Class Action Defense Cases-Jacobson v. Healthcare Financial: New York Federal Court Throws Out Class Action Under FDCPA (Fair Debt Collection Practices Act) And Awards Defense Attorney Fees

New York Federal Court Converts Defense Motion to Dismiss FDCPA Class Action to Motion for Summary Judgment, Grants Motion, and Awards Defense Attorney Fees and Costs Because Lawsuit was Filed for Purpose of Harassment

After debt collector sent plaintiff a letter demanding payment of a $492 debt, plaintiff filed a putative class action alleging that the letter violated the federal Fair Debt Collection Practices Act (FDCPA) because it (1) demanded payment within 30 days and (2) that the letter’s request for “payment or notice of dispute” within 30 days “might” be interpreted as giving the debtor 30 days from the date of the letter rather than from its receipt. Jacobson v. Healthcare Fin. Servs, Inc., 434 F.Supp.2d 133, 139 (E.D.N.Y. 2006). The defense was not amused; and judging from the ruling, neither was the federal court.

The federal court discussed the fact that FDCPA claims are subject to abuse:

Class Action Court Decisions FDCPA Class Actions Uncategorized

Ford Motor Class Action Defense Cases-Daffin v. Ford Motor: Federal District Court Certification Of Class Action Over Defense Objection Not An Abuse Of Discretion Sixth Circuit Holds

Sixth Circuit Affirms District Court Order Granting Motion to Certify Class Action Against Car Manufacturer

On August 18, 2006, the Sixth Circuit Court of Appeals affirmed a federal district court order certifying a nationwide class action against Ford Motor Company, arising out of an allegedly defective throttle body assembly in Mercury Villager minivans causing the accelerator to stick. Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. August 18, 2006). Plaintiff filed suit in state court on her own behalf because the accelerator in her 1999 Villager would get stuck even after Ford repairs to the throttle body assembly. Ford removed the action to federal court, and plaintiff’s lawyer sought certification of a nationwide class action, apparently under Rule 23(b)(2). The district court instead certified a statewide class under Rule 23(b)(3), because the class action complaint sought monetary rather than injunctive relief. Id., at 551-52. Defense attorneys filed an interlocutory appeal of the class certification order under FRCP Rule 23(f). The Sixth Circuit affirmed, holding that the district court did not abuse its discretion in certifying the class and rejecting defense arguments that “this is a case of ‘certify now, worry later.’” Id., at 552.

Defense attorneys argued that because it provided a “repair or replace” warranty to car purchasers, certain class members may never suffer the damage alleged in the complaint. The Sixth Circuit summarized Ford’s argument as follows: “because the class as a whole cannot recover, the district court abused its discretion by certifying a statewide express warranty class.” Id., at 552. Plaintiff countered that Ford was seeking a ruling “on the merits” and that ultimate success is not a proper basis for denying class certification. Id. The Sixth Circuit concluded that “[plaintiff] has the better of the arguments at this stage of the litigation.” Id.

Certification of Class Actions Class Action Court Decisions Uncategorized

Trezvant v. Fidelity-Class Action Defense Cases: Massachusetts Federal Court Grants Defense Motion To Partially Dismiss Class Action That Sought Overtime Pay Under Fair Labor Standards Act (FLSA) And New Hampshire State Law

Massachusetts District Court Grants Joint Motion To Decertify Class And Grants Defense Motion To Dismiss New Hampshire State Law Class Action Overtime Claims

Salaried employees filed a putative class action alleging that they were misclassified as exempt and seeking overtime pay under the federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and under New Hampshire state law. Trezvant v. Fidelity Employer Servs. Corp., 434 F.Supp.2d 40 (D. Mass. 2006). During the litigation, the Massachusetts federal district court granted plaintiffs’ motion to conditionally certify an FLSA class action, and a defense motion to dismiss the state law claims contained in the class action complaint. Later still, the district court granted a joint motion to decertify the class because only a few class members opted into the lawsuit. The court then issued a single memorandum discussing these rulings. Id., at 42.

Class Action Court Decisions Employment Law Class Actions Uncategorized

Dreyfus Mutual Funds-Class Action Defense Cases: Shareholders’ Investment Company Act § 36(b) Claim Must Be Brought Derivatively Not As A Class Action So Both It And § 48(a) Claim Based On It Fail Pennsylvania Federal Court Holds

Federal District Court Grants Defense Motion for Judgment on Pleadings and Dismisses Class Action Because § 36(b) Claims under Investment Company Act Cannot Proceed as a Class Action But Rather Must be Brought Derivatively A putative class action alleging securities fraud was filed against investment advisors, distributors and directors of Dreyfus brand mutual funds (“Dreyfus”); the class action complaint asserted that “investment advisors and distributors of Dreyfus brand mutual funds, engaged in fraudulent fee arrangement schemes in violation of federal and state law.

Class Action Court Decisions Uncategorized

Class Action Defense Cases—Brieger v. Tellabs: District Court Denies Defense Motion To Reassign ERISA Class Action To Judge Who Handled Related PSLRA (Private Securities Litigation Reform Act) Case

Judge Refuses to Assign Related Case to Judge Who Handled Prior Cases Because of Uncertainty Created by Appeal

An employee filed a putative class action against his employer alleging a breach of fiduciary duty under ERISA in that its Profit Sharing and Savings Plan imprudently invested in the employer’s securities and published misleading information about the safety of those securities. Brieger v. Tellabs, Inc., 434 F.Supp.2d 567 (N.D. Ill. 2006). Class action defense attorneys agreed with the employee’s request that the class action be deemed “related” to two other cases against the employer. Defense attorneys then requested that the three cases be reassigned to a different judge (St. Eve) who handled a lawsuit against the employer alleging securities laws violations under PSLRA (Private Securities Litigation Reform Act). The district court denied the defense request.

Class Action Court Decisions Uncategorized

Class Action Defense Cases-Meyers v. Texas: Defense Waives Right To Object To Federal Jurisdiction By Removing Class Action To District Court Fifth Circuit Holds

Fifth Circuit Holds that Defense Motion to Dismiss for Lack of Subject Matter Jurisdiction Should have been Denied Because State Removed Class Action to Federal Court Disabled persons filed a putative class action against the State of Texas alleging that its fee-based parking placard program violated the federal American with Disabilities Act (ADA); the defense removed the action to federal court and then moved to dismiss the action on state sovereign immunity grounds.

Class Action Court Decisions Removal & Remand Uncategorized

Class Action Defense Cases-Saxton v. Title Max: Certification Of Federal Fair Labor Standards Act (FLSA) Class Action Denied For Failure To Demonstrate That Class Members Desired To Opt-In And That Plaintiffs Are Similarly Situated Alabama Court Holds

Defense Attorneys for Employer Successfully Defeat Plaintiff Lawyer’s Motion to Conditionally Certify Class on Grounds that Employees Failed to Meet Eleventh Circuit’s Two-Part Dybach Test

Employees filed a putative class action alleging overtime pay violations of the federal Fair Labor Standards Act (FLSA). Saxton v. Title Max of Alabama, Inc., 431 F.Supp.2d 1185 (N.D. Ala. 2006). Over defense objections, the employees sought conditional class certification and permission to send notice of the class action to class members. The lawsuit alleged that the employer’s assistant managers were systematically denied overtime pay in violation of the FLSA, id., at 1186, despite the fact that the employer “has a policy, which store managers are directed to enforce, that assistant managers are not to work over 40 hours in a week,” id., at 1188. The district court agreed with class action defense attorneys that plaintiffs failed to satisfy the two-part test enunciated in Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d 1562 (11th Cir. 1991), and therefore denied the motion.

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

Verizon Class Action Defense Case: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Transfer Government Surveillance Class Actions To Northern District Of California

Verizon Defense Persuades MDL Judicial Panel that Class Actions Arising out of Governmental Surveillance of Telecommunication Activity and Verizon’s Participation or Cooperation in such Activity Would Benefit from Transfer to Northern District of California After seventeen (17) class action lawsuits were filed in thirteen (13) federal courts against Verizon Communications, AT&T, BellSouth and certain affiliated companies arising out of the federal government’s telecommunication surveillance activities, and the defendants’ participation in, or cooperation with, that activity, Verizon’s defense attorneys moved the Judicial Panel on Multidistrict Litigation (MDL) to transfer the cases to the District Court for the District of Columbia.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases-Richards v. Delta Air Lines: Denial Of Class Certification Proper Because Lawsuit Predominantly Sought Monetary Damages And Did Not Involve Common Questions Of Law Or Fact D.C. Circuit Holds

Circuit Court Affirms Dismissal of Putative Class Action Against Airline that Alleged Warsaw Convention did not Limit Liability for Lost or Damaged Baggage Because Action did not Satisfy Rule 23(b)(2) or Rule 23(b)(3)

Following the loss of a single piece of luggage on an international flight, plaintiff filed a putative class action against the airline alleging that she was entitled to the fair market value of the luggage and its contents, not the “maximum reimbursement” amount Delta calculated was due under the Warsaw Convention (now superseded). Richards v. Delta Air Line, Inc., 453 F.3d 525, 526 (D.C. Cir. 2006). In essence, the complaint alleged that because Delta did not “as a matter of practice” record the weight of the luggage on passenger luggage tickets, the defense could not rely upon the Warsaw Convention. Id., at 526-27. Plaintiff’s lawyer moved for class certification under Rule 23(b)(2), and later alternatively sought class certification under Rule 23(b)(3). Id., at 527-28. But while the district court found that the requirements of Rule 23(a) had been met, it refused to certify a class because the requirements of Rule 23(b)(2) or (b)(3) had not been met. With respect to Rule 23(b)(2), the court held that class certification “is not appropriate where plaintiff’s claims are predominantly monetary relief,” and found further that the class action complaint essentially sought payment of monetary damages despite the fact that it sought a declaratory judgment. Id., at 528. And with respect to Rule 23(b)(3), the district court held that Delta’s “accord and satisfaction” defense would require “the application of varying state laws and a case-by-case factual inquiry,” thereby defeating a claim that common questions of law or fact predominate. Id. Reviewing the judgment “for abuse of discretion or legal error,” id., at 530, the D.C. Circuit affirmed.

Certification of Class Actions Class Action Court Decisions Uncategorized

Murray v. New Cingular Wireless-Class Action Defense Issues: Promotional Offer For Wireless Service Was “Firm Offer” Under Federal Fair Credit Reporting Act (FCRA) Illinois District Court Holds

Federal District Court Grants Defense Motion for Summary Judgment and Dismisses Putative Class Action Alleging Violations of FCRA (Fair Credit Reporting Act) Holding that Promotional Offer was a “Firm Offer of Credit” and that Failure to Provide “Clear and Conspicuous” Disclosure was not Willful

A putative class action was filed against New Cingular Wireless for alleged violations of the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq., by accessing credit reports before sending promotional offers for wireless telephone services. Murray v. New Cingular Wireless Services, Inc., 432 F.Supp.2d 788, 789 (N.D. Ill. 2006). The class action defense argued that it obtained consumer credit reports for permissible purposes within the meaning of the FCRA. Specifically, defense attorneys maintained that Cingular used the reports pursuant to § 1681b to make a “firm offer of credit” – defined by FCRA as “any offer of credit or insurance to a consumer that will be honored if the consumer is determined, based on information in a consumer report on the consumer, to meet the specific criteria used to select the consumer for the offer,” 15 U.S.C. § 1681a(1) – and that any deficiencies with respect to the required disclosures were inadvertent.

The facts underlying the lawsuit were as follows. In 2004, Cingular sent plaintiff a promotional offer for a free wireless phone with the following disclosure: “You were selected to receive this special offer because you satisfied certain credit criteria for creditworthiness, which we have previously established. We used information obtained from a consumer-reporting agency…. You have the right to prohibit information contained in your credit files with this and any other consumer-reporting agency from being used with any credit transaction that is not initiated by you …” Murray, at 789-90. Plaintiff filed a putative class action in federal court alleging that the promotion violated the FCRA. First, he argued that the promotion was not an “offer of credit” but simply an offer for a free phone, and that the word “credit” was never used in the promotion. Id., at 791. The court disagreed, explaining “wireless customers pay for services after the actual use of the services. By definition, such a payment scheme puts Cingular at risk that the customer could default on payment-which is essentially what credit is all about.” Id. (citation omitted). As the court explained at page 791,

Class Action Court Decisions FCRA Class Actions Uncategorized