer Warranted Compensation Ninth Circuit Holds

Plaintiff filed a putative class action against his employer, Lojack, alleging violations of the federal Fair Labor Standards Act (FLSA); specifically, the class action complaint alleged that defendant failed to compensate its installation technicians for “time they spent commuting to worksites in Lojack’s vehicles and for time spent on preliminary and postliminary activities performed at their homes.” Rutti v. Lojack Corp., Inc., 578 F.3d 1084, 1086-87 (9th Cir. 2009) (footnote omitted). According to the allegations underlying the class action, most installation and repair work was performed on location, and plaintiff was “required to travel to the job sites in a company-owned vehicle.” Id. Lojack paid its installation technicians on an hourly basis, and plaintiff was paid “for the time period beginning when he arrived at his first job location and ending when he completed his final job installation of the day.” Id., at 1086. Plaintiff alleged, however, that he was not compensated for “off-the-clock” activities that he “performed before he left for the first job in the morning and after he returned home following the completion of the last job,” and that “Lojack required technicians to be ‘on call’ from 8:00 a.m. until 6:00 p.m. Monday through Friday, and from 8:00 a.m. until 5:00 p.m. on Saturdays,” during which time they had to “keep their mobile phones on and answer requests from dispatch to perform additional jobs, but they were permitted to decline the jobs.” Id. (footnote omitted). Defense attorneys moved for summary judgment; the district court granted the motion, “holding that [plaintiff’s] commute was not compensable as a matter of law and that the preliminary and postliminary activities were not compensable because they either were not integral to [plaintiff’s] principal activities or consumed a de minimis amount of time.” Id. Plaintiff appealed, id., at 1087. The Ninth Circuit affirmed in part, agreeing that plaintiff’s commute time and preliminary activities were not compensable, but reversed and remanded with respect to plaintiff’s “postliminary activity of required daily portable data transmissions,” id., at 1086.

The Ninth Circuit first held that the time plaintiff spent commuting was not compensable. See Rutti, at 1088-93. The Circuit Court explained that, under the Employee Commuting Flexibility Act, 29 U.S.C. § 254(a)(2), an employer may require an employee to commute in a company vehicle. See id., at 1088-90. Further, the Court held that the conditions placed by defendant on plaintiff’s use of the company vehicle did not render his commute time compensable. See id., at 1090-92 (citing Bobo v. United States, 136 F.3d 1465 (Fed. Cir. 1998), and Adams v. United States, 471 F.3d 1321 (Fed. Cir. 2006)). And finally, the Ninth Circuit held that California law did not require Lojack to compensate plaintiff for his commute time in the company’s vehicle. See id., at 1092-93. Accordingly, the Circuit Court affirmed the district court’s conclusion “that [plaintiff] is not entitled to compensation for the time spent commuting to and from his job sites in a vehicle provided by Lojack under either 29 U.S.C. § 254(a)(2) or California law.” Id., at 1093.

Class Action Court Decisions Employment Law Class Actions Uncategorized

Class Action Defense Cases—In re RBS Worldpay: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Centralize Class Action Litigation In Northern District Of Georgia

Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Unopposed by Class Action Plaintiffs, and Transfers Actions to Northern District of Georgia Two class actions – one in Georgia and one in Ohio – were filed against various defendants including RBS Worldypay arising out of “an unauthorized intrusion into RBSW’s computer system.” In re RBS Worldpay, Inc., Customer Data Security Breach Litig.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases–21st Century v. Superior Court: California Supreme Court Affirms Appellate Court Order Compelling Dismissal Of Class Action Against Auto Insurer Involving Med-Pay Issues

As a Matter of First Impression, in the “Med-Pay” Automobile Insurance Context, the “Made Whole” Rule does not Include Liability for Attorney Fees California Supreme Court Holds Plaintiff filed a putative class action in California state court against auto insurance company, 21stCentury Insurance, alleging violations of the state’s Unfair Competition Law (UCL), conversion, unjust enrichment and declaratory relief. 21stCentury Ins. Co. v. Superior Court, 47 Cal.4th 511, 518-19 (Cal. 2009). According to the allegations underlying the class action complaint, plaintiff was injured in a car accident; her auto insurance policy, issued by 21stCentury, “included first party, no-fault medical payment (med-pay) insurance coverage in case of an accident,” and she received $1,000 under this provision.

Class Action Court Decisions Uncategorized

RESPA Class Action Defense Cases–Yeatman v. D.R. Horton: Eleventh Circuit Affirms Dismissal Of Class Action Holding Mere Offering Of Closing Cost Discount For Use Of Affiliated Lender Does Not Violate RESPA Or HUD Regulations

Class Action Alleging RESPA Violations by Home Builder for Offering Discount on Closing Costs for use of Affiliated Lender Properly Dismissed because Mere Offering of such an Option does not Violate RESPA or HUD Regulations Eleventh Circuit Holds Plaintiffs filed a putative class action against home builder D.R. Horton and its affiliated mortgage lender, DHI Mortgage, alleging violations of the federal Real Estate Settlement Procedures Act (RESPA). Yeatman v. D.R. Horton, Inc.

Class Action Court Decisions RESPA/TILA Class Actions Uncategorized

Class Action Defense Cases–In re Sanofi-Aventis: New York Federal Court Dismisses Securities Fraud Class Action Holding Class Action Complaint Failed To Adequately Plead Fraud Or Scienter

Class Action Complaint Alleging Securities Fraud Violations Arising from Disclosures Concerning Drug under Development Failed to State Claims under Section 10(b) of the Securities Exchange Act of 1934 or Rule 10b-5 New York Federal Court Holds Plaintiffs filed a putative class action against French pharmaceutical company Sanofi-Aventis and certain individual defendants alleging violations of the Securities Exchange Act of 1934; specifically, the class action complaint alleged that defendants misrepresented facts concerning the company’s “research activities and attempt to market a drug called ‘rimonabant’ used to treat obesity and related illnesses.

Class Action Court Decisions PSLRA/SLUSA Class Actions Uncategorized

AT&T Class Action Defense Cases–Morgan v. AT&T: California Appellate Court Reinstates Class Action Against AT&T Holding Class Action Complaint Sufficiently Alleged UCL, CLRA and Fraud To Survive Demurrer

Class Action Complaint Alleging AT&T Violated State Consumer Protection Laws Concerning Advertising of Premium Cell Phone Properly Dismissed as to False Advertising and Declaratory Relief Claims but UCL, CLRA and Fraud Claims Improperly Dismissed California Appellate Court Holds

Plaintiffs filed a putative class action against AT&T Wireless alleging violations of various state consumer protection laws; specifically, the class action complaint was “based upon AT&T‟s marketing and sale of premium cell phones that operated on a wireless network that AT&T allegedly modified in a manner that rendered those premium cell phones essentially useless.” Morgan v. AT&T Wireless Services, Inc., 177 Cal.App.4th 1235 (Cal.App. 2009) [Slip Opn., at 1-2]. According to the allegations underlying the class action, AT&T sold the Sony Ericsson T68i as a premium cell phone that “could make and receive calls around the world and had other advanced technologies”; at the time, however, AT&T knew that “it had no intention to continue to support and service the T68i” and modified its wireless system so as to render the phone “worthless.” Id., at 3. AT&T also allegedly sought to “surreptitiously ‘phase out’ these worthless premium phones without paying any compensation to the purchasers, or providing them with a new phone of equal capabilities and compatible with the changes made to their system,” id. The original class action complaint was 13 pages long and alleged violations of California’s Unfair Competition Law (UCL), False Advertising Law, Consumers Legal Remedies Act (CLRA), fraud and declaratory relief; the third amended class action complaint contained the same claims for relief but had “morphed” into a 47-page long pleading “after the trial court sustained AT&T‟s successive demurrers on the ground that the complaint lacked the requisite specificity.” Id., at 2. The trial court again sustained AT&T’s demurrer to the class action complaint because “plaintiffs’ theory of recovery [was] obscured by extraneous allegations in the third amended complaint” and because “plaintiffs still failed to identify with particularity any actionable misrepresentations made by AT&T.” Id. The Court of Appeals affirmed in part and reversed in part, sending the class action back for further proceedings.

We do not here summarize the allegations in each variation of the class action complaint. See Morgan, at 3-13. Nor do we summarize the theories underlying the class action’s claims for relief. See id., at 13-17. In ruling on AT&T’s demurrer, the trial court observed that the class action complaint “included so much extraneous matter that it was difficult to determine what plaintiffs’ theory was, and which allegations supported that theory.” Id., at 18. The trial court concluded, “In sum, no CLRA damages claim is stated because no CLRA notice was given. Plaintiffs‟ argument that pre-suit notice provided to [AT&T] as required by the CLRA may be provided 2 years into the case, with the filing of an amended complaint, is rejected. No fraud claim is stated because plaintiffs do not allege what specific misrepresentation was made to them that they relied on and were injured by. At most, a UCL or FAL claim might be found amongst the foliage, but plaintiffs have not identified where.” Id., at 19. Because plaintiffs had “failed to identify with particularity any actionable misrepresentation by AT&T” after four attempts to do so, and because plaintiffs had not identified how the class action complaint may be amended to rectify this deficiency, the trial court sustained the demurrer without leave to amend. Id.

Class Action Court Decisions Uncategorized

Class Action Defense Cases—In re Blood Reagents: Judicial Panel On Multidistrict Litigation (MDL) Grants Plaintiffs’ Motions To Centralize Class Action Litigation And Transfers Class Actions To Eastern District Of Pennsylvania

Judicial Panel Grants Plaintiffs’ Requests for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Unopposed by Class Action Plaintiffs or Common Defendants, and Transfers Actions to Eastern District of Pennsylvania Ten (10) class actions – eight in New Jersey, one in New York and one in Pennsylvania – were filed against various defendants alleging antitrust violations; specifically, the class action complaints allege “price fixing in a claimed nationwide market for blood reagent products and seek recovery under federal antitrust law” In re Blood Reagents Antitrust Litig.

Class Action Court Decisions Multidistrict Litigation Uncategorized