Class Action Defense Cases-Battaglia v. DirectRevenue: California Federal Court Grants Joint Defense/Plaintiff Motion For Certification Of Class Action And For Final Approval Of Class Action Settlement

California Court Holds that Proposed Class Action Settlement Warranted Court Approval and Grants Defense/Plaintiff Request to Certify Class Action for Purposes of Settlement Plaintiffs filed a putative class action against DirectRevenue and The Best Offers Network (formerly BetterInternet) arising out of targeted advertising software downloaded onto computers through ActiveX installations that did not require the affirmative consent of computer users. Battaglia v. DirectRevenue, LLC, ___ F.Supp.2d ___, 2006 WL 3654095 (E.

Class Action Court Decisions Uncategorized

Brown v. Bank of America Class Action Defense Case: Defense Entitled To Summary Judgment On Electronic Funds Transfer Act (EFTA) And State Consumer Protection Law Class Action Claims Massachusetts Federal Court Holds

Massachusetts Federal Court Agrees with Defense that Class Action Complaint Failed to Prove Damages under EFTA (Electronic Funds Transfer Act) and State Consumer Protection Law Claims Because ATM Users Expressly Consented to Fee Charged and Because Bank of America did not Always Charge Non-Customers the Fee

Plaintiff filed a putative class action in Massachusetts federal court against Bank of America alleging that notices posted by the bank on its ATM machines in California, Maryland, Massachusetts and Rhode Island violated the federal Electronic Funds Transfer Act, 15 U.S.C. § 1693 (EFTA), as well as certain state consumer protection laws. Brown v. Bank of America, N.A., 457 F.Supp.2d 82, 84-85 (D. Mass. 2006). In part, plaintiffs complained that the Bank advised non-customers that it “may” charge them a fee when, in point of fact, it always charged them a fee (and thus should have disclosed that it “will” charge the fee). Defense attorneys moved for summary judgment on the state law claims and for partial summary judgment on the federal law claim. Id. The district court granted the defense motion as to the state law claims, and also agreed with defense attorneys with respect to the “verb choice” argument under the EFTA claim.

The genesis of the class action complaint is that while Bank of America permits its customers to use its ATMs for free “most, but not all, non-customers seeking to withdraw money from a Bank of America ATM must pay a small fee to the bank for the service.” Brown, at 84. The Bank gives notice of the fee in two ways. First, it posts decals on each ATM that states, in part, the Bank “may charge a $1.50 fee for a cash withdrawal from your NON-Bank of America account.” Id., at 84-85. Second, as part of the on-screen “click-through” process, the Bank requires users to affirmatively consent to the fee. Id., at 85. The class action complaint alleged that the Bank’s notice violated federal law because the regulations governing the EFTA require “notice that a fee will be imposed for providing electronic fund transfer services or a balance inquiry” and disclosure of the amount of the fee. Id., at 86 (quoting 12 C.F.R. § 205.16(b) (2005) (Regulation E)). This “improper notice” also underlies the state consumer protection law violations.

Class Action Court Decisions Uncategorized

Williams v. Mohawk Industries Class Action Defense Case: Class Action RICO Claims Cognizable For Allegedly Willful Hiring Of Illegal Workers But That State Law Unjust Enrichment Claims Fail Eleventh Circuit Holds

Eleventh Circuit Joins Sister Circuits in Holding that Knowingly Hiring Illegal Aliens to Lower Labor Costs Satisfies RICO Class Action Claims at Pleading Stage But Agrees with Defense that State Law Unjust Enrichment Claims Must be Dismissed

A class action alleging federal and state RICO (Racketeer Influenced and Corrupt Organizations Act) violations was filed in Georgia federal court by current and former hourly employees against Mohawk Industries – “the second largest carpet and rug manufacturer in the United States . . . [with] over 30,000 employees” – alleging that it knowingly hired and harbored illegal aliens in order to lower labor costs and to discourage workers’ compensation claims. Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1280, 1282 (11th Cir. 2006). The defense filed a 12(b)(6) motion to dismiss, which the federal court granted in part. Id., at 1280-81. Specifically, the district court denied the defense motion to dismiss the federal and state RICO class action claims, as well as the state law unjust enrichment claim based on the payment of lower wages to legal workers because of the availability of illegal workers willing to work for less money. Id., at 1282. But the court granted the defense motion to dismiss the unjust enrichment class action claim that was based on the alleged discouragement of workers’ compensation filings. Id. The Eleventh Circuit granted plaintiffs’ request for interlocutory review and, after a circuitous route, affirmed in part and reversed in part.

The class action complaint alleged that Mohawk intentionally hired illegal aliens in violation of federal law, transported them to Mohawk’s facilities and provided them with living accommodations “in an effort to keep labor costs as low as possible.” Williams, at 1281-82. The complaint further alleged that Mohawk engaged in affirmative steps to conceal the illegal workers from law enforcement. Id., at 1282. This practice permitted Mohawk to reduce wages paid to legal workers thereby “sav[ing] substantial sums of money,” id. The complaint alleged further, “Mohawk knows that illegal workers are less likely to file worker’s-compensation claims, and, therefore, Mohawk is able to save additional monies.” Id. Defense attorneys filed a motion to dismiss; as noted above, the district court denied the motion as to the RICO claims, and as to the lower wages-unjust enrichment claim, but granted the motion to dismiss as to the workers’ compensation unjust enrichment claim on the grounds that the plaintiffs lacked standing to assert the claim.

Class Action Court Decisions Uncategorized

Class Action Defense Cases-In re African-American Slave Descendants: Seventh Circuit Affirms Dismissal Of Class Action Alleging Corporate Complicity With Slavery But Reinstates Consumer Protection State Law Class Action Claims

Circuit Court of Appeal Agrees Federal District Court Lacked Jurisdiction Over Section 1982 Class Action Claims But Holds it Should Have Dismissed Claims Without Prejudice and Further Holds that Consumer Protection Class Action Claims Based on State Law – Over Which the Court had Supplemental Jurisdiction – Were Adequately Pleaded for Purposes of Motion to Dismiss

A total of ten (10) class action lawsuits were filed against various corporations “seeking monetary relief under both federal and state law for harms stemming from the enslavement of black people in America.” In re African-American Slave Descendants Litig., ___ F.3d ___, 2006 WL 3615027 (7th Cir. December 13, 2006) [Slip Opn., at 1]. The Judicial Panel for Multidistrict Litigation (MDL) transferred the actions to the Northern District of Illinois for pretrial purposes pursuant to 28 U.S.C. § 1407, , where all plaintiffs but one filed a consolidated class action complaint. _Id._, at 1-2. Defense attorneys moved to dismiss the class action complaints; the district court granted the motion to dismiss based on the political-question doctrine, lack of standing and thus lack of federal jurisdiction, the expiration of the statutes of limitation, and failure to state a claim. _Id._, at 5. Surprisingly, the Seventh Circuit reversed.

The Seventh Circuit summarized that “[t]he suits are a series of mostly identical class actions on behalf of all Americans descended from slaves with whom one or more of the defendants or their corporate predecessors may have been directly or indirectly involved.” Slip Opn., at 3. The Circuit Court further summarized the class action allegations as follows: “The defendants are companies or the successors to companies that provided services, such as transportation, finance, and insurance, to slaveowners. At least two of the defendants were slaveowners; the predecessor of one of the bank defendants once accepted 13,000 slaves as collateral on loans and ended up owning ,1250 of them when the borrowers defaulted, and the predecessor of another defendant ended up owning 346 slaves, also as a consequence of a borrower’s default. Even before the Thirteenth Amendment, slavery was illegal in the northern states, and the complaint charges that the defendants were violating the laws of those states in transacting with slaveowners. It also claims there were occasional enslavements long after the passage of the Thirteenth Amendment and that some of the defendants were complicit in those too. By way of relief, the complaint seeks disgorgement to the class members of the profits that the defendants obtained from their dealings with slaveowners.” Id., at 4.

Class Action Court Decisions Uncategorized

Edwards v. City of Long Beach Class Action Defense Case: California Federal Court Denies Defense Motion To Certify Class Action But Grants Collective Action Status Under § 216(b) of the Federal Fair Labor Standards Act (FLSA)

California Court Rejects Defense Arguments Against Collective Action for Alleged Violations of FLSA (Fair Labor Standards Act) but Agrees with Defense that Class Action is not Superior Device for Litigating State Employment Law Claims and Denies Class Action Status to Claims Based on California Labor Code, Over Which it had Supplemental Jurisdiction, as Inconsistent with “Opt-In” Requirements for FLSA Collective Action

Plaintiff, former Long Beach police officer, filed a putative class action against the City of Long Beach for alleged violations of the federal Fair Labor Standards Act (FLSA) and of California’s Labor Code sections 226.7, 512 and 2802 based on the allegations that he was denied meal and rest breaks and was not properly reimbursed for business expenses while a police officer. Edwards v. City of Long Beach, ___ F.R.D. ___ (C.D. Cal. December 15, 2006) [Slip Opn., at 2-3.] The thrust of the class action complaint asserted that while police officers kept track of, and received pay for, overtime hours worked, no policy or procedure existed for officers to record or report missed meal and rest periods. _Id._, at 2-3. Further, while officers were required to have clean and functional uniforms and equipment, the City did not reimburse class members for the costs incurred in maintaining those items. _Id._, at 3. Plaintiff filed two motions in the district court: one requested certification of the lawsuit as a class action under Rule 23, _id._, at 7, which defense attorneys opposed on the grounds that the numerosity, commonality and typicality requirements are not met, a class action will not benefit the class, and other alternatives exist rather than class action litigation, _id._, at 8; the second sought certification of a collective action under 29 U.S.C. § 216(b), _id._, at 1, which defense attorneys opposed by focusing on the differences in job duties between the plaintiff and other class members, _id._, at 6. The district court refused to certify a class action under Rule 23, but granted the motion to certify a collective “opt-in” action under § 216(b), _id._, at 1.

In granting the motion to certify a collective action (in essence an “opt-in” class action) under § 216(b) of the FLSA, the federal court explained that “employees wishing to join the suit must ‘opt-in’ by filing a written consent with the court” or else they are not bound by any judgment or settlement. Edwards, at 4. In a majority of jurisdictions, certifying such a collective action requires a two-step process: “the first step is for the court to decide, ‘based primarily on the pleadings and any affidavits submitted by the parties, whether the potential class should be given notice of the action,'” id., at 5 (citations omitted); the court found that the “lenient standard” required to overcome this hurdle had been met. Id., at 5-7. The second step in the process is a motion by defense attorneys to decertify the class action, id., at 7; but the district court explained that it does not address that issue until after the opt-in time period has passed, id. The court rejected defense arguments that a collective action was inappropriate because of the differences in job duties between the plaintiff and other class members, id., at 6, explaining that – even though the defense had presented a “detailed analysis” of those differences, together with a “detailed discussion” of the differences in claims that potential class members may assert – the defense arguments were “better suited for motion to decertify the § 216(b) collective action,” id., at 7.

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

Class Action Defense Cases-Smith v. Illinois Central Railroad: Illinois Supreme Court Agrees With Defense That Class Action Status Should Not Have Granted In Lawsuit Arising From Train Derailment

Factual and Legal Issues Arising from Train Derailment Would Require Individual Minitrials Thereby Rendering Class Action Treatment Inappropriate Illinois Supreme Court Holds

Plaintiffs filed a class action in Illinois state court against Illinois Central Railroad seeking damages allegedly caused by the derailment of a train in Tamaroa, Illinois. Smith v. Illinois Central RR Co., ___ N.E.2d ___, 2006 WL 3491683 (Ill. November 30, 2006) [Slip Opn., at 1.]. The trial court granted plaintiffs’ request to certify the lawsuit as a class action; the appellate court rejected defense arguments and affirmed. _Id._ The Illinois Supreme Court, however, granted the defense leave to appeal and reversed the lower courts. _Id._, at 1-2. The High Court agreed with defense attorneys that common issues of law and fact do not predominate, thus rendering the lawsuit unsuitable for class action treatment. “Proof of proximate causation and damages will be highly individualized and will consume the bulk of the time at trial.” _Id._, at 14.

In February 2003, the derailment in Southern Illinois of a train carrying various chemicals led to the mandatory evacuation of at least 1000 people. Slip Opn., at 2. Shortly thereafter, the railroad instituted a claims process through which it compensated individuals and businesses for alleged losses caused by the derailment and evacuation; in return, the railroad received written releases of liability from all known claims. Id. In June 2003, plaintiffs initiated a class action seeking (as detailed in the Note below) damages for injuries resulting from the derailment and evacuation. Id., at 2-3. The circuit court rejected defense arguments against certification of the lawsuit as a class action, and granted plaintiffs’ motion. Id., at 3. Before the appellate court, defense attorneys advanced several arguments including, (a) mass tort actions are not proper for class action treatment “because such actions would trigger an unworkable array of fact-intensive, claimant-specific questions that would inevitably result in numerous minitrials that defy class treatment”; (b) commonality does not exist as common questions of fact and law do not predominate; (c) the class definition was overly broad and would require individualized analyses to determine membership. Id., at 4-5. The appellate court, over a dissent, rejected each argument and affirmed the judgment authorizing class certification.

Certification of Class Actions Class Action Court Decisions Uncategorized

Class Action Defense Cases-In re Fosamax: Over Defense Objection Judicial Panel On Multidistrict Litigation (MDL) Grants Motion To Centralize Class Action Litigation In The Southern District of New York

Judicial Panel Rejects Defense Opposition to Motion for Pretrial Coordination Pursuant to 28 U.S.C. § 1407 and Grants Motion for Centralization of Class Action Lawsuits in the Southern District of New York After 19 products liability lawsuits – many of them class action proceedings – were filed against various pharmaceutical companies arising out of the use of Fosamax, a prescription drug manufactured by Merck and used in the treatment of osteoporosis, several plaintiffs’ lawyers (apparently supported by plaintiffs in all pending actions) moved the Judicial Panel on Multidistrict Litigation (MDL) pursuant to 28 U.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases-In re Digital Music: Judicial Panel On Multidistrict Litigation (MDL) Grants Joint Plaintiff/Defense Motion To Centralize Class Action Litigation In The Southern District of New York

Judicial Panel Finds Good Cause for Centralization of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 as Requested by Defense and Plaintiffs Nine class action lawsuits were filed against Sony BMG Music Entertainment, Sony Corporation of America, Bertelsmann Music Group, Inc., Bertelsmann, Inc., Universal Music Group, Inc., Time Warner Inc., Warner Music Group Corp. and EMI Music North America (defendants), alleging “on behalf of purported classes of indirect purchasers, that the various defendants illegally conspired to artificially fix or maintain the prices of digitally formatted music offered for sale on the internet in violation of 1) Section 1 of the Sherman Act, 15 U.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases-In re Series 7: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense and Plaintiff Motions To Centralize Class Action Litigation In The District of the District of Columbia

Judicial Panel Agrees With Defense and Plaintiff Lawyers that Class Action Lawsuits Warranted Centralization for Pretrial Coordination Pursuant to 28 U.S.C. § 1407 Nine class action lawsuits were filed across the United States against the National Association of Securities Dealers (NASD) and Electronic Data Systems Corp., among others, alleging “breach of contract, negligence, negligent misrepresentation, defamation, and tortious interference with contract and/or business relationships” arising out of “errors in scoring the Series 7 Broker Qualification Exam, a computerized qualifying test required for anyone employed by a securities firm that wishes to register individuals as general securities representatives dealing with the public.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Alexander v. JBC-Class Action Defense Cases: Montana Court Rejects Defense Objections To Certification Of Class Action Alleging Violations Of Federal Fair Debt Collection Practices Act (FDCPA)

Class Action Alleging FDCPA (Fair Debt Collection Practices Act) Violations Based on Form Letters Sent to Debtors Warranted Class Certification Montana Federal Court Holds, Rejecting Defense Argument that Plaintiff’s Statute of Limitations Defense to Debt Collection Defeated Predominance Requirement of Rule 23(b)(3)

Plaintiff filed a putative class action against a debt collector seeking to collect on dishonored checks for alleged violations of the Fair Debt Collection Practices Act (FDCPA) based on letters sent to debtors that demanded fees not authorized by state or federal law. Alexander v. JBC Legal Group, P.C., 237 F.R.D. 628, 629 (D. Mont. 2006). Plaintiff’s lawyer moved for certification of the class action; defense attorneys opposed the motion arguing that the numerosity requirement of Rule 23(a) is not met and that plaintiff’s statute of limitations defense defeats certification under Rule 23(b)(3).

In 2004, defendant JBC Legal Group sent a letter to plaintiff seeking to collect $6.07 for a dishonored check that had been written more then 12 years earlier. Alexander, at 629. “The letter demanded that Alexander remit to Defendants $46.07 and stated that he would be subject to a penalty of triple the amount of the check, or $100.00, whichever was greater, if he failed to make payment within thirty days.” Id. A month later, defendant sent plaintiff a letter demanding $146.07. Id. Several months later, defendant sent plaintiff another letter demanding $146.07. Id.

Class Action Court Decisions FDCPA Class Actions Uncategorized