Class Action Defense Issues–In re Natural Gas: Objecting Class Members To Class Action Settlements Not Exempt From Being Declared Vexatious Litigants California Court Holds

California Appellate Court Confirms that One Who, as a Nonrepresentative Class Member, Repeatedly Objects to Class Action Settlements may be Deemed a Vexatious Litigant, But Reverses Court Designation for Lack of Evidence

Based on a request that came not from the class action defense but from the class action plaintiffs’ attorneys, a California trial court declared a lawyer, Ernest M. Thayer, a vexatious litigant, see California Code Civ. Proc., §§ 391-391.7, “based on his history of filing objections to class action settlements . . . in which he was a member of the plaintiff class or represented a member of such a class.” In re Natural Gas Anti-Trust Cases I, II, II & IV, 137 Cal.App.4th 387, 390 (Cal.App. 2006). The Court of Appeal agreed that one who engages in conduct that falls within the scope of California’s vexatious litigant statutes is not insulated from being declared a vexatious litigant by virtue of his or her role in a class action as a nonrepresentative class member. Id.

The Court began its analysis with the definition of a vexatious litigant, and then addressed each subsection of the applicable statute in turn. Under California Code of Civil Procedure section 391(b), “a vexatious litigant is a person who does any of the following:

Class Action Court Decisions Uncategorized

Australian Antitrust Class Action Nears Settlement

“Vitamins Class Action” Defense Attorneys and Plaintiffs’ Lawyer Present Proposed $30.5 Settlement to Court On July 17, 2006, the parties involved in Amsterdam’s first cartel class action appeared in court to seek approval of a $30.5 million settlement after a 7-year legal battle. The “vitamins class action’ named Roche, BASF and Aventis and alleged unfair competition price fixing from 1989-1999 for vitamins A, B2, B5, C, E, and beta carotene. Reportedly the Australian Federal Court permitted the case to proceed as a class action in 2002.

Class Actions In The News Uncategorized

Class Action Defense Issues–Gorman v. Wolpoff & Abramson: Law Firm Again Prevails In Action Alleging Violations of FCRA (Fair Credit Reporting Act) and FDCPA (Fair Debt Collection Practices Act)

California Federal Court Grants Summary Judgment in Favor of Wolpoff & Abramson and Client MBNA, and Issues Order to Show Cause re Rule 11 Sanctions Against Plaintiff

The law firm of Wolpoff & Abramson LLP is no stranger to litigation: it routinely prosecutes debt collection actions on behalf of national retail and banking clients; and it has been named in many individual and class action lawsuits by people upset at the Wolpoff firm’s efforts to collect on delinquent accounts. According to a lawyer at Wolpoff & Abramson, the law firm aggressively defends lawsuits filed against it, and statistically it appears to do a very good job in presenting its defense. The most recent court ruling concerning the firm comes out of a California federal court, which granted the defense motions for summary judgment. Gorman v. Wolpoff & Abramson, ___ F.Supp.2d ___, 2006 WL 1728915 (N.D. Cal. June 23, 2006). The action was filed by a lawyer (John Gorman) against MNBA and its attorneys, the Wolpoff firm, asserting causes of action under the federal Fair Credit Reporting Act (FCRA), the federal Fair Debt Collection Practices Act (FDCPA), and libel. (The claims under California state law that existed in Gorman’s original complaint were dismissed without leave to amend in response to an earlier defense motion. _See Gorman v. Wolpoff & Abramson_, 370 F.Supp.2d 1005, 1010-11 (N.D. Cal. 2005).)

Gorman’s action was precipitated by a contested credit card charge of roughly $760 that MBNA initially removed but then reposted. The federal court found that Gorman stopped making payments to MBNA in May 2003, “but then deliberately charged thousands of dollars more on his MBNA credit card” and then in August 2003 demanded that MBNA write off “the entirety of his balance of over $5000.” Instead, MBNA retained Wolpoff to file a debt collection suit against Gorman.

Class Action Court Decisions FCRA Class Actions FDCPA Class Actions Uncategorized

Federal Court Sets Bail For Indicted Class Action Plaintiff Lawyers At First Defense Appearance In Court

Separate articles summarize news reports and the criminal complaint involving the federal indictment of class action law firm Milberg Weiss, Bershad & Schulman and two of its partners for allegedly paying people $11 million in kickbacks to serve as class representatives in shareholder lawsuits. According to Friday’s edition of the San Jose Mercury news, “Prosecutors allege that the secret kickback arrangement often allowed the firm to be among the first to file lawsuits against major corporations on behalf of shareholders.

Class Actions In The News Uncategorized

Tien v. Superior Court (Tenet Healthcare): Class Action Defense Prohibited From Discovering Names Of Putative Class Members in Employment Law Case Who Contacted Plaintiffs’ Lawyer Due To Class Members’ Privacy Rights California Court Holds

Identities of Putative Class Members in Wage and Hour/Overtime Pay Class Action Who Contact Plaintiffs’ Lawyer in Response to Precertification Letter Protected from Disclosure to Class Action Defense Attorneys by Right to Privacy

On May 15, 2006, a California appellate court addressed a discovery issue arising out of a putative class action filed against Tenet Healthcare on behalf of hourly employees alleging failure to provide meal and rest breaks and failure to pay overtime. Tien v. Superior Court, 139 Cal.App.4th 528 (Cal.App. 2006). During the precertification discovery proceedings, plaintiffs’ lawyer asked for the identity and contact information of every class member in the putative class action. In response to obvious privacy concerns, the parties eventually agreed to a procedure whereby a neutral letter was sent to a randomly selected group of approximately 6% of the class members, advising them of the lawsuit and inviting them to contact plaintiffs’ lawyer if they wanted more information. Id., at 532-334. The letter expressly stated, “You are not required to call anyone regarding this lawsuit unless you personally wish to do so. If you do elect to call, please be assured that doing so will not have any negative effect on your employment with any Tenet-related facility.” Id., at 533 (bold in original). Tenet’s class action defense attorneys later sought to discover the names of the people who contacted plaintiffs’ lawyer in response to the letter; plaintiffs sought a protective order on several grounds, including the class members’ right to privacy. The trial court ordered the information provided to defense attorneys concluding that the privacy rights “were outweighed by Tenet’s right to the discovery.” Id., at 534.

Eventually, the matter ended up before the California Court of Appeal on a petition for writ of mandate. The appellate court held that the information sought by Tenet was relevant, Tien, at 535-36, and that it was not protected from disclosure by the attorney work product doctrine, id., at 536, or the attorney-client privilege, id., at 536-38. The Court held, however, that disclosure of the identities of the class members who contacted plaintiffs’ lawyer would violate their right to privacy. Id., at 539.

Class Action Court Decisions Class Actions In The News Uncategorized

In Advance Of Potential Class Action Trials, Merck’s Vioxx Defense Team Secures Another Victory

On July 13, 2006, Merck’s defense team convinced a New Jersey jury that it was not responsible for the 68-year-old plaintiff’s heart attack – securing an important victory in advance of potential trials in the class action cases that have been filed in Vioxx cases. By our count, Merck has taken 6 Vioxx cases to trial (all against individuals): it has prevailed in three (3), it has lost two (2), and it “split” the sixth (the case involved two plaintiffs; Merck won as to one of the plaintiffs and lost as to the other).

Class Actions In The News Uncategorized

Court Certifies Class Action Against State of New York Arising From Recreational Water Illnesses Suffered At Water Park: Class Action Defense Cases

The State of New York must mount a class action defense to a lawsuit seeking damages for illnesses caused by contaminated water at a water park run by New York’s Department of Parks, Recreation, and Historical Preservation. New York’s Seneca Lake Park’s Sprayground was closed in August 2005 after tests revealed that its water tanks were contaminated with cryptosporidiosis, one of many types of recreational water illnesses. The tests were run after the Health Department received more than 100 complaints from people who fell ill after visiting the water park.

Class Actions In The News Uncategorized

California Court Certifies Employment Law Class Action Against Brinker International

Restaurants’ Class Action Defense Fails to Prevent Class Certification in Meal and Rest Breaks Lawsuit The Los Angeles Times reports today that a California court has certified a class action against the operator of restaurant chains Chili’s and Romano’s Macaroni Grill alleging failure to provide employee meal and rest periods required by California state law. According to the report, Judge Patricia Cowett of the San Diego Superior Court certified the class action on behalf of both current and former employees.

Class Actions In The News Uncategorized

Class Action Defense Cases–McCready v. eBay: eBay Not A Debt Collector Under Federal FDCPA Or Reporting Agency Under Federal FCRA, And eBay Lawfully Produced Documents Pursuant To Subpoena, Seventh Circuit Holds

Fair Debt Collection Practices Act Requires Affirmative Action, Fair Credit Reporting Act Does Not Apply to Commercial Activity,

On July 10, 2006, a federal appellate court consolidated two appeals and (1) agreed with eBay’s defense team that eBay was not subject to the federal FDCPA (Fair Debt Collection Practices Act) or the federal FCRA (Fair Credit Reporting Act), and (2) affirmed that eBay compliance with a subpoena for records did not violate the federal ECPA (Electronic Communications Privacy Act) or the federal SCA (Stored Communications Act): it therefore affirmed the dismissals entered in both underlying lawsuits. McCready v. eBay, Inc., ___ F.3d ___, 2006 WL 1881142 (7th Cir. 2006). For clarity, we address the two lawsuits separately. The first lawsuit arose from the fact that plaintiff utilized eBay’s services to operate an online business through which he would buy and sell goods. Several eBay users became unhappy with their business dealings with plaintiff; they used eBay’s “Feedback Forum” to explain their dissatisfaction, and several of them notified eBay of their complaints. eBay told plaintiff of the complaints and explained that his accounts would be suspended if the complaints were not resolved. Ultimately, eBay suspended plaintiff’s accounts but offered to reinstate them if he reimbursed monies to the claimants. “Rather than make good on his sales, [plaintiff] embarked on retaliatory litigation,” Slip Opn., at 2, and a summary of that litigation is described in the Note below. Relevant here, plaintiff filed a federal court complaint against eBay alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 _et seq._, the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 _et seq._, the Electronic Fund Transfers Act (EFTA), 15 U.S.C. §§ 1693 _et seq._, Title 11 of the U.S. Bankruptcy Code, and nine (9) state law claims. _Id._, at 3. The district court granted the defense motion to dismiss the FDCPA and FCRA claims, and declined to exercise supplemental jurisdiction over the state law claims; the parties stipulated to dismissal with prejudice of the bankruptcy claim. _Id._, at 4.

With respect to the FDCPA claim, the Seventh Circuit observed that eBay simply suspended plaintiff’s accounts until he resolved the outstanding fraud complaints and never threatened to take collection against him; the Court held that such conduct could not be deemed an attempt to “collect” a debt. McCready, at 8. With respect to the FCRA claim, plaintiff asserted that eBay’s “Feedback Forum” constituted a “consumer report, id., at 9. The Court quickly dispatched this claim on several grounds:

Class Action Court Decisions FCRA Class Actions FDCPA Class Actions Uncategorized

Employment Law Class Action Cases Again Lead Weekly Filings Confronting California Defense Attorneys

To aid California class action defense attorneys in anticipating claims against which they may have to defend, we provide weekly an unofficial summary of 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 of July 7 – July 13, 2006. We include only those categories with 10% or more of the class action filings during the relevant timeframe.

Class Actions In The News Uncategorized