Employment Law Class Action Cases Again Lead Weekly Filings Confronting California Defense Attorneys

To aid California class action defense attorneys in anticipating claims against which they may have to defend, we provide weekly an unofficial summary of legal categories for class actions filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. This report covers the time period of July 7 – July 13, 2006. We include only those categories with 10% or more of the class action filings during the relevant timeframe.

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Hurricane Katrina Lawsuit Textbook Example Of When Not To Use Class Action Device: Class Action Defense Issues

Class Action Defense Attorneys Agree With Plaintiffs’ Lawyer’s Assessment of Case A lawsuit by Paul and Julie Leonard against Nationwide is the first lawsuit against a liability insurer for home damage caused by Hurricane Katrina to go to trial, according to today’s New York Times. The article by Joseph Treaster details the difference between insurance claims arising out of Katrina for wind damage (generally covered) and flood damage (generally excluded from coverage).

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Class Action Defense And Employment Law Issues–Loving v. Johnson: Prison Inmates Are Not Employees Under Federal FLSA (Fair Labor Standards Act) For Working At Prison Fifth Circuit Holds

In Case of First Impression for Federal Courts in Fifth Circuit, Court Joins Sister Circuits in Holding that Fair Labor Standards Act (FLSA) Does not Cover Prisoners Working at Prison On July 7, 2006, the Fifth Circuit Court of Appeals considered the appeal of a prison inmate from a federal district court judgment dismissing his action as frivolous. Loving v. Johnson, ___ F.3d ___, 2006 WL 1868320 (5th Cir. 2006). The prisoner filed suit claiming that under the federal Fair Labor Standards Act, 29 U.

Class Action Court Decisions Class Actions In The News Employment Law Class Actions Uncategorized

California Court Agrees With Defense: Holds Both Class Action Plaintiff And Class Members Must Have Suffered Injury In Fact, And Both Must Have Standing Which Requires Detrimental Reliance On Allegedly False Advertising, In Order To Warrant Certification

Pfizer v. Superior Court: Proposition 64 Requires Class Action Representatives and Class Members Satisfy Injury in Fact and District Court Exercise of Discretion to Select Class Action Attorneys Best Able to Represent Absent Class Members is Generally Not Subject to Appellate Review: Class Action Defense Issues

California’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code, §§ 17200 et seq., and false advertising statute, id., §§ 17500 et seq., were altered fundamentally by the passage of voter-initiate Proposition 64 in November 2004. In January 2005, a putative class action lawsuit was filed in California state court against Pfizer under California’s UCL and false advertising law (FAL) on the ground that it had “marketed Listerine in a misleading manner by indicating the use of Listerine can replace the use of dental floss in reducing plaque and gingivitis.” Pfizer, Inc. v. Superior Court, ___ Cal.App.4th ___ (Cal.App. July 11, 2006), Slip Opn., at 2. (Prior to Proposition 64, UCL claims were brought as “representative actions”; Proposition 64 amended the UCL and FAL so as to require plaintiffs in such actions to satisfy the requirements for class action lawsuits. _See_ Bus. & Prof., Code, §§ 17203 [UCL], 17535 [FAL].) The trial court certified class action status, describing the class as “all persons who purchased Listerine, in California, from June 2004 through January 7, 2005.” _Id._ The defense filed a petition for writ of mandate, and the appellate court reversed.

In seeking class certification, plaintiff claimed inter alia that his claims were “typical” of the class; the defense disagreed. Pfizer argued that individual issues would predominate over common questions of fact (as detailed in the “Note” below). Slip Opn., at 7. Nonetheless, the trial court certified “a broad class, on an opt-opt basis,” though it noted that whether Proposition 64 amended the standing requirements for class members in UCL class actions is “an open issue.” Id., at 7-8. After carefully analyzing the issue, the California appellate court held that the standing requirements for UCL class actions had been amended by Proposition 64: “Proposition 64 now prohibits any person, other than the Attorney General or local public prosecutors from bringing a lawsuit under the UCL or the FAL unless the person has suffered injury and lost money or property as a result of such violations.” Slip Opn., at 11 (citation omitted).

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Class Action Defense Cases: D.C. Circuit Grants Federal Government’s Defense Motion To Reassign Class Action

Class Action District Court Judge’s Hostility to Interior Department Makes Him Incapable of Rendering Fair and Impartial Rulings

Federal and state courts are understandably loathe to recuse judges for claims of bias, but on July 11, 2006, in a class action that has been pending for a decade, the United States Court of Appeals for the District of Columbia “reluctantly” granted a federal defense motion to do just that. Cobell v. Kempthorne, ___ F.3d ___, 2006 WL 1889150 (D.C. Cir. 2006). The class action originated in 1996, when five Indians sued the federal government for breach of fiduciary duties in its capacity as trustee of Indian lands by “destroy[ing] critical records, fail[ing] to account to trust beneficiaries, and either los[ing] trust assets or convert[ing] them to government use.” Slip Opn., at 2. By the lawsuit, plaintiffs sought “‘to force the government to abide by its duty to render an accurate accounting’ of the assets held in Individual Indian Money (IIM) trust accounts.” Slip Opn., at 2-3 (quoting _Cobell v. Babbitt_, 91 F.Supp.2d 1, 6-7 (D.D.C. 1999) (“_Cobell V_“)). The case was certified as a class action in 1997, plaintiffs prevailed at trial, and in 1999 the district court ordered the federal government to “come into compliance with their duties.” Slip Opn., at 3 (quoting _Cobell v. Norton_, 240 F.3d 1081,1094 (D.C. Cir. 2001) (“_Cobell VI_“)). The lower court retained jurisdiction over the action and required status reports from the federal government quarterly summarizing its progress. _Id._ In 2001, the D.C. Circuit “generally affirm[ed] the judgment, but cautioned the district court “‘to be mindful of the limits of its jurisdiction’ and therefore to refrain from unduly interfering with Interior’s ‘conduct in preparing an accounting.'” Slip Opn., at 3 (quoting _Cobell VI_, at 1110).

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Frustration Mounts Over Settlement Of Verizon Class Action Lawsuit As Defense Pleads That It Is Merely Complying With Court Order

David Lazarus of the San Francisco Chronicle reports today on the confusion millions of Verizon customers are experiencing in deciphering precisely what the new disclosures are in their wireless phone contract after receiving “a voluminous – and optional – ‘customer agreement pursuant to lawsuit settlement.'” But they are not alone: according to Lazarus, a Verizon spokeswoman “admit[s] that finding the revised language can be tough.” Verizon is quoted as saying, “If it’s confusing, this is what we were ordered to do by the court.

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California Supreme Court Denies Review of Decision Permitting Precertification Discovery To Identify Substitute Class Action Representatives

California Supreme Court Denies Petition for Review and Request to Depublish Appellate Court Opinion in Best Buy v. Superior Court In a post dated April 11, 2006, we summarized a then-recent California appellate decision in a class action against Best Buy that permitted the plaintiff-lawyer to conduct discovery for the purpose of finding substitute plaintiffs to serve as class representatives. See Best Buy Stores, L.P. v. Superior Court, 137 Cal.App.4th 772 (Cal.

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Kronemeyer v. U.S. Bank: Class Action Alleging Bank Wrongfully Charged Fee To Negotiate Checks Preempted By Federal National Bank Act Illinois Court Holds

Illinois Appellate Court Holds Defense Motion to Dismiss Class Action Should Have Been Granted Because Plaintiffs Lack Standing To Allege Wrongful Dishonor Of Check and Because Federal National Bank Act Preempts Illinois State Law Regarding Fees Charged to Negotiate Checks for Non-Customers

On July 5, 2006, an Illinois appellate court issued a surprising opinion in favor of the defense in a class action case. Illinois follows the rule that courts with interlocutory appeal/certified question procedures usually follow: “Th[e] court’s examination of an interlocutory appeal is usually limited to the questions certified by the trial court and, as with all questions of law, is a de novo review.” Kronemeyer v. U.S. Bank Nat’l Ass’n, ___ Ill.App.3d __ (Ill.App. 2006) (citation omitted) [Slip Opn., at 2]. Rarely do courts deviate from this general rule but the _Kronemeyer_ appellate court did just that, sidestepping one of the questions certified for appeal, addressing a question that had **_not_** been certified for appeal, and reversing the trial court’s order denying the defense motion to dismiss the class action.

Plaintiffs filed a putative nationwide class action alleging that U.S. Bank “regularly charges a fee of $10 to persons who do not have accounts at U.S. Bank and who present for payment checks drawn by its depositors,” and pleading state law causes of action. The defense filed a motion to dismiss the class action on the grounds, inter alia, that plaintiffs lacked standing to prosecute the “wrongful dishonor” claim, and that the claims were preempted by federal National Bank Act, 12 U.S.C. § 93a (2000), and the regulations and regulation interpretations issued by the Office of the Comptroller of the Currency (OCC). Slip Opn., at 2. The trial court denied the motion to dismiss, id., but certified for interlocutory appeal two questions: “(1) whether the plaintiffs’ claims are preempted under the National Bank Act . . . and the regulations and regulatory interpretations issued thereunder by the [OCC] and (2) whether the circuit court has jurisdiction to review whether the OCC correctly interpreted its own regulation or whether that review lies within the exclusive jurisdiction of the federal courts pursuant to the Administrative Procedures Act,” id., at 1 (citations omitted).

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WFS Financial v. Superior Court: Federal Home Owners’ Loan Act (HOLA) Preempts California Automobile Sales Finance Act California Court Holds

California Appellate Court Agrees With Defense And Dismisses Lawsuit Against Lender Based on Federal Preemption: Class Action Defense Issues

WFS Financial and its subsidiary are federal savings associations that operate under the federal HOLA (Home Owners’ Loan Act), 12 U.S.C. §§ 1461 et seq. A car dealer assigned WFS a motor vehicle loan and the borrower defaulted: “WFS repossessed the vehicle, gave notice of its intent to dispose of the vehicle by private sale, sold the vehicle, and filed suit against [the borrower] for the deficiency between the sale price and remaining balance due, including various costs and fees.” WFS Financial, Inc. v. Superior Court, 140 Cal.App.4th 637, 44 Cal.Rptr.3d 561 (Cal.App. 2006). The borrower cross-complained, alleging that WFS failed to comply with California’s Rees-Levering Automobile Sales Finance Act, California Civil Code, §§ 2981 et seq., and included an unfair business practice claim under California Unfair Competition Law (UCL), California Business & Professions Code, §§ 17200 et seq., based on the alleged violations of Rees-Levering. Id., at 563-64. In defense, WFS demurred, arguing that HOLA preempted Rees-Levering. The trial court disagree and overruled the demurrer, and WFS sought a petition for writ of mandate from the California Court of Appeal.. Id., at 564.

Before agreeing with the defense, the appellate court set forth a detailed summary of HOLA, the Federal Home Loan Bank Board (FHLBB) that originally regulated federal savings and loan associations, and FHLBB’s replacement by the Office of Thrift Supervision (OTS). Id., at 565-68. The Court highlighted evidence from numerous sources that Congress intended HOLA to preempt state laws and regulations, concluding:

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UC Irvine Settles Lawsuit Under Willed Body Program: Class Action And Individual Actions Remain Pending For Defense

Defense Opts to Settle Rather Than Take First Case to Trial Christian Berthelsen of the Los Angeles Times reports today that defense attorneys for the University of California at Irvine have settled what “would have been the first lawsuit to go to jury trial” arising out of its Willed Body Program: a class action defense must still be mounted, and dozens of individual lawsuits remain pending. The lawsuit alleged that rather than using bodies donated to the University for research, body parts were sold.

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