Philip Morris Class Action Defense Case-Price v. Philip Morris: U.S. Supreme Court Denies Petition For Writ Of Certiorari

Illinois Supreme Court Decision Reversing Billion Dollar Class Action Award Against Tobacco Giant Now Final The Philip Morris defense team secured victory in the Illinois class action involving the sale of “light” cigarettes today when the United States Supreme Court denied the petition for writ of certiorari filed plaintiffs’ attorneys. Price v. Philip Morris Inc., ___ U.S. ___, 2006 WL 2843774 (November 27, 2006). The class action originated in 2000, when plaintiffs filed a class action lawsuit in Illinois state court alleging violations of the Consumer Fraud Act and the Deceptive Practices Act based on the packaging, marketing, promotion and sale of “light” cigarettes as having less tar and nicotine than “regular” cigarettes.

Class Action Court Decisions Uncategorized

Sears Class Action Defense Case-Santamarina v. Sears: Seventh Circuits Holds Class Action Not Removable By Defense Because Under California Law Amendments To Class Action Complaint Related Back To Original Filing

Error in Refusing to Remand Class Action is not Jurisdictional Error but Defense Improperly Removed Class Action under CAFA (Class Action Fairness Act of 2005) Because Amendments to Complaint Related Back Original Filing Which Predated CAFA’s Effective Date

In January 2005, prior to the effect date of the Class Action Fairness Act of 2005 (CAFA), plaintiff filed a barebones class action in California state court against Sears alleging false representations that certain Craftsman tools are made in the U.S. when they are manufactured abroad. Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571 (7th Cir. 2006). Defense attorneys demurred, and plaintiff’s lawyer filed an amended complaint after CAFA became effective. The defense then removed the class action to federal court arguing that the amended complaint did not relate back and was therefore removable under CAFA. The California federal court denied plaintiff’s motion for remand and plaintiff did not appeal that ruling. However, after the Judicial Panel on Multidistrict Litigation (MDL) transferred the case to Illinois, plaintiff asked the district court to reconsider the California court’s ruling. The Illinois federal court held that the defense removal had been improper and remanded the class action to California state court. Id. Sears appealed, and the Seventh Circuit Court of Appeals affirmed.

Sears first argued that the Illinois federal court should not have reconsidered the ruling of the California federal court. Santamarina, at 571-72. The Seventh Circuit disagreed, explaining that a court has inherent power to reconsider prior rulings in the same lawsuit, even the rulings of a different judge, “if there is a compelling reason, such as a change in, or clarification of, law that makes clear that the earlier ruling was erroneous.” Id., at 572. The Circuit Court reasoned at page 572, “Not to reconsider in such circumstances would condemn the parties to the unedifying prospect of continued litigation when they knew that a possibly critical ruling was in error and, unless it became moot in the course of the proceedings, would compel a reversal of the final judgment at the end of the case.” The Court of Appeals was critical of plaintiff’s delay in seeking reconsideration “almost 15 months since the case was removed to the federal court and 13 months since it was transferred to Chicago,” but held that “some latitude” was warranted because the class action was removed and remand denied “only a few months after the promulgation of the Class Action Fairness Act.” Id.

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

In re Vioxx Class Action Defense Cases: Louisiana Federal Court Hands Merck Defense Crucial Victory By Denying Motion To Certify Nationwide Class Action Involving Vioxx

Federal Court Agrees with Defense that Vioxx Class Action Claims Lack Typicality and Fail to Satisfy Predominance and Superiority Requirements of Rule 23(b)

The Vioxx litigation against Merck – consisting of thousands of individual and numerous class action lawsuits filed in state and federal courts – is well known. Merck withdrew Vioxx from the market in September 2004, following clinical reports that Vioxx led to an increased risk of heart attacks and strokes. By that time, however, an estimated 20 million people had used the prescription drug. The individual and class action lawsuits assert various tort and products liability claims against Merck. In February 2005, the Judicial Panel for Multidistrict Litigation transferred the cases to the federal court for the Eastern District of Louisiana, Judge Eldon Fallon, for pretrial proceedings. In re Vioxx Products Liab. Litig., ___ F.Supp.2d ___ (E.D. La. November 22, 2006) [Slip Opn., at 1-2]. Plaintiffs moved for certification of a nationwide class action against Merck; defense attorneys opposed the motion on two grounds: (1) that each claim must be litigated under the substantive law of each class members’ respective state (rather than New Jersey law, as plaintiffs’ claimed) thus defeating commonality of law, and (2) that each claim “involves separate and distinct factual issues.” _Id._, at 6. On November 22, 2006, the district court agreed with Merck’s defense team and refused to certify a nationwide Vioxx class action.

Merck secured FDA approval for the sale of the prescription drug Vioxx in May 1999 for relief of pain caused by osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. In re Vioxx, at 1. Following centralization by the Judicial Panel, the Plaintiffs Steering Committee filed a Master Class Action Complaint alleging that Vioxx was defective, that Merck misrepresented its safety in that it knew or should have known that Vioxx was unsafe, and that Vioxx caused medical problems, injury and death. Id., at 4. In December 2005, plaintiffs moved to certify a nationwide class action under Rule 23(b)(3) consisting of all U.S. residents who used Vioxx and who claim personal injuries or assert wrongful death claims arising from such use, id. Merck opposed the motion on the grounds summarized above, see id., at 6.

Certification of Class Actions Class Action Court Decisions Uncategorized

Miller v. Bank of America Class Action Defense Case: Billion Dollar Class Action Judgment Reversed As California Court Agrees With Defense That Banks May Apply Funds From Government Benefit Deposits To Cover Overdraft Fees Connected With The Same Account

California Court Holds that Kruger v. Wells Fargo Bank does not Apply to Offsets of Government Benefits Against Overdraft and Other Fees Incurred in Connection with the Same Deposit Account

Plaintiff filed a class action in California state court against Bank of America alleging inter alia violations of the state’s Consumer Legal Remedies Act (CLRA) and Unfair Competition Law (UCL) arising out of the bank’s use of Social Security disability benefits directly deposited into a Bank of America checking account to offset overdraft charges. Miller v. Bank of America, NT & SA, 144 Cal.App.4th 1301 (Cal.App. November 20, 2006) [Slip Opn., at 1-2]. Defense attorneys argued that banks may lawfully apply government benefit deposits against overdraft and other fees connected with the same account. The trial court, however, agreed with plaintiff’s lawyer that Kruger v. Wells Fargo Bank, 11 Cal.3d 352 (Cal. 1974), which held that banks may not use public benefit funds deposited in one bank account to offset “an account holder’s delinquent but separate credit card account,” bars banks from using government benefits to offset any funds owed the bank. Id. The California Court of Appeal framed the issue as follows: “Does a bank act illegally if when balancing customer accounts, it credits for Social Security benefits and other public benefit payments directly deposited to its customers’ checking accounts to cover debits for overdraft and overdraft fees?” Id. In reversing the trial court, the appellate court summarized its holding as follows: “In this case, the trial court applied Kruger to prohibit [the Bank] from collecting for overdrafts and fees by debiting directly deposited Social Security and other public benefit payments. This application of Kruger is an extension of its holding that is unwarranted in light of significant differences between the banker’s setoff addressed in Kruger and the facts of this case.” Id.

The case arose from a bank error in posting an $1800 credit to plaintiff’s account. The bank discovered its error and reversed the credit, causing plaintiff’s account to be substantially overdrawn. After a Social Security payment was deposited directly into plaintiff’s checking account, “it was automatically balanced against the larger overdraft to reduce his negative balance.” Miller, at *1-*2. When plaintiff complained the bank reversed the debit. Future direct deposits from Social Security that the bank credited against the overdraft balance were also reversed when plaintiff complained. Id., at *2. Plaintiff filed his class action lawsuit against the bank alleging numerous causes of action including intentional and negligent misrepresentation, intentional infliction of emotional distress, unlawful levy of Social Security benefits, and violations of California’s CLRA, UCL and False Advertising Act (FAA). The trial court granted summary adjudication in favor of the defense on the intentional infliction of emotional distress and unlawful levy claims, but the remaining causes of action proceeded to trial. Id. It certified a class consisting of more than 1 million members defined as California residents with “a checking or savings deposit account with Bank of America into which payments of Social Security benefits or other public benefits are or have been directly deposited by the government or its agent.” Id., at *3.

Class Action Court Decisions Uncategorized

Class Action Defense Cases-In re InPhonic: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Centralize Class Action Litigation In The District of the District of Columbia

Judicial Panel Grants Unopposed Defense Request for Pretrial Coordination Pursuant to 28 U.S.C. § 1407 for Centralization of Class Action Lawsuits Four putative class action lawsuits were filed against InPhonic in the District of Columbia, Illinois and New Jersey (followed by several tag-along suits) alleging violations of various state consumer protection statutes and common law claims, and – in some cases – violations of the Federal Racketeering Influenced and Corrupt Organizations Act (RICO).

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases-In re Int’l Air Transportation: Judicial Panel On Multidistrict Litigation (MDL) Grants Motion To Centralize Class Action Litigation In The Northern District of California

Judicial Panel Agrees with Plaintiffs and Defense that Putative Class Action Lawsuits Warrant Centralization Pursuant to 28 U.S.C. § 1407 and Selects Northern District of California as Transferee Court At least 15 separate putative class action lawsuits were filed in at least 6 different federal courts in various states – followed by numerous tag-along actions – seeking to recover damages for alleged violations of antitrust laws arising out a purported conspiracy to fix prices on international passenger air travel to or from the United States.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Carton v. Choice Point-Class Action Defense Cases: New Jersey Federal Court Denies Defense Motion To Dismiss Class Action For Lack Of Standing Because “Lost Opportunity To Sell Stock” Is Sufficient Injury In Fact

Federal Court Denies Defense Motion To Dismiss Class Action For Lack Of Standing But Otherwise Grants In Part And Denies In Part Defense Motion To Dismiss Class Action Complaint Arising Out Of Unclaimed Property Claims

Plaintiffs filed a putative class action against Choice Point and its subsidiary for violations of the New Jersey Consumer Fraud Act and Uniform Unclaimed Property Act, and for common law claims of tortuous interference, fraud, breach of duty, wrongful exercise of dominion over property and interference with possession of property. Carton v. Choice Point, 450 F.Supp.2d 489, 495 (D. N.J. 2006). Defense attorneys moved to dismiss the class action complaint for lack of standing. The defense also moved to dismiss the class action complaint for failure to state a claim. The federal court held that plaintiffs had standing to pursue the class action, and then granted in part and denied in part the motion to dismiss.

Choice Point is a company that charges a fee to locate and secure the return of unclaimed property. Mellon Investor Services asked Choice Point, with whom it had contract, to track down plaintiffs’ father, James Carton Jr., because he held 1600 shares of stock worth $150,000. Carton had died in January 2000, and Choice Point sent a letter to his surviving sons informing them “that a ‘stock account’ with a ‘current value in excess of $15,000’ was ‘still outstanding with our client.'” Carton, at 493. In response to subsequent inquiries, Choice Point stated only that the value of the asset exceed $15,000. Id., at 494. Choice Point sent plaintiffs a contract in which it “agreed to locate the unspecified ‘asset’ in exchange for a finder’s fee of 35% of the asset’s gross value”; plaintiffs signed the contract, but reduced the fee to one-third of the net recovery. Id. Choice Point notified Mellon that it had a signed contract to recover the Carton account and asked that a “stop” be placed on the account. Mellon complied. Choice Point also sent plaintiffs additional documentation, but plaintiffs refused to sign the Letter of Authorization and Irrevocable Stock Power required by Choice Point to complete the transaction. Instead, plaintiffs sought to recover the stock from Mellon directly, but Mellon refused to turn over the stock certificates because of the stop placed on the account. However, for reasons which are unclear, Mellon sent the stock certificates to Choice Point. Choice Point maintained possession of the stock for three years. Carton, at 494.

Class Action Court Decisions Uncategorized

Class Action Defense Cases-In re New York Bancorp: New York Federal Court Grants Defense Motion To Dismiss Securities Class Action And Rejects Plaintiffs’ Meritorious Remand Motion As Untimely

Court Holds Allegations in Securities Class Action Fail to Meet Heightened Pleadings Requirements Mandated by FRCP Rule 9(b) and the PSLRA (Private Securities Litigation Reform Act of 1995), and Denies Plaintiffs Request To Rule on its Year-Old Remand Motion as Untimely

Plaintiff investors filed separate putative class actions against New York Community Bancorp (NYCB) and several of its officers alleging violations of federal securities laws by making materially false and misleading statements to investors. In re New York Community Bancorp, Inc., Securities Litig., 448 F.Supp.2d 466, 469 (E.D.N.Y. 2006). The federal court eventually consolidated 11 such class action lawsuits, and appointed lead plaintiff and lead counsel. Following the filing of a Consolidated and Amended Class Action Complaint, defense attorneys filed a motion to dismiss and certain plaintiffs filed a motion for reconsideration of the consolidation order. Id. The district court denied the motion for reconsideration and granted the defense motion to dismiss.

The amended class action complaint alleged violations of the Securities and Exchange Act of 1934 (“Exchange Act”) and the Securities Act of 1933 (“Securities Act”) on behalf of NYCB shareholders. In re New York Comm. Bancorp, at 469. NYCB went through a period of substantial earnings growth and acquired several financial institutions, building “a unique and profitable core lending business comprised of multi-family mortgage loans.” Id., at 470. Over time, however, market conditions changed and NYCB expanded into a ” risky, but common, leveraging strategy involving mortgage-backed securities known as the ‘carry trade.'” Id. The complaint alleged that NYCB diverted increasingly large sums away from conservative investments and to carry trade investments, but continually held itself out as a risk-adverse, conservative community bank. Id., at 471. The court summarized the material allegations of the complaint as follows: “In particular, the Plaintiffs allege that the Defendants: (1) falsely represented that NYCB was uniquely able to thrive in an environment of rising interest rates and that its business prospects remained strong; (2) highlighted a false strategy of deleveraging following the acquisition of Roslyn; and (3) failed to adequately disclose the extent of the risks of the carry trade activity.” Id.

The court first addressed the motion for reconsideration, which additionally sought to reinstate a motion that the plaintiffs had filed more than a year earlier to remand to state court one of the class action lawsuits. In re New York Comm. Bancorp, at 474. Plaintiffs had filed their class action in state court, and the defense removed the lawsuit to federal court. Plaintiffs filed a motion to remand arguing that the Securities Litigation Uniform Standards Act of 1998 (SLUSA) prohibits removal of cases based exclusively on the Securities Act. When the federal court consolidated the 11 securities class actions, it did not specifically address the remand motion but the practical effect of the court’s ruling was to deny the motion. Id., at 475. In evaluating the plaintiffs’ motion, the district court concluded that even though claim of improper removal appears to have merit, id., the fact remained that plaintiffs’ motion was too late, id., at 475-76.

Class Action Court Decisions PSLRA/SLUSA Class Actions Removal & Remand Uncategorized

Class Action Defense Cases-In re Vioxx Products: Federal Court Grants Defense Motion To Dismiss Class Action Claims On Behalf Of Residents Of Italy And France On Grounds Of Forum Non Conveniens

Louisiana Federal Court Holds Concurs with Defense that Class Action Claims Against Vioxx Manufacturer on Behalf of Foreign Citizens may be Adjudicated Outside the United States

After Merck removed Vioxx from the market in September 2004, thousands of lawsuits were filed in state and federal courts, ultimately leading to centralization by order of the Judicial Panel on Multidistrict Litigation to the Eastern District of Louisiana. These lawsuits included not only class action filings, but 11 lawsuits on behalf of residents of other countries, including Italy and France. In re Vioxx Prods. Liab. Litig., ___ F.Supp.2d ___, 2006 WL 2504353, *1-*2 (E.D.La. August 30, 2006). Defense attorneys moved to dismiss the foreign class actions on grounds of _forum non conveniens_. _Id._, at *2. The parties stipulated that the federal court should limit its analysis to Italian and French class actions, and the district court granted the defense motion and dismissed the class action complaints. _Id._,

In support of the motion to dismiss, defense attorneys argued that Vioxx had been regulated extensively in Italy and France, and that regulators in both countries “required that certain warnings and packaging information be included.” In re Vioxx, at *2. __Also, local physicians had prescribed Vioxx to the Italian and French citizens allegedly injured, and the product had been purchased and used, and the putative class members treated for any resulting injuries, in those countries. Id. Plaintiffs countered that Merck “designed, tested, and manufactured” Vioxx in the United States, and orchestrated worldwide distribution from within the United States. Id., at *3.

Class Action Court Decisions Uncategorized

Howell v. State Farm-Class Action Defense Cases: Maryland Federal Court Grants Defense Motion To Dismiss Class Action Claims For Breach of Fiduciary Duty And Breach of Implied Covenant Of Good Faith And Fair Dealing As Not Cognizable Under Federal Law

Federal Common Law Exclusively Governs Interpretation of Insurance Policies Issued Under National Flood Insurance Program (NFIP) and Federal Law does not Recognize Breach of Fiduciary Duty or Breach of Implied Covenant Claims Thus Supporting Defense Motion to Dismiss Those Claims for Relief in Class Action Complaint Homeowners filed a putative class action in Maryland federal court against various insurance companies for breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty arising out of the issuance of flood insurance under the National Flood Insurance Program (NFIP), administered by the Federal Emergency Management Agency (FEMA).

Class Action Court Decisions Uncategorized