Trezvant v. Fidelity-Class Action Defense Cases: Massachusetts Federal Court Grants Defense Motion To Partially Dismiss Class Action That Sought Overtime Pay Under Fair Labor Standards Act (FLSA) And New Hampshire State Law

Massachusetts District Court Grants Joint Motion To Decertify Class And Grants Defense Motion To Dismiss New Hampshire State Law Class Action Overtime Claims

Salaried employees filed a putative class action alleging that they were misclassified as exempt and seeking overtime pay under the federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and under New Hampshire state law. Trezvant v. Fidelity Employer Servs. Corp., 434 F.Supp.2d 40 (D. Mass. 2006). During the litigation, the Massachusetts federal district court granted plaintiffs’ motion to conditionally certify an FLSA class action, and a defense motion to dismiss the state law claims contained in the class action complaint. Later still, the district court granted a joint motion to decertify the class because only a few class members opted into the lawsuit. The court then issued a single memorandum discussing these rulings. Id., at 42.

Class Action Court Decisions Employment Law Class Actions Uncategorized

Dreyfus Mutual Funds-Class Action Defense Cases: Shareholders’ Investment Company Act § 36(b) Claim Must Be Brought Derivatively Not As A Class Action So Both It And § 48(a) Claim Based On It Fail Pennsylvania Federal Court Holds

Federal District Court Grants Defense Motion for Judgment on Pleadings and Dismisses Class Action Because § 36(b) Claims under Investment Company Act Cannot Proceed as a Class Action But Rather Must be Brought Derivatively A putative class action alleging securities fraud was filed against investment advisors, distributors and directors of Dreyfus brand mutual funds (“Dreyfus”); the class action complaint asserted that “investment advisors and distributors of Dreyfus brand mutual funds, engaged in fraudulent fee arrangement schemes in violation of federal and state law.

Class Action Court Decisions Uncategorized

Class Action Defense Cases—Brieger v. Tellabs: District Court Denies Defense Motion To Reassign ERISA Class Action To Judge Who Handled Related PSLRA (Private Securities Litigation Reform Act) Case

Judge Refuses to Assign Related Case to Judge Who Handled Prior Cases Because of Uncertainty Created by Appeal

An employee filed a putative class action against his employer alleging a breach of fiduciary duty under ERISA in that its Profit Sharing and Savings Plan imprudently invested in the employer’s securities and published misleading information about the safety of those securities. Brieger v. Tellabs, Inc., 434 F.Supp.2d 567 (N.D. Ill. 2006). Class action defense attorneys agreed with the employee’s request that the class action be deemed “related” to two other cases against the employer. Defense attorneys then requested that the three cases be reassigned to a different judge (St. Eve) who handled a lawsuit against the employer alleging securities laws violations under PSLRA (Private Securities Litigation Reform Act). The district court denied the defense request.

Class Action Court Decisions Uncategorized

Class Action Defense Cases-Meyers v. Texas: Defense Waives Right To Object To Federal Jurisdiction By Removing Class Action To District Court Fifth Circuit Holds

Fifth Circuit Holds that Defense Motion to Dismiss for Lack of Subject Matter Jurisdiction Should have been Denied Because State Removed Class Action to Federal Court Disabled persons filed a putative class action against the State of Texas alleging that its fee-based parking placard program violated the federal American with Disabilities Act (ADA); the defense removed the action to federal court and then moved to dismiss the action on state sovereign immunity grounds.

Class Action Court Decisions Removal & Remand Uncategorized

15 U.S.C. § 1681j – Charges for Certain Disclosures: Statutory Language of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer

As a resource for class action defense attorneys who defend against actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA.

§ 1681j. Charges for certain disclosures

(a) Free Annual Disclosure

(1) Nationwide Consumer Reporting Agencies

(A) In general.

All consumer reporting agencies described in subsections (p) and (w) of section 1681a of this title shall make all disclosures pursuant to section 1681g of this title once during any 12-month period upon request of the consumer and without charge to the consumer.

(B) Centralized source.

Subparagraph (A) shall apply with respect to a consumer reporting agency described in section 1681a(p) of this title only if the request from the consumer is made using the centralized source established for such purpose in accordance with section 211(c) of the Fair and Accurate Credit Transactions Act of 2003.

(C) Nationwide Specialty Consumer Reporting Agency

(i) In general.

The Commission shall prescribe regulations applicable to each consumer reporting agency described in section 1681a(w) of this title to require the establishment of a streamlined process for consumers to request consumer reports under subparagraph (A), which shall include, at a minimum, the establishment by each such agency of a toll-free telephone number for such requests.

(ii) Considerations.

In prescribing regulations under clause (i), the Commission shall consider–

(I) the significant demands that may be placed on consumer reporting agencies in providing such consumer reports;

(II) appropriate means to ensure that consumer reporting agencies can satisfactorily meet those demands, including the efficacy of a system of staggering the availability to consumers of such consumer reports; and

(III) the ease by which consumers should be able to contact consumer reporting agencies with respect to access to such consumer reports.

(iii) Date of issuance.

The Commission shall issue the regulations required by this subparagraph in final form not later than 6 months after the date of enactment of the Fair and Accurate Credit Transactions Act of 2003.

(iv) Consideration of ability to comply.

The regulations of the Commission under this subparagraph shall establish an effective date by which each nationwide specialty consumer reporting agency (as defined in section 1681a(w) of this title) shall be required to comply with subsection (a), which effective date—

(I) shall be established after consideration of the ability of each nationwide specialty consumer reporting agency to comply with subsection (a); and

(II) shall be not later than 6 months after the date on which such regulations are issued in final form (or such additional period not to exceed 3 months, as the Commission determines appropriate).

FCRA Class Actions Statutes & Rules Uncategorized

California Defense Attorneys Face Slew Of New Public Accommodation/ADA Class Action Cases

To aid California class action defense attorneys in anticipating 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. Thus far, employment law cases have led the list each week since we began making these reports.

Class Actions In The News Uncategorized

15 U.S.C. § 1681i – Procedure in Case of Disputed Accuracy: Statutory Language of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer

As a resource for class action defense attorneys who defend against actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. This article sets forth for the procedure to be followed if a consumer disputes the accuracy of the reported debt:

§ 1681i. Procedure in case of disputed accuracy

(a) Reinvestigations of Disputed Information

(1) Reinvestigation Required

(A) In general.

Subject to subsection (f), if the completeness or accuracy of any item of information contained in a consumer’ s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.

(B) Extension of period to reinvestigate.

Except as provided in subparagraph (C), the 30-day period described in subparagraph (A) may be extended for not more than 15 additional days if the consumer reporting agency receives information from the consumer during that 30-day period that is relevant to the reinvestigation.

(C) Limitations on extension of period to reinvestigate.

Subparagraph (B) shall not apply to any reinvestigation in which, during the 30-day period described in subparagraph (A), the information that is the subject of the reinvestigation is found to be inaccurate or incomplete or the consumer reporting agency determines that the information cannot be verified.

(2) Prompt Notice of Dispute to Furnisher of Information

(A) In general.

Before the expiration of the 5-business-day period beginning on the date on which a consumer reporting agency receives notice of a dispute from any consumer or a reseller in accordance with paragraph (1), the agency shall provide notification of the dispute to any person who provided any item of information in dispute, at the address and in the manner established with the person. The notice shall include all relevant information regarding the dispute that the agency has received from the consumer or reseller.

(B) Provision of other information.

The consumer reporting agency shall promptly provide to the person who provided the information in dispute all relevant information regarding the dispute that is received by the agency from the consumer or the reseller after the period referred to in subparagraph (A) and before the end of the period referred to in paragraph (1)(A).

(3) Determination That Dispute Is Frivolous or Irrelevant

(A) In general.

Notwithstanding paragraph (1), a consumer reporting agency may terminate a reinvestigation of information disputed by a consumer under that paragraph if the agency reasonably determines that the dispute by the consumer is frivolous or irrelevant, including by reason of a failure by a consumer to provide sufficient information to investigate the disputed information.

(B) Notice of determination.

Upon making any determination in accordance with subparagraph (A) that a dispute is frivolous or irrelevant, a consumer reporting agency shall notify the consumer of such determination not later than 5 business days after making such determination, by mail or, if authorized by the consumer for that purpose, by any other means available to the agency.

(C) Contents of notice.

A notice under subparagraph (B) shall include

(i) the reasons for the determination under subparagraph (A); and

(ii) identification of any information required to investigate the disputed information, which may consist of a standardized form describing the general nature of such information.

FCRA Class Actions Statutes & Rules Uncategorized

Class Action Defense Cases-Saxton v. Title Max: Certification Of Federal Fair Labor Standards Act (FLSA) Class Action Denied For Failure To Demonstrate That Class Members Desired To Opt-In And That Plaintiffs Are Similarly Situated Alabama Court Holds

Defense Attorneys for Employer Successfully Defeat Plaintiff Lawyer’s Motion to Conditionally Certify Class on Grounds that Employees Failed to Meet Eleventh Circuit’s Two-Part Dybach Test

Employees filed a putative class action alleging overtime pay violations of the federal Fair Labor Standards Act (FLSA). Saxton v. Title Max of Alabama, Inc., 431 F.Supp.2d 1185 (N.D. Ala. 2006). Over defense objections, the employees sought conditional class certification and permission to send notice of the class action to class members. The lawsuit alleged that the employer’s assistant managers were systematically denied overtime pay in violation of the FLSA, id., at 1186, despite the fact that the employer “has a policy, which store managers are directed to enforce, that assistant managers are not to work over 40 hours in a week,” id., at 1188. The district court agreed with class action defense attorneys that plaintiffs failed to satisfy the two-part test enunciated in Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d 1562 (11th Cir. 1991), and therefore denied the motion.

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

Verizon Class Action Defense Case: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Transfer Government Surveillance Class Actions To Northern District Of California

Verizon Defense Persuades MDL Judicial Panel that Class Actions Arising out of Governmental Surveillance of Telecommunication Activity and Verizon’s Participation or Cooperation in such Activity Would Benefit from Transfer to Northern District of California After seventeen (17) class action lawsuits were filed in thirteen (13) federal courts against Verizon Communications, AT&T, BellSouth and certain affiliated companies arising out of the federal government’s telecommunication surveillance activities, and the defendants’ participation in, or cooperation with, that activity, Verizon’s defense attorneys moved the Judicial Panel on Multidistrict Litigation (MDL) to transfer the cases to the District Court for the District of Columbia.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases-Richards v. Delta Air Lines: Denial Of Class Certification Proper Because Lawsuit Predominantly Sought Monetary Damages And Did Not Involve Common Questions Of Law Or Fact D.C. Circuit Holds

Circuit Court Affirms Dismissal of Putative Class Action Against Airline that Alleged Warsaw Convention did not Limit Liability for Lost or Damaged Baggage Because Action did not Satisfy Rule 23(b)(2) or Rule 23(b)(3)

Following the loss of a single piece of luggage on an international flight, plaintiff filed a putative class action against the airline alleging that she was entitled to the fair market value of the luggage and its contents, not the “maximum reimbursement” amount Delta calculated was due under the Warsaw Convention (now superseded). Richards v. Delta Air Line, Inc., 453 F.3d 525, 526 (D.C. Cir. 2006). In essence, the complaint alleged that because Delta did not “as a matter of practice” record the weight of the luggage on passenger luggage tickets, the defense could not rely upon the Warsaw Convention. Id., at 526-27. Plaintiff’s lawyer moved for class certification under Rule 23(b)(2), and later alternatively sought class certification under Rule 23(b)(3). Id., at 527-28. But while the district court found that the requirements of Rule 23(a) had been met, it refused to certify a class because the requirements of Rule 23(b)(2) or (b)(3) had not been met. With respect to Rule 23(b)(2), the court held that class certification “is not appropriate where plaintiff’s claims are predominantly monetary relief,” and found further that the class action complaint essentially sought payment of monetary damages despite the fact that it sought a declaratory judgment. Id., at 528. And with respect to Rule 23(b)(3), the district court held that Delta’s “accord and satisfaction” defense would require “the application of varying state laws and a case-by-case factual inquiry,” thereby defeating a claim that common questions of law or fact predominate. Id. Reviewing the judgment “for abuse of discretion or legal error,” id., at 530, the D.C. Circuit affirmed.

Certification of Class Actions Class Action Court Decisions Uncategorized