Class Action Defense Cases-In re New Century Mortgage: Judicial Panel On Multidistrict Litigation (MDL) Denies Defense Request To Centralize Class Action Litigation In The Central District of California

Class Action Lawsuits did not Warrant Pretrial Coordination Pursuant to 28 U.S.C. § 1407 Judicial Panel on Multidistrict Litigation (MDL) Holds Three class action lawsuits were filed in Indiana and California against New Century Financial, New Century Mortgage and Home123; Indiana plaintiffs’ lawyer moved the Judicial Panel on Multidistrict Litigation (MDL) to centralize the lawsuits for pretrial purposes in the Northern District of Indiana, but then moved to withdraw the request “asserting that they have reached an agreement with plaintiff in [one of] the Central District of California [cases] .

Class Action Court Decisions Multidistrict Litigation Uncategorized

Bluetooth Class Action Defense Case—In re Bluetooth Headset: Judicial Panel On Multidistrict Litigation (MDL) Grants Plaintiff Motion Joined In By Defense Attorneys To Centralize Class Action Litigation In The Central District Of California

Judicial Panel Agrees Pretrial Coordination Pursuant to 28 U.S.C. § 1407 is Warranted for Class Actions Involving Bluetooth Headsets and Grants Request, Supported by Defense and Plaintiffs in Other Class Actions, to Centralize Litigation in Central District of California Numerous class action lawsuits – seeking both statewide and nationwide class certification – were filed in several states against Motorola, Plantronics, GN Jabra North America and GN Netcom, “seek[ing] relief under various theories of liability, such as unjust enrichment, breach of express and/or implied warranties, and strict products liability” based on the central allegation that use of Bluetooth headsets may cause hearing loss.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Carnival Class Action Defense Case-Borcea v. Carnival: Florida Federal Court Approves Settlement Of Employment Law Class Action

Terms of Proposed Class Action Settlement of Employee Claims Against Carnival Found to be Fair, Adequate and Reasonable by Florida Court

Putative class actions were filed against Carnival by former employees on behalf of several thousand workers alleging that Carnival manipulated employee time records and deprived employees of wages due; the class actions sought unpaid wages, attorney fees and costs, penalty wages, and injunctive relief. Borcea v. Carnival Corp., 238 F.R.D. 664, 667-68 (S.D. Fla. 2006). After extensive motion practice, and while one of the class actions was on appeal following a district court order dismissing the class action with prejudice, the parties agreed upon terms for a settlement and presented the proposal to the district court for approval. Id., at 668. The district court approved the proposed settlement, finding the terms to be fair, adequate and reasonable. The terms of the class action settlement are extensive and detailed. We summarize here only the district court’s legal conclusions in approving the resolution of the class actions; the reader is encouraged to review the opinion itself for details of the settlement. See id., at 668-72.

In considering the motion, the district court observed that while any proposed class action settlement requires court approval, see FRCP Rule 23(e), there is “a strong judicial policy in favor of settlement” and in the Eleventh Circuit a settlement “should be approved as long as it is ‘fair, adequate and reasonable and it is not the product of collusion between the parties.'” Borcea, at 672 (quoting Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984)). The district court summarized the factors it considers in determining whether the proposed class action settlement is fair, adequate and reasonable as follows: “(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved. Id., at 672-73 (citation omitted).

Class Action Court Decisions Uncategorized

FDCPA Class Action Defense Cases-Rivera v. Amalgamated Debt Collection Services: Florida Federal Court Holds Debt Collector Violated § 1692g Of Fair Debt Collection Practices Act But Issues Of Fact Exist As To § 1692e Claims

Debtor need not Pay Debt to have Standing to Prosecute Federal Fair Debt Collection Practices Class Action and Debtor Entitled to Summary Judgment on § 1692g Claim because Collection Letter did not Track Statute but Triable Issues of Fact Existed as to Alleged Violations of § 1692e(5) and (10) as the Language in Collection Letters was Subject to Reasonable and Different Interpretations Florida Court Holds

Plaintiff filed a putative class action against a debt collector, Amalgamated Debt Collection Services, for violations of the federal Fair Debt Collection Practices Act (FDCPA) and various state laws arising out of its efforts to collect $39.32. Rivera v. Amalgamated Debt Collection Services, Inc., 462 F.Supp.2d 1223, 1225-26 (S.D. Fla. 2006). Plaintiff moved for partial summary judgment as to defendant’s liability for violating the FDCPA, id., at 1225; defense attorneys argued that triable issues of fact exist, and that plaintiff lacked standing, id., at 1227. The district court granted the motion in part, but agreed with defense attorneys that triable issues of fact existed as to interpretation of certain language in debt collection letters.

The facts are straight-forward: In an effort to collect a debt, Amalgamated sent plaintiff two letters, each of which stated in pertinent part, “unless this matter can be resolved within 30 days of the above date, it will be necessary to consider the institution of legal procedures against you” and that she had 30 days from the date of the letters to dispute the validity of the debt, Rivera, at 1225-26; it was undisputed, however, that Amalgamated had never commenced legal proceedings in an effort to collect a debt, id., at 1226. Amalgamated also sent plaintiff a letter stating “that her failure to remit payment within 15 days would result in the ‘nationwide reporting’ of her debt as a ‘bad debt.'” Id. Plaintiff moved for partial summary judgment.

Class Action Court Decisions FDCPA Class Actions Uncategorized

Class Action Defense Cases-Bishop’s v. Protective Life: Georgia Federal Court Denies Defense Motion To Dismiss Class Action Based On Defense Tender Of Damage Check To Class Representative

Post-Class Action Complaint Tender of Amount Sought by Class Action Plaintiff does not Render Claim Moot or Deprive Federal Court of Subject Matter Jurisdiction Georgia Court Holds

Plaintiff filed a putative class action against his credit insurance coverage carrier, Protective Life, alleging that it refused to refund unearned premiums for early termination of insurance coverage. Bishop’s Prop. & Investments, LLC v. Protective Life Ins. Co., 463 F.Supp.2d 1375, 1376 (M.D. Ga. 2006). The credit insurance in question involved vehicle loans: in return for a single premium, Protective Life promised to make the loan payments in the event of the insured’s death or disability. In plaintiff’s case, he purchased a vehicle with a 72-month loan term, but he paid off the loan in only 11 months. Id. Because the loan had been paid in full, the insurance policy terminated. The class action alleged that insureds who paid off their loans early were entitled to refunds of the “unearned premiums.” Id., at 1376-77. After the filing of the class action complaint, defendant tendered a refund to plaintiff, which he refused to accept. Id., at 1376. Defense attorneys then moved for summary judgment arguing that, despite his refusal to accept the check, the tender mooted plaintiff’s claim thereby depriving the court of subject matter jurisdiction over the class action. Id. Under the defense theory, Protective Life “issued a check for the total amount of unearned premiums owed to Plaintiff under its credit insurance policy,” and that tender divested the federal court of jurisdiction because “Plaintiff’s personal claims became moot the moment [Protective Life] ‘refunded in full the unearned premiums that [Plaintiff] claims are due.'” Id., at 1377. The district court denied the motion.

The district court phrased the issue at page 1377 as follows: “Under what circumstances does a legal controversy for Article III purposes continue to exist in a class action after the named plaintiff’s individual claims become moot?” The court recognized that generally the claims of the class representative must be “live” not only at the time the class action is filed but at the time of class certification as well; if it is not, then “the court lacks a justiciable controversy” and the class action must be dismissed. Id. (citation omitted). The district court provided a concise explanation behind the purpose of the rule at pages 1377 and 1378:

Certification of Class Actions Class Action Court Decisions Uncategorized

American Express Class Action Defense Case—Berry v. American Express: As Matter Of First Impression California Court Holds Issuance Of Credit Card Falls Outside Scope Of Consumer Legal Remedies Act (CLRA)

Act of Extending Credit “Separate and Apart from any Sale or Lease of Goods or Services” Falls Outside the Scope of California’s Consumer Legal Remedies Act (CLRA) California Court Holds

Plaintiff filed a putative class action against various American Express entities seeking injunctive relief under California’s Consumer Legal Remedies Act (CLRA) in connection with arbitration clause contained in his American Express cardholder agreement. Berry v. American Express Publishing, Inc., 147 Cal.App.4th 224, 54 Cal.Rptr.3d 91, 92 (Cal.App. 2007). Defense attorneys demurred to the complaint, arguing that issuing a credit card does not fall within the scope of the CLRA. The trial court agreed with the defense arguments and sustained the demurrer to the class action complaint without leave to amend. The appellate court affirmed, concluding that “the extension of credit, such as issuing a credit card, separate and apart from the sale or lease of any specific goods or services, does not fall within the scope of the act.” Id.

After plaintiff began receiving an Amex publication called “Travel + Leisure” and noticed a $43 charge on his credit card statement for the magazine, he telephoned American Express Centurion Bank and American Express Publishing, the subscription was canceled, and the charge was reversed. Berry, at 93. Plaintiff then filed a putative class action against various American Express entities alleging that defendants charged customers for magazines that they never ordered. Id. Ultimately, the class action complaint was amended to contain but a single cause of action for declaratory relief “which alleged the arbitration clause and class action waiver in the cardholder agreement violated CLRA.” Id. Thus, the complaint sought solely to prohibit enforcement of the arbitration clause in the cardholder agreement. Defense attorneys demurred and the trial court sustained the demurrer without leave to amend, dismissing the class action complaint with prejudice. Id.

Arbitration Class Action Court Decisions Uncategorized

24 CFR § 3500.8—Use Of HUD-1 Or HUD-1A Settlement Statements Under Regulation X (Real Estate Settlement Procedures Act-RESPA)

For class action defense attorneys who defend against RESPA (Real Estate Settlement Procedures Act) class actions, we provide the text of Regulation X. Congress gave authority to the Secretary of the Department of Housing and Urban Development (HUD) to promulgate regulations for RESPA, and the regulations are set forth in 24 CFR § 3500.1 et seq. The regulations provide for the use of HUD-1 or HUD-1A settlement statements in § 3500.8, which provides:

§ 3500.8. Use of HUD-1 or HUD-1A settlement statements

(a) Use by settlement agent. The settlement agent shall use the HUD-1 settlement statement in every settlement involving a federally related mortgage loan in which there is a borrower and a seller. For transactions in which there is a borrower and no seller, such as refinancing loans or subordinate lien loans, the HUD-1 may be utilized by using the borrower’s side of the HUD-1 statement. Alternatively, the form HUD-1A may be used for these transactions. Either the HUD-1 or the HUD-1A, as appropriate, shall be used for every RESPA- covered transaction, unless its use is specifically exempted, but the HUD-1 or HUD-1A may be modified as permitted under this part. The use of the HUD-1 or HUD-1A is exempted for open-end lines of credit (home-equity plans) covered by the Truth in Lending Act and Regulation Z.

(b) Charges to be stated. The settlement agent shall complete the HUD-1 or HUD-1A in accordance with the instructions set forth in Appendix A to this part.

Statutes & Rules Uncategorized

Labor Law Class Action Filings Top New Class Action Cases Filed In California State And Federal Courts With Antitrust Class Action Lawsuits Coming In Second

To allow class action defense lawyers anticipate claims against which they may have to defend, we provide weekly, unofficial summaries of the 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 from February 23 – February 28, 2007, and employment law class action cases held their familiar grip on the top spot in weekly class action filings.

Class Actions In The News Uncategorized

24 CFR § 3500.7—Good Faith Estimates Required By Regulation X (Real Estate Settlement Procedures Act-RESPA)

For the class action defense attorney who defends against RESPA (Real Estate Settlement Procedures Act) class actions, we provide the text of Regulation X. Congress gave authority to the Secretary of the Department of Housing and Urban Development (HUD) to promulgate regulations for RESPA, and the regulations are set forth in 24 CFR § 3500.1 et seq. The regulations provide for good faith estimates to be provided to borrowers in § 3500.7, which provides:

§ 3500.7. Good faith estimate

(a) Lender to provide. Except as provided in this paragraph (a) or paragraph (f) of this section, the lender shall provide all applicants for a federally related mortgage loan with a good faith estimate of the amount of or range of charges for the specific settlement services the borrower is likely to incur in connection with the settlement. The lender shall provide the good faith estimate required under this section (a suggested format is set forth in Appendix C of this part) either by delivering the good faith estimate or by placing it in the mail to the loan applicant, not later than three business days after the application is received or prepared.

(1) If the lender denies the application for a federally related mortgage loan before the end of the three-business-day period, the lender need not provide the denied borrower with a good faith estimate.

(2) For “no cost” or “no point” loans, the charges to be shown on the good faith estimate include any payments to be made to affiliated or independent settlement service providers. These payments should be shown as P.O.C. (Paid Outside of Closing) on the Good Faith Estimate and the HUD-1 or HUD-1A.

(3) In the case of dealer loans, the lender is responsible for provision of the good faith estimate, either directly or by the dealer.

(4) If a mortgage broker is the exclusive agent of the lender, either the lender or the mortgage broker shall provide the good faith estimate within three business days after the mortgage broker receives or prepares the application.

Statutes & Rules Uncategorized

Class Action Defense Cases-In re Movie Artwork: Judicial Panel On Multidistrict Litigation (MDL) Denies Defense Motion To Centralize Class Action Litigation In The Central District of California

Class Action Lawsuits Involving Copyright and Trademark Infringement Claims did not Warrant Pretrial Coordination Pursuant to 28 U.S.C. § 1407 Judicial Panel on Multidistrict Litigation (MDL) Holds Four class action lawsuits were filed against several defendants alleging various copyright and trademark infringement claims involving “different copyrights and trademarks owned by different entities and covering different movie and cartoon characters.” In re Movie Artwork Copyright Litig., 473 F.Supp.2d 1381, 1382 (Jud. Pan.

Class Action Court Decisions Multidistrict Litigation Uncategorized