Class Action Defense Cases-In re Pilgrim’s Pride: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Centralize Class Actions In Western District of Arkansas

Judicial Panel Grants Defense Request, Unopposed by Plaintiffs’ Lawyers, for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 and Transfers Class Actions to Western District of Arkansas Five labor law class action lawsuits were filed against Pilgrim’s Pride alleging failure to comply with the federal Fair Labor Standards Act (FLSA). In re Pilgrim’s Pride Labor Standards Act Litig., 489 F.Supp.2d 1381, 1381 (Jud.Pan.Mult.Lit. 2007). Defense attorneys for the common defendant filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases-In re ConAgra Peanut Butter: Judicial Panel On Multidistrict Litigation (MDL) Grants Motion To Centralize Class Action Lawsuits And Selects Northern District of Georgia As Transferee Court

Judicial Panel Grants Request, Unopposed by Defense and Other Responding Plaintiffs, for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 and Transfers Class Actions to Northern District of Georgia Twenty (20) products liability class action lawsuits were filed in 13 different federal district courts against various defendants arising from the consumption of contaminated peanut butter. In re ConAgra Peanut Butter Products Liab. Litig., 495 F.Supp.2d 1381, 1381-82 (Jud.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases-Schulz v. Neovi Data: California Court Affirms Defense Judgment In Class Action As To Certain Defendants But Grants Plaintiff Leave To Amend Class Action Claims Against Other Defendants

Following Defense Judgment in Class Action Complaint for Aiding and Abetting Intentional Tort, California Court Affirms as to PayPal and Neovi Defendants but Holds Plaintiff is Entitled to Opportunity to Amend as to PaySystems and Ginix Defendants

Plaintiff filed a putative class action lawsuit in California state court against Neovi Data Corporation, Ginix, PaySystems and PayPal, alleging that they aided and abetted the operation of an illegal lottery. Schulz v. Neovi Data Corp., 152 Cal.App.4th 86, 60 Cal.Rptr.3d 810, 812-13 (Cal.App. 2007). The trial court sustained a demurrer to the second amended class action complaint without leave to amend, id., at 812. The appellate court affirmed the judgment as to Neovi and PayPal, but reversed as to Ginix and PaySystems, concluding that plaintiff should be given an additional opportunity to amend the class action complaint in an effort to state a claim against those defendants, id., at 812-13.

The second amended class action complaint alleged that defendant EZ Expo operated an Internet site that purportedly provided consumers the chance to “receive expensive electronic products for a fraction of the price” but requires that participants “pay[] a fee to enter a ‘matrix’” and that other consumers “join the ‘matrix’ after him.” Schulz, at 813. The class action alleged that to get a $5500, 50-inch plasma television at EZ’s website, a consumer “enters the plasma television matrix by purchasing the required three ‘E-books’ for $150” and their name is then “placed on the list of those eligible to receive the television.” Id. According to the class action complaint, “[W]hen 50 persons have each paid $150, the first person to enter will receive the plasma television ‘for free’ and his name is removed from the list.” Id. The appellate court explained at page 813 that once a participant gets the TV then “the second name on the list moves to the top and 50 more people need to enter for that person to receive the television.” Plaintiff alleged further that EZ “encourage[d] participants to recruit others to enter the matrix.” Id. The complaint alleged that the E-books themselves have “minimal” value and that EZ sold millions of dollars in E-books. Id.

Certification of Class Actions Class Action Court Decisions Uncategorized

Tobacco Class Action Defense Cases-In re Tobacco Cases: California Supreme Court Holds That Federal Law Preempts State Unfair Competition Law (UCL) Class Action Against Tobacco Companies

Class Action Against Tobacco Companies Alleging UCL Claims for Marketing Cigarettes to Minors is Preempted by Federal Cigarette Labeling and Advertising Act (FCLAA) California Supreme Court Holds In 1994, the California Supreme Court held that a lawsuit against tobacco companies alleging violations of the state’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code, § 17200 et seq., was not preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA). See Mangini v.

Class Action Court Decisions Uncategorized

CAFA Class Action Defense Cases-Falcon v. Philips Electronics: New York District Court Holds Plaintiff’s Lawyer Not Entitled To Go “Fishing” For New Class Representative And Dismisses Class Action For Lack Of Jurisdiction

After Denying Motion to Certify Class Action on Grounds that Named Plaintiff would be an Inadequate Class Representative, New York District Court Denies Plaintiff’s Lawyer Leave to Conduct Discovery to Identify New Class Representative and Dismisses Class Action Because Subject Matter Jurisdiction Under Class Action Fairness Act of 2005 (CAFA) no Longer Existed

Plaintiff filed a putative class action against Philips Electronics alleging design defects in certain television models that caused them to require repair after the expiration of the express warranty period; federal court jurisdiction existed solely because of the Class Action Fairness Act (CAFA). Falcon v. Philips Electronics North Am. Corp., 489 F.Supp.2d 367,368 (S.D.N.Y. 2007). Plaintiff moved the district court for an order certifying the litigation as a class action; the district court denied the motion, agreeing with defense attorneys that plaintiff was not an adequate representative of the class. Id. Plaintiff’s lawyers then sought further discovery in an effort to find an adequate representative of the class, id. The district court denied the motion and dismissed the class action for lack of jurisdiction.

The district court order refusing to certify a class action turned on the fact that the sole named plaintiff “could not be an adequate class representative, because, among other problems, she did not actually purchase the television in question and because after receiving it, she subsequently discarded it.” Falcon, at 368. Plaintiff’s lawyer sought discovery of the names of customers who complained about the television models identified in the class action complaint “in the hope that that will lead to identification of an adequate class representative.” Id. The district court refused to reopen discovery so plaintiff’s lawyer could go “fishing” for a new class representative, explaining at page 369:

Certification of Class Actions Class Action Court Decisions Class Action Fairness Act (CAFA) Uncategorized

Home Depot Class Action Defense Case-Kitzes v. Home Depot: Illinois Court Holds Denial Of Class Action Was Not Improper Because Individual Issues Would Predominate Over Common Questions Of Fact

Class Action Complaint Alleging Damages from Sale of CCA-Treated Wood did not Warrant Class Action Treatment as Defense Showed Individual Defenses and Individual Damage Analyses would Predominate over Fact Questions Common to Class Illinois Court Holds

Plaintiffs filed a putative class action in Illinois state court against Home Depot alleging violations of the state’s unfair and deceptive business practices statutes arising out of its sale of outdoor products made with wood treated with chromate copper arsenate (CCA) on the theory that “all CCA-treated wood is defective because it leaches toxic chemicals, such as arsenic and chromium VI to the surface of the wood and to nearby soil.” Kitzes v. Home Depot, U.S.A., Inc., 872 N.E.2d 53, Slip Opn., at 1 (Ill.App. June 28, 2007). Plaintiffs’ moved the trial court to certify the litigation as a class action; defense attorneys opposed class action treatment. The appellate court affirmed.

The class action complaint alleged that Home Depot misrepresented that CCA-treated wood was safe for outdoor use. Kitzes, at 1-2. Plaintiffs’ class action certification motion was supported by an expert declaration claiming “a reasonably high degree of scientific certainty that CCA-treated wood used in outdoor settings leaches arsenic to the surface of the wood and the surrounding soil, regardless of factors such as use, location, age and sealant history (except for very recently sealed surfaces),” and an expert declaration that “proposed methodology for calculating the removal and replacement costs associated with pressure-treated lumber in residential settings in multiple states.” Id., at 2. Among the pieces of evidence submitted against class action treatment, defense attorneys introduced plaintiffs’ deposition testimony (1) that they still used the CCA-treated wood deck, and had wood replaced and treated several times, (2) that no one told them that the CCA-treated wood deck diminished the value of their property, and (3) that they had a fence built with wood that had been treated with arsenic. Id., at 2-3. Defense attorneys also submitted press releases from the Environmental Protection Agency concerning the industry’s decision to stop using CCA-treated wood, and stating:

Certification of Class Actions Class Action Court Decisions Uncategorized

Class Action Defense Cases-In re Farmers Insurance Exchange: Ninth Circuit Rejects “$3,000 Rule” Created By District Court In FLSA Class Action

In Class Action Alleging Violations of Federal Fair Labor Standards Act (FLSA), $3,000 Rule Crafted by District Court as Exception to Overtime Pay Lacked Support in Record and was Unworkable in Practice Ninth Circuit Holds

Plaintiffs, former and current insurance claims adjusters for Farmers Insurance Exchange, filed a class action against their employer alleging that they were misclassified as exempt employees and denied overtime pay in violation of the federal Fair Labor Standards Act (FLSA). In re Farmers Ins. Exch., Claims Representatives’ Overtime Pay Litig., 481 F.3d 1119, 1124 (9th Cir. 2007). The district court established a “$3,000 in claims paid per month” rule and, applying that test, concluded that some of the claims adjusters were exempt but others were not. Id. Before the Ninth Circuit, all parties agreed that the district court’s $3,000 rule “is neither workable nor supported by the evidence.” Id. The Circuit Court agreed, holding that “all of the adjusters in this case are exempt,” id. The Ninth Circuit stated that “For more than 50 years, the Department of Labor has considered claims adjusters exempt from the Fair Labor Standard Act’s overtime requirement.” Id.

For purposes of this article, we address solely the “$3,000 rule” creatively crafted by the district court. On this point, the Ninth Circuit concluded that the district court’s rule not only “lack[ed] support in the record,” but is “simply unworkable in practice.” In re Farmers, at 1132. The Circuit Court explained at page 1132,

Class Action Court Decisions Employment Law Class Actions Uncategorized

Class Action Defense Cases-In re Wells Fargo: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Centralize Two Class Action Lawsuits But Selects Northern District of California As Transferee Court

Judicial Panel Grants Defense Request, Over Plaintiffs’ Objection, for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 and but Rejects Defense Request to Transfer Class Actions to District of Kansas Two class action lawsuits were filed against Wells Fargo, one in California and one in Kansas, alleging labor law violations based on the company’s alleged failure to pay overtime to its loan processors. In re Wells Fargo Loan Processor Overtime Pay Litig.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Microsoft Class Action Defense Case-Odom v. Microsoft: Ninth Circuit Overrules Prior Circuit Law Defining “Enterprise” Under RICO And Reverses District Court Order Dismissing Class Action Complaint

Ninth Circuit Holds that Prior Case Law Concerning “Enterprises” under Racketeer Influenced and Corrupt Organizations Act (RICO) is Confusing and Inconsistent with Supreme Court Authority, Overrules Prior Authority and Under new Standard Reverses Dismissal of RICO Class Action

Plaintiffs filed a putative class action against Microsoft and Best Buy alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) based on an agreement under which Microsoft paid Best Buy to promote MSN Internet service. Odom v. Microsoft Corp., 486 F.3d 541, 543 (9th Cir. 2007). Defense attorneys moved to dismiss the class action complaint under Rule 12(b)(6) because it did not “allege an ‘associated in fact’ ‘enterprise’ under RICO” and under Rule 9(b) because it did not “plead wire fraud with particularity,” id. The district court agreed, dismissing the class action without leave to amend. Id. The Ninth Circuit reversed.

The putative RICO class action alleged that Microsoft and Best Buy agreed that Microsoft would invest $200 million in Best Buy and to promote Best Buy through its MSN Internet service, that Best Buy in turn would promote MSN and other Microsoft products. Odom, at 543. Best Buy allegedly gave customers different MSN trial software depending in the product purchased, and scanned debit/credit card information with the trial software not for “inventory control” (as purportedly represented to customers) but so Microsoft would have billing information for customers who failed to cancel their trial subscriptions to MSN. Id. Specifically, plaintiff alleged that he purchased a laptop computer from Best Buy and told the company that he did not need the MSN trial software because he used another Internet service, that he never used the MSN software during the 6-month trial period following his purchase, and that after 6 months MSN began charging the credit card he used to purchase the laptop for Internet service. Id., at 543-44. Plaintiff telephoned Microsoft and canceled the service, id., at 544. The putative class action was transferred to the Western District of Washington pursuant to the MSN subscriber agreement where plaintiff amended the complaint to include an additional plaintiff who, following the purchase of a cell phone from Best Buy and receiving a 30-day MSN trial CD, found that MSN had been billing her debit card for 1½ years without her knowledge or consent. Id.

Class Action Court Decisions Uncategorized

FDCPA Class Action Defense Case-Griffith v. Javitch: Ohio Federal Court Holds Pre-Certification Notice To Putative Class Of Dismissal Of Class Action Not Required Because No Evidence Of Reliance Or Prejudice

Dismissal of Class Action Alleging Violations of Federal Fair Debt Collection Practices Act (FDCPA) did not Warrant Notice to Absent Members of Putative Class because no Evidence of Reasonable Reliance on Prosecution of Class Action Ohio Federal Court Holds

Plaintiff/debtor filed a putative class action against attorneys for a creditor alleging that the law firm’s collection efforts violated the federal Fair Debt Collection Practices Act (FDCPA). Defense attorneys successfully moved to dismiss plaintiff’s claims in her class action complaint on the ground that she lacked standing to prosecute claims that now belonged to the bankruptcy trustee, and the federal court rejected plaintiff’s effort to bar the bankruptcy trustee from settling with the defense. Thereafter, the bankruptcy trustee “acting in good faith on behalf of the estate’s creditors, negotiated a settlement with Defendants”; however, the district court agreed with plaintiff/debtor that “notice of the involuntary dismissal should be given to the putative class members, because some risk existed that those class members would be prejudiced by the expiration of the statute of limitations later this year.” Griffith v. Javitch, Block & Rathbone, LLP, 241 F.R.D. 600, 601 (S.D. Ohio 2007). Plaintiff filed her proposed notices and requested that defendant be ordered to pay for the notice; defense attorneys moved the court to reconsider its order requiring notice to putative class members, id. The court granted the defense motion, holding that notice need not be provided to putative class members.

Preliminarily, the federal court found that the proposed notices prepared by plaintiff’s counsel were “clearly inadequate” and that they “simply invite contact with Plaintiff’s counsel.” Griffith, at 601. The court further stated that it would not order defendant to pay the costs of the notice, noting that as a general rule in class actions the plaintiff is responsible for the costs associated with notices to the class, especially when the court has not yet ruled on the merits of any claim alleged in the class action complaint id.

Class Action Court Decisions FDCPA Class Actions Uncategorized