Merck Must Prepare State And Federal Class Action Defense Against New Lawsuits Involving Fosamax

Plaintiff Class Action Lawyers Again Set Sights On Pharmaceutical Giant, Still in Defense Mode on Vioxx Los Angeles Times reporter Molly Selvin believes pharmaceutical giant Merck & Co. is seeing the beginning of a new wave of class action litigation. Merck is already dealing with the near-daily filing of class action lawsuits involving pain reliever Vioxx. See, e.g., International Union of Operating Engineers Local #68 Welfare Fund v. Merck & Co.

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Prediction Of A Class Action Defense Lawyer: Class Action Test Cases Alleging “Unlawful” Exposure To Secondhand Cigarette Smoke On The Horizon In California

On June 27, 2006, U.S. Surgeon General Richard H. Carmona released a mammoth report on secondhand cigarette smoke that is likely to benefit the class action plaintiff lawyers far more than the children the report seeks to protect. The report – entitled, “The Health Consequences of Involuntary Exposure to Tobacco Smoke” – spans more than 700 hundreds pages with exhibits, and provides a comprehensive analysis of the health risks associated with “passive” smoking, or in the words of the report, “involuntary smoking.

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Employment Law Class Action Filings Again Lead Cases Confronted By California Federal And State Defense Attorneys

For the California federal and state defense lawyer, we again provide an unofficial summary of recent class action filings in California, in the hope that it will assist California class action defense attorneys anticipate claims against which they may have to defend. The following is a summary of legal categories for class actions filed in California state and federal courts from June 30 – July 6, 2006, in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas.

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Engle v. Liggett Group: Defense Persuades Florida Supreme Court To Decertify Class Action Against Tobacco Company And Set Aside $145 Billion Punitive Damage Award As Excessive

Successful Appellate Defense of Class Action Case Still Permits Individual Lawsuits to be Filed, and Florida Supreme Court Holds that Several Jury Findings Against the Tobacco Companies Still Stand

In a tremendous victory for the tobacco industry defense, the Florida Supreme Court decertified a class action and set aside a $145 billion punitive damage award as excessive. Engle v. Liggett Group, ___ So.2d ___, Case No. SC03-1856 (July 6, 2006). A nationwide class action had been certified almost a dozen years ago – on October 31, 1994 – on behalf of smokers and their survivors seeking compensatory and punitive damages for injuries allegedly caused by smoking. survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Slip Opn., at 7. Following an interlocutory appeal filed by the defense, the Florida Court of Appeal affirmed class certification but reduced the scope of the class action to “Florida citizens and residents.” _See R.J. Reynolds Tobacco Co. v. Engle_, 672 So.2d 39, 42 (Fla.App. 1996). The ensuing trial resulted in a jury verdict awarding the named plaintiffs a total of $12.7 million dollars in compensatory damages, and the entire class $145 billion in punitive damages. Slip Opn., at 9.

With respect to the punitive damage award, the Supreme Court held that the trial court’s procedure was fatally flawed. The trial proceeded as follows: Phase I – consisting of the trial on the class action claims for liability and entitlement to punitive damages; Phase II-A – consisting of the trial on the individual class representative’s claims for compensatory damages; and Phase II-B – consisting of a jury trial on the total award of punitive damages payable to the class as a whole. Slip Opn., at 8-9. Phase III (not yet held) would involve the selection a new juries “to decide the individual liability and compensatory damages claims for each class member,” following which “the trial court would divide the punitive damages previously determined equally among any successful class members.” Id., at 10. The Supreme Court rejected this procedure, as well as the size of the award, explaining at page 19:

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Hapin v. Arrow Financial: Defense Motion to Dismiss FDCPA Class Action Granted Because Debt Collector Letter Not Misleading California Court Holds

California Federal Court Finds Letter Referring to Debtor as “Customer” and to Debt Collector as “Account Representative,” and Offering to “Help” Resolve Debt, Not Misleading Under Fair Debt Collection Practices Act, But Allegation That Debt Collector Sought to Recover Excess Interest Sufficient to Survive Motion to Dismiss

In January 2006, a putative class action was filed in California federal court against Arrow Financial Services alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (FDCPA), and its California equivalent, California Civil Code, §§1788 et seq. Hapin v. Arrow Fin. Serv., 428 F.Supp.2d 1057, 1059 (N.D. Cal. 2006). Plaintiff’s lawyer asserted that the debt collector letter from Arrow was “false, deceptive, and misleading” in that it (1) described plaintiff as a “customer,” (2) characterized the debt collector as an “account representative,” and (3) offered to “‘help Plaintiff regain his financial future . . . [and] by the false . . . characterization of debt as helping “regain his financial future.”’” Id. The complaint also alleged that Arrow sought to collect excessive interest, id. Defense attorneys filed a motion to dismiss the class action complaint, which the California federal court granted in part and denied in part.

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Class Action Filings: California Defense Attorneys Confront More Employment Class Actions

In an effort to assist California class action defense attorneys anticipate claims against which they may have to defend, we provide an unofficial summary of legal categories for class actions filed in California state and federal courts from June 22 – June 29, 2006, in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. We include only those categories that boast 10% or more of the class action filings during the relevant timeframe.

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Senate Closer To Vote On Bill Further Expanding Federal Court Jurisdiction In Defense Of Class Action Cases

The Associated Press reports that the Senate is nearing a vote on legislation that would further expand federal court jurisdiction over class action lawsuits. Last year, Congress enacted CAFA, the Class Action Fairness Act of 2005, which in part significantly expanded access to federal courts in defense of class actions. The Senate bill would further expand such access. Because defense attorneys often remove class actions to federal court whenever possible, class action defense attorneys will be very interested in the progress of this pending legislation.

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Class Action Defense Cases: Federal Claims Court Certifies Class Action By Nurse Care Managers Against VHA For Failure To Pay Overtime: Defense of Class Actions Issues

Despite “Significant Differences” Between Rule 23 and RCFC 23 (Rules of the United States Court of Federal Claims), and Despite Rarity of Class Action Certification, Class Actions Are Not Disfavored in Court of Federal Claims On March 31, 2006, a United States Court of Federal Claims certified a class action under Rules of the United States Court of Federal Claims (RCFC) 23. Filosa v. United States, 70 Fed.Cl. 609 (2006). Though RCFC 23 “is modeled largely” on class action certification under Rule 23, “‘there are significant differences.

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Verizon Implements New Policies In Face Of Defense Of California Class Action Regarding Cancellation Fees

Both the Los Angeles Times and Yuki Noguchi of the Washington Post report today on yesterday’s announcement by Verizon that it will soon implement a fundamental change in its cancellation fee policy for cellular telephone subscribers. In the face of a California class action that the Times reports seeks “to recover early cancellation fees from Verizon Wireless and Sprint Nextel,” the company will calculate the early termination fee based on the proportional amount of time remaining on the subscription agreement.

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Motions to Defeat Diversity Jurisdiction: Class Action Defense Issues

28 U.S.C. § 1447(e) Once a class action has been removed to federal court based on diversity jurisdiction, a plaintiff may seek to destroy diversity by naming additional defendants. Any such attempt would fall squarely within the ambit of 28 U.S.C. § 1447(e), which provides as follows: If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.

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