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

Class Action Defense Issues-Merck Defense Of Individual Federal Vioxx Action Improves Likelihood That Class Action Status Will Be Denied

Latest Defense Verdict Weighs Heavily Against Class Action Treatment of Vioxx Claims The verdict is in on Merck’s eleventh Vioxx trial, and a Louisiana federal jury agreed with defense attorneys that a Utah bank manager who suffered a heart attack after using Vioxx for almost a year had not established Vioxx caused his injury. Defense attorneys argued that the manager had used the drug for less than one year and had stopped using the drug four days before he suffered his heart attack.

Class Actions In The News 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

Ruiz v. Bally-Class Action Defense Cases: Massachusetts Federal Court Denies Defense Motion To Dismiss Class Action For Lack Of Jurisdiction But Grants Defense Motion To Dismiss Class Action For Failure To State A Claim

By Holding Itself Out as Operating in Massachusetts and by Drafting Membership Contract in Dispute Bally Subjected Itself to the Jurisdiction of the Massachusetts Federal Court, but Membership Contract was not Unlawful Thus Warranting Dismissal of Class Action Complaint

Plaintiff filed a putative class action in Massachusetts state court against Bally Total Fitness and Holiday Universal (a subsidiary of Bally) alleging common law and various consumer protection law violations arising out of a health club membership contract she signed that required payment of a $1565 membership fee plus dues of $8 per month. The membership fee could be financed at 14.75% interest for 36 months. If a customer canceled her membership within that 36-month period, she need no longer pay the monthly dues but she remained liable for the entire membership fee. The Contract also contained a provision limiting the liability of the health club “for the loss or theft of, or damage to, the personal property of members or guests.” Ruiz v. Bally Total Fitness Holding Corp., 447 F.Supp.2d 23, 25-26 (D. Mass. 2006). After defense attorneys removed the case to federal court on grounds of diversity jurisdiction, the defense moved to dismiss the class action for failure to state a claim, and argued also that the court lacked personal jurisdiction over Bally. Id., at 25. The district court held that it had personal jurisdiction over Bally, but granted the defense motion to dismiss the class action for failure to state a claim.

With respect to the personal jurisdiction claim, the federal court recognized that jurisdiction over a subsidiary does not establish jurisdiction over the parent company. The district court held at page 27, “In consideration of 1) the requirement that [plaintiff’s] evidence of jurisdiction be accepted at face value, 2) the fact that Bally has held itself out as a company operating in Massachusetts and 3) the fact that the dispute in this case concerns a form membership contract that, in all likelihood, was developed by the parent corporation and not Holiday, the Court concludes that plaintiff has adequately demonstrated a basis for this Court’s exercise of personal jurisdiction over Bally.”

Class Action Court Decisions Uncategorized

More Fallout From Indictment Of Class Action Firm Milberg Weiss As Court Delays Approval Of Class Action Settlement Pending Review Of Class Action Plaintiffs’ Testimony

Ameet Sachdev of the Chicago Tribune reports that Cook County Circuit Judge Nancy Arnold has delayed approval of a three-year-old stockholders class action against Boeing because of the federal court indictment handed down against lead plaintiffs’ counsel Milberg Weiss Bershad & Schulman. After the settlement had been submitted for her approval, Judge Arnold required that the six named plaintiffs appear in court and testify as to how they became plaintiffs in the case, including when the became Boeing stockholders and the amount of stock that they owned.

Class Actions In The News Uncategorized

Moniz v. Bayer-Class Action Defense Cases: Defense Removal Of Class Action To Federal Court Proper Under CAFA (Class Action Fairness Act of 2005) Because Of Post-CAFA Amendment To Class Action Complaint Massachusetts Federal Court Holds

Massachusetts Federal Court Agrees With Defense that Post-CAFA Amendment of Class Action Complaint Rendered Suit Removable But Rejects Defense Claim that CAFA Shifts Burden of Proof to Plaintiff to Prove Remand is Warranted

Plaintiff filed a putative class action in Massachusetts state court against Bayer, Crompton Corporation and Uniroyal Chemical on February 10, 2005, alleging a conspiracy to fix prices on certain rubber and urethane products. Plaintiff amended the complaint in May 2005, and defense attorneys consented to the filing of a second amended class action complaint on February 6, 2006. Defense attorneys then removed the action to federal court on February 10, 2006, under the Class Action Fairness Act of 2005 (CAFA). Moniz v. Bayer A.G., 447 F.Supp.2d 31, 32-33 (D.Mass. 2006). Plaintiff filed a motion to remand the action to state court.

CAFA became effective on February 18, 2005. As a preliminarily matter, the federal court rejected the defense claim that CAFA shifted the burden of proof to the plaintiff to demonstrate that remand is warranted. Moniz, at 33-34. As the district court explained at page 34, “the clear majority of courts that have addressed the issue have held that, even where CAFA applies, the burden of proof on a motion to remand remains with the removing party because the text of the statute says nothing about changing that long-standing rule.”

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

FLSA Class Action Defense Cases-Choimbol v. Fairfield Resorts: Virginia Federal Court Conditionally Certifies Class Action Under Fair Labor Standards Act (FLSA) Holding Only “Minimal Evidence” Required To Support Class Action Treatment

FLSA Class Action Certification within Court’s Discretion Even if Supported by only “Minimal Evidence” Virginia Federal Court Holds and Conditionally Certifies Class Action Subject to Defense Motion for Decertification Following Discovery

Plaintiffs filed a class action against their employers (see Note) alleging failure to pay overtime in violation of the federal Fair Labor Standards Act (FLSA). Choimbol v. Fairfield Resorts, Inc., 475 F.Supp.2d 557, 558 (E.D. Va. 2006). Plaintiffs moved the court to certify the lawsuit as a class action; defense attorneys objected on the grounds that plaintiffs were not “similarly situated” to the class and had introduced no evidence that defendant Fairfield Resorts was a “joint employer” of plaintiffs or members of the putative class. The district court rejected defense arguments and conditionally certified a class action, holding that it had authority to grant the motion for class action treatment based on “minimal evidence” subject to a subsequent motion by defense attorneys for decertification of the class action.

The facts underlying the class action complaint are rather complicated but the salient facts are these, found at pages 559 through 561 of the district court’s opinion: Fairfield Resorts operates timeshares including Kingsgate, Governor’s Green and Patriot Place timeshare locations in Virginia. Fairfield contracted with Sandulyak and Nunnery to hire immigrants to provide laundry, housekeeping and grounds maintenance services at certain properties in Virginia. Sandulyak (doing business as Carolina Janitorial) provides regional immigrant labor, and is “commonly owned, staffed and operated” by national immigrant providers Ambassador Hospitality and Proline Management. Fairfield’s contract with Ambassador provided that the immigrant laborers would be employees and Carolina Janitorial and that Fairfield had no right to supervise, direct or control the laborers. In practice, however, Sandulyak failed to supervise the laborers, Carolina Janitorial did not have a manager at the properties, and Sandulyak only visited the properties once every 1-3 months. Rather, for more than a year responsibility for supervision and day-to-day control over the laborers fell to Nunnery, who had negotiated the agreement with Ambassador “in the name and on behalf of Fairfield.”

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

Class Action Defense Cases—In re Dep’t of Veteran Affairs: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Centralize Class Action Litigation In The District of the District of Columbia

Judicial Panel Rejects Opposition to Defense Request for Pretrial Coordination Pursuant to 28 U.S.C. § 1407 and Grants Defense Motion for Centralization of Three Class Action Lawsuits On May 3, 2006, a laptop computer and external hard drive was stolen from the home of an employee of the Department of Veterans Affairs, resulting in the loss of “the names, dates of birth, and social security numbers of approximately 26 million veterans and active duty military personnel.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases—In re Novartis: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Centralize Two Employment Law Class Action Lawsuits In The Southern District Of New York

Judicial Panel Grants Unopposed Defense Request for Pretrial Coordination of Two Class Action Complaints Pursuant to 28 U.S.C. § 1407

Plaintiffs filed two class action lawsuits in federal court against Novartis Pharmaceuticals Corp. (NPC), Novartis Corp., Novartis Finance Corp., and Novartis Services, Inc., alleging violations of state and federal labor laws concerning compensation for overtime; specifically, the complaints alleged that defendants had misclassified NPC sales representatives as exempt from overtime pay. In re Novartis Wage & Hour Litig., 460 F.Supp.2d 1382 (Jud.Pan.Mult.Lit. 2006). Pursuant to 28 U.S.C. § 1407, defense attorneys moved the Judicial Panel on Multidistrict Litigation (MDL) to centralize the lawsuits for pretrial purposes in the Southern District of New York, where one of the lawsuits was pending. Id. The motion was unopposed. The Panel agreed with defense attorneys that centralization was warranted even though only two class action lawsuits had been filed, and agreed further – in accord with the agreement of the parties – that the Southern District of New York was the appropriate transferee court. Id.

NOTE: This transfer order illustrates (1) that Section 1407 does not require a minimum number of lawsuits be on file in order to warrant transfer, and (2) that the Judicial Panel independently determines whether centralization is warranted and, if so, the appropriate transferee court. Despite the agreement of the parties, the Judicial Panel explained that it selected the Southern District of New York based on its independent evaluation:

Class Action Court Decisions Multidistrict Litigation Uncategorized

Employment Law Class Action Lawsuits Again Dominate Claims Facing Class Action Defense Attorneys In California

Class action defense lawyers continue to face a greater number of labor law class action filings in California than any other category. As frequent visitors know, 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 November 3 – November 9, with employment law class action cases retaining their firm grip on the top spot on the class action filings list.

Class Actions In The News Uncategorized