Class Action Defense Cases-Frazier v. Pioneer: Removal Of Putative Class Action Under CAFA (Class Action Fairness Act) Proper Because Removing Primary Defendant Not A State And Local Controversy Exception Inapplicable Fifth Circuit Holds

Class Action Fairness Act (CAFA) Permits Removal to Federal Court by Any Primary Defendant Without Consent of Other Defendants and States have no Citizenship for Purposes of CAFA’s “Local Controversy” Exception

A putative class action was filed in Louisiana state court against a Canadian company, Pioneer Americas, and Louisiana’s Department of Environmental Quality arising following the release of excessive amounts of mercury into the atmosphere at Pioneer’s hydrogen processing facility. Frazier v. Pioneer Americas LLC, 455 F.3d 542 (5th Cir. 2006). Pioneer’s defense removed the class action to federal court without DEQ’s consent, and the district court denied plaintiffs’ motion to remand it back to state court. In the face of the Class Action Fairness Act of 2005 (CAFA), plaintiffs “did not challenge defendants’ allegation of prima facie CAFA jurisdiction – minimal diversity and at least $5 million in controversy” – but rather argued that two exceptions applied: the exception for class actions against States and the “local controversy exception.” Id., at 544. The district court agreed with the defense that neither exception applied, and the Fifth Circuit affirmed.

Preliminarily, the Circuit Court addressed the $5 million threshold requirement for jurisdiction, even though it found that plaintiffs had not properly raised the issue. The Court explained that CAFA requires only “minimal diversity” and concluded that “the petition, seeking damages for severe injuries suffered by at least 500 people and attorneys’ fees, makes it ‘facially apparent’ that at least $5 million is in controversy, in the aggregate.” Frazier, at 545 (footnotes omitted).

Uncategorized

Defense Attorneys Facing Fewer Class Action Lawsuits Challenging Backdated Stock Option Awards

Plaintiff Lawyers Focus on Derivative Actions Rather than Class Action Lawsuits to Attack Stock Option Backdating Programs Defense attorneys have expressed surprise at the relatively limited number of class action lawsuits filed in the wake of options-backdating disclosures; Julie Creswell of the New York Times has noticed this, too. In today’s edition of the New York Times, Creswell provides a possible explanation for the dearth of class action filings: “Even when it is clear that options grant dates were manipulated, it is less clear how to calculate damage to specific shareholders.

Class Actions In The News Uncategorized

Boeing Class Action Defense Case-Carpenter v. Boeing: Federal District Court Orders In Labor Law Class Action Decertifying Subclass And Granting Defense Motion For Summary Judgment Affirmed By Tenth Circuit

Tenth Circuit Holds that Interlocutory Review of Class Certification Orders Must be Sought within 10 days of Initial Order, not Order Denying Reconsideration, and that Plaintiffs’ Statistical Evidence Failed to Establish Prima Facie Case of Disparate Impact Because Males may have Worked more Overtime Hours for Reasons Other than Gender

Female employees filed a putative employment class action in federal district court alleging Title VII Civil Rights Act sex discrimination against Boeing on theories of both disparate impact and disparate treatment. Following substantial litigation, that included class certification of certain subclasses, the district court granted a defense motion for summary judgment as to the “hourly” wages subclass “disparate impact” overtime claim. Plaintiffs appealed this ruling – which the district court certified as a final judgment under FRCP Rule 54(b) – and several other class-certification ruling. The Tenth Circuit affirmed. Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006).

The Circuit Court began with the class certification rulings, noting that interlocutory appeal of class certification orders may be granted only if sought within 10 days of entry of the order. Carpenter, at 1189 (citing FRCP Rule 23(f)). In this appeal, plaintiffs filed a motion for class certification, which the district court granted in part and denied in part. Almost a year later, plaintiffs filed a “Renewed Motion for Class Certification”; the motion was denied. A few months later plaintiffs filed a “Second Renewed Motion for Class Certification”; this, too, was denied and plaintiffs filed their Rule 23(f) application within 10 days thereafter. Id., at 1188. Boeing argued that the application was untimely, id., at 1189; the Circuit Court agreed and dismissed the application for lack of jurisdiction, id., at 1190-92.

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

15 U.S.C. § 1681s – Administrative Enforcement: Statutory Provisions of the FCRA (Fair Credit Reporting Act) for Class Action Defense Attorneys

As a resource for the class action defense lawyer who defends against class action under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The article sets forth the statutory provisions concerning administrative enforcement of the FCRA by the Federal Trade Commission:

§ 1681s. Administrative enforcement

(a) (1) Enforcement by Federal Trade Commission. Compliance with the requirements imposed under this title shall be enforced under the Federal Trade Commission Act [15 U.S.C. §§ 41 et seq.] by the Federal Trade Commission with respect to consumer reporting agencies and all other persons subject thereto, except to the extent that enforcement of the requirements imposed under this title is specifically committed to some other government agency under subsection (b) hereof. For the purpose of the exercise by the Federal Trade Commission of its functions and powers under the Federal Trade Commission Act, a violation of any requirement or prohibition imposed under this title shall constitute an unfair or deceptive act or practice in commerce in violation of section 5(a) of the Federal Trade Commission Act [15 U.S.C. § 45(a)] and shall be subject to enforcement by the Federal Trade Commission under section 5(b) thereof [15 U.S.C. § 45(b)] with respect to any consumer reporting agency or person subject to enforcement by the Federal Trade Commission pursuant to this subsection, irrespective of whether that person is engaged in commerce or meets any other jurisdictional tests in the Federal Trade Commission Act. The Federal Trade Commission shall have such procedural, investigative, and enforcement powers, including the power to issue procedural rules in enforcing compliance with the requirements imposed under this title and to require the filing of reports, the production of documents, and the appearance of witnesses as though the applicable terms and conditions of the Federal Trade Commission Act were part of this title. Any person violating any of the provisions of this title shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though the applicable terms and provisions thereof were part of this title.

(2) (A) In the event of a knowing violation, which constitutes a pattern or practice of violations of this title, the Commission may commence a civil action to recover a civil penalty in a district court of the United States against any person that violates this title. In such action, such person shall be liable for a civil penalty of not more than $2,500 per violation.

(B) In determining the amount of a civil penalty under subparagraph (A), the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.

(3) Notwithstanding paragraph (2), a court may not impose any civil penalty on a person for a violation of section 1681s-2(a)(1) of this title unless the person has been enjoined from committing the violation, or ordered not to commit the violation, in an action or proceeding brought by or on behalf of the Federal Trade Commission, and has violated the injunction or order, and the court may not impose any civil penalty for any violation occurring before the date of the violation of the injunction or order.

(b) Enforcement by other agencies.

Compliance with the requirements imposed under this title with respect to consumer reporting agencies, persons who use consumer reports from such agencies, persons who furnish information to such agencies, and users of information that are subject to subsection (d) of section 1681m of this title shall be enforced under

FCRA Class Actions Statutes & Rules Uncategorized

15 U.S.C. §§ 1681q and 1681r – Obtaining Information Under False Pretenses/ Unauthorized Disclosures by Officers or Employees: Statutory Provisions of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer

As a resource for class action defense attorneys who must defend against actions brought under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The statutory provisions concerning obtaining information under false pretenses and concerning unauthorized disclosure by officers or employees are set forth in Sections 1681q and 1681r, respectively, as follows: § 1681q. Obtaining information under false pretenses Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under title 18, United States Code, imprisoned for not more than 2 years, or both.

FCRA Class Actions Statutes & Rules Uncategorized

Class Action Labor Law/Overtime Claims Regain Top Spot In California Weekly Class Action Filings

To allow the class action defense lawyer to anticipate claims against which she or he 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 August 25 – August 31, 2006, and employment law cases regained sole possession of the top spot on the list.

Class Actions In The News Uncategorized

15 U.S.C. § 1681p – Jurisdiction of Courts/Limitation of Actions: Statutory Provisions of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Attorneys

As a resource for attorneys defending against class actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The statutory provisions concerning jurisdiction of courts and applicable statutes of limitation are set forth in Section 1681m as follows: § 1681p. Jurisdiction of courts; limitation of actions An action to enforce any liability created under this title may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction, not later than the earlier of (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs.

FCRA Class Actions Statutes & Rules Uncategorized

15 U.S.C. §§ 1681n and 1681o – Civil liability for Willful and Negligent Noncompliance: Statutory Language of the FCRA (Fair Credit Reporting Act) for Class Action Defense Attorneys

As a resource for defense attorneys who defend against class action under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The article sets forth the statutory provisions covering statutory liability for willful and negligent noncompliance with FCRA, which is contained in Section 1681n and 1681o, respectively: § 1681n. Civil liability for willful noncompliance (a) In general. Any person who willfully fails to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to the sum of

FCRA Class Actions Statutes & Rules Uncategorized

Class Action Defense Issues-Clark v. Capital Credit: Ninth Circuit Affirms In Part And Reverses In Part Federal District Court Judgment In Favor Defense In FDCPA (Fair Debt Collection Practices Act) Case

Ninth Circuit Resolves Several Issues of First Impression Concerning Federal Fair Debt Collection Practices Act (FDCPA), Holding Debtor Can Waive “Cease Communication” Directive, Debt Collectors May Rely on Information Provided by Creditors to Verify Debt, FDCPA is a Strict Liability Statute, and One Act Can Support Multiple Violations

Debtors filed suit against a debt collection agency, its employee and its outside counsel alleging various violations of the federal Fair Debt Collection Practices Act (FDCPA) and Oregon’s Unfair Debt Collection Practices Act. The defense and debtors filed cross-motions for summary judgment; the district court granted the motion brought by the attorney, partially granted the motion brought by the debt collector, and denied the motion brought by the debtors. The Ninth Circuit affirmed in part and reversed in part. Clark v. Capital Credit & Collection Services, Inc., ___ F.3d ___, 2006 WL 2441705 (9th Cir. August 24, 2006). We provide a brief summary of the case, which the Ninth Circuit characterized as “present[ing] a complicated web of problems that has required us to address a litany of issues for which there is a dearth of applicable precedent” and for which it “endeavored to adopt a construction of the FDCPA that recognizes ‘there is room within the [FDCPA] for ethical debt collectors to make occasional unavoidable errors,” Slip Opn., at 10165 (citation omitted).

In an effort to collect a debt, a debt collector sent the debtor a collection notice letter. The debtor disputed the debt and detailed billing problems with the creditor. The debt collector sent a second notice, enclosing an itemized statement from the creditor and claiming that the statement adequately verified the debt. The debtor requested “proper verification” and instructed the debt collector to cease making telephone calls. Slip Opn., at 10143. The debt collector then retained counsel who, in response to a demand for verification of the debt and an end to telephone communications, responded with the same itemized statement previously provided to the debtor. The debtor subsequently called the attorney to discuss the debt, but received a return call from the debt collection agency that “so upset [her] that she was required to obtain therapy.” Id., at 10144. The debtors filed suit.

Class Action Court Decisions FDCPA Class Actions Uncategorized

In re AT&T-Class Action Defense Cases: District Court Did Not Abuse Its Discretion In Approving $21 Million Attorney Fee Award Out Of $100 Million Securities Fraud Class Action Settlement Fund Third Circuit Holds

District Court Must Examine Class Action Attorney Fee Awards Closely but not According to a Strict Formula and, so Viewed, Approval of Class Action Settlement was Proper

Plaintiffs filed a federal securities fraud class action against AT&T based on allegedly false statements that artificially inflated stock prices. The defense waged an intense battle for several years but ultimately settled the class action claims for $100 million eight (8) days into a jury trial. The district court approved the settlement, which included payment of attorney fees equal to 21.25% of the settlement proceeds ($21.25 million), and four objectors appealed. The Third Circuit affirmed. In re AT&T Corp. Securities Litig., 455 F.3d 160 (3d Cir. 2006).

The July 20, 2006 opinion details the typical procedure for assessing attorney fees in the Third Circuit, and analyzed each of the factors the district court was required to consider when determining whether to approve a class action settlement. In the Third Circuit, those factors are set forth in Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), and include:

Class Action Court Decisions Uncategorized