Merck Strategy Of Fighting For Individual Vioxx Lawsuits Rather Class Action Treatment Again Pays Off With Florida Jury Verdict In Favor Of Defense

The Wall Street Journal reports today that Merck has won another trial, bringing to 11 the number of verdicts in its favor against five (5) losses. The latest victory came at the hands of a Florida jury, reportedly the first Vioxx case to go to trial in that state. Thousands of individual and class action lawsuits were filed against Merck after it pulled Vioxx from the market in September 2004, and Merck has argued vigorously for the right to litigate each case on an individual rather than class action basis.

Class Actions In The News Uncategorized

CB Richard Ellis Group Class Action Defense Team Settles Sexual Harassment Class Action Lawsuit

The Los Angeles Times reports today that CB Richard Ellis Group has agreed to pay upwards of $150,000 per female employee under a class action settlement of a lawsuit alleging sexual harassment. According to the report, the class action complaint alleged that female employees were “subjected to lewd remarks, unwanted groping and sexual propositions by male co-workers,” as well as pornographic material “distributed via email and displayed on office computers.” CB Richard Ellis did not admit any of the class action allegations, but agreed to pay $3.

Class Actions In The News Uncategorized

Class Action Lawsuit Filings Surge But Labor Law Class Action Cases Retain Firm Grip On Top Spot In Weekly Class Action Lawsuits Filed In California State And Federal Courts

As a resources to California class action defense attorneys, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits 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. We include only those categories that include 10% or more of the class action filings during the relevant timeframe. This report covers the time period from September 28 – October 4, 2007, during which time 62 new class action lawsuits were filed in these California state and federal courts.

Class Actions In The News Uncategorized

Class Action Defense Cases-In re Wellnx: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Centralize Class Action Lawsuits But Selects District of Massachusetts As Transferee Court

Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 but Rejects Defense Request to Centralize Class Actions in Maryland or New Jersey, Instead Transferring the Class Actions to the District of Massachusetts Nine class action lawsuits were filed against Wellnx Life Sciences and others seeking damages for strict liability, fraud and unjust enrichment arising from the manufacture, marketing and sale of Wellnx Slimquick and/or NV products, and several class actions alleged that the marketing and sale of the products violated various state consumer protection laws.

Class Action Court Decisions Multidistrict Litigation Uncategorized

California Federal Court Grants Class Action Treatment to Lawsuit Challenging Accessibility of Target’s Website to the Blind

Class Action Certification Motion Granted by Federal Court in California Class Action Attacking Target’s Failure to Permit “Screen-Reading” Software to Work on its Website Molly Selvin of the Los Angeles Times reports that U.S. District Court Judge Marilyn Hall Patel has granted plaintiffs’ class action certification motion in a California class action against Target challenging the accessibility of the company’s website to the blind. According to Ms. Selvin, the class action complaint alleges that Target’s website violates the federal Americans with Disabilities Act (ADA) as well as California state law because “screen-reading software doesn’t work on parts of its website, essentially making it unusable to blind people.

Class Actions In The News Uncategorized

Class Action Certification Motion Granted In ADA (Americans With Disabilities Act) California Class Action Against Target Challenging Target Website’s Limited Ability To Utilize Screen-Reading Software Used By The Blind

Molly Selvin of the Los Angeles Times reports today that a California federal district court has granted class action status to a lawsuit against Target seeking website accessibility for the blind. The class action complaint alleges that Target has failed to upgrade its website by implementing “technologically simple and not economically prohibitive” code that would allow screen-reading software to vocalize content on the Target website. In certifying the class action, the federal court reportedly noted that this is “an age when commerce is increasingly conducted on and through the Internet.

Class Actions In The News Uncategorized

Wal-Mart Reportedly Hit With Additional $62 Million Damage Award In Pennsylvania Labor Law Class Action Lawsuit

Following $78.5 Million Jury Verdict in Labor Law Class Action, Pennsylvania Court Awards an Additional $62.3 Million for Wal-Mart’s Withholding of Employee Pay for More than 30 Days The Associated Press reports that a Pennsylvania court yesterday awarded an additional $62.3 million against Wal-Mart in a labor law class action. The class action resulted in a jury verdict of $78.5 million, but an additional 125,000 members of the class qualified for additional damages because Wal-Mart withheld their pay for more than 30 days.

Class Actions In The News Uncategorized

Labor Law Class Action Defense Cases-Estrada v. FedEx: California State Court Upholds Class Action Judgment Against FedEx But Holds $14.4 Million Fee Award Must Be Reduced As Excessive

Trial Court Class Action Judgment Against FedEx for Labor Law Violations Generally Upheld but California State Appellate Court Reverses Attorney Fee Award as Excessive and because Multiplier Improperly Based on Same Facts that Triggered Entitlement to Fees

Plaintiffs filed a class action in California state court against FedEx Ground Package System, Inc. alleging violations of the state’s labor laws for failure to reimburse work-related expenses; the thrust of the class action complaint was that, “for the limited purpose of their entitlement to reimbursement for work-related expenses, [class members] were employees, not independent contractors.” Estrada v. FedEx Ground Package Sys., Inc., 64 Cal.Rptr.3d 327 330 (Cal.App. 2007). The trial court granted plaintiffs’ motion to certify the litigation as a class action, and a trifurcated trial followed during which (1) “the court found the drivers were employees within the meaning of Labor Code section 2802 (Phase I) , ordered FedEx to reimburse some (about $5 million, including prejudgment interest) but not all of their expenses (Phase II), granted most of the equitable relief sought by the drivers (Phase III), and ordered FedEx to pay the drivers’ costs and attorneys’ fees (about $12.3 million).” Id. Defense attorneys appealed and plaintiffs cross-appealed.

The Court of Appeal noted that this represented the third appeal in this case, and that it here considered defense challenges to the trial court order certifying the class action, the finding that the drivers were employees, the reimbursement findings, and the award of attorney fees. Estrada, at 330-31. The facts are quite detailed, and we do not repeat them here. See id., at 331-34. On the direct appeal, the Court of Appeal affirmed that the drivers were employees of FedEx, not independent contractors. Id., at 335. The appellate court noted that the California Labor Code does not define “employee” for purposes of section 2802 so the common law test applies, and explained at page 335 that under that test the question is “whether the principal has the right to control the manner and means by which the worker accomplishes the work” based on a number of factors including “(1) whether the worker is engaged in a distinct occupation or business, (2) whether, considering the kind of occupation and locality, the work is usually done under the principal’s direction or by a specialist without supervision, (3) the skill required, (4) whether the principal or worker supplies the instrumentalities, tools, and place of work, (5) the length of time for which the services are to be performed, (6) the method of payment, whether by time or by job, (7) whether the work is part of the principal’s regular business, and (8) whether the parties believe they are creating an employer-employee relationship.” (Citations omitted.) Under those factors, substantial evidence supported the finding that the drivers were “employees,” see id., at 336-37.

Next, the Court of Appeal affirmed that class action treatment was appropriate, holding that “it is clear that common issues – whether the drivers were employees and, if so, which expenses would be reimbursable – predominated.” Estrada, at 338. The appellate court affirmed also the trial court finding that FedEx failed to reimburse the drivers for all expenses required by law, see id., at 339.

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

FDCPA Class Action Defense Cases-Guevarra v. Progressive Financial: California Federal Court Holds Congress Must Address “Ethically Questionable” Conduct of Plaintiff’s Counsel In Multiplying Class Action Litigation

Class Action Plaintiff Lawyer’s Collusion with Plaintiff’s Counsel in Separate Fair Debt Collection Practices Act (FDCPA) Class Action Against Same Defendant is not Condoned but Remedy lies with Congress not with Disciplinary Bodies California Federal Court Holds

Plaintiff filed a putative class action against a debt collection agency and one of its employees alleging that letters sent to debtors violated the federal Fair Debt Collection Practices Act (FDCPA) and California’s state law equivalent, the Rosenthal Fair Debt Collection Practices Act (Rosenthal Act). Guevarra v. Progressive Fin. Servs., Inc., 497 F.Supp.2d 1090, 1090-91 (N.D. Cal. 2007). The class action complaint originally sought “class-wide relief on behalf of all debtors who received the letter at issue here”; however, plaintiff’s counsel subsequently amended the class action allegations to seek relief solely on behalf of debtors of a single creditor. IKEA. Id., at 1091. Plaintiff’s counsel then asked the district court to certify the litigation as a class action, and admitted at oral argument that counsel was “coordinating with plaintiff’s counsel in a separate [class action] pending in the Central District of California concerning the same letter as the one at issue here.” Id. As the district court explained at page 1091, “Apparently, plaintiff’s counsel agreed with counsel in the [other class action] to divide up the class between the IDEA and non-IKEA creditors.” The district court refused to certify the litigation as a class action and issued an Order to Show Cause why plaintiff’s counsel should not be referred to the State Bar for disciplinary action. Id.

The district court denied the class certification motion “citing plaintiff’s arbitrary distinction between IKEA and non-IKEA creditors and concluding that plaintiff’s proposed definition is not ‘superior’ to other means available under FRCP 23(b)(3).” Guevarra, at 1091. The federal court explained at page 1091, “Because plaintiff’s counsel appeared to have divided up the class in order to maximize attorney fees without significant benefit to their clients, the court ordered plaintiff’s counsel to show cause why the court should not refer this matter to the State Bar of California and the Northern District’s Standing Committee on Professional Conduct” (citations omitted). The court also concluded that the case relied upon by plaintiff’s counsel, Mace v. Van Ru Credit Corp., 109 F.3d 338 (7th Cir.1997), was in applicable because the Mace court merely refused to impose on counsel a duty to bring a class action “on behalf of the broadest possible class”; “Mace does not, however, condone post-suit collusion between counsel in separate actions in order to cut a class in two.” Id., at 1091.

Certification of Class Actions Class Action Court Decisions FDCPA Class Actions Uncategorized

Class Action Defense Cases-John v. National Security: Fifth Circuit Upholds District Court Dismissal Of Class Action Allegations Because Class Action Complaint Failed To Plead An Ascertainable Class

Class Action Requirements of Rule 23 Implicitly Require District Court to Determine Whether Class Action Complaint Adequately Pleads an Ascertainable Class Fifth Circuit Holds

Plaintiffs filed a class action lawsuit against their homeowner’s insurance carrier for damages caused by Hurricane Rita, alleging inter alia that the insurer “systematically under-adjust[ed] damages claims by failing to account for the inevitable inflation in the price of labor and materials for home repair that follows from natural disasters.” John v. National Sec. Fire & Cas. Co., 501 F.3d 443, 2007 WL 2743633, *1 (5th Cir. 2007). The class action complaint alleged further that the insurer breached the terms of its insurance policies by “systematically failing to account for general contractors’ overhead profit…when repair required the exercise of two or more trades.” Id. Defense attorneys moved to dismiss the class action for failure to state a claim, and for failure to plead an ascertainable class, id. The district court agreed with the defense arguments and dismissed the fraud claim and the class action allegations; the Fifth Circuit granted interlocutory review to resolve the issue of whether the district court erred in dismissing the class action allegations. The Circuit Court affirmed.

Preliminarily, the Fifth Circuit rejected plaintiffs’ efforts to redefine their class action allegations. Specifically, the Circuit Court noted that on appeal plaintiffs’ proposed two separate classes, and that plaintiffs “do not argue in favor of certifying a unitary class, as they proposed in their amended complaint.” John, at *1. Because, however, the Circuit Court’s jurisdiction was limited to whether the district court properly dismissed the unitary class action allegations in the pleadings, the Court explained at page *1 that it “may not consider whether the court should have certified two separate classes that were never proposed to it.” (Citing La. Patients’ Comp. Fund Oversight Bd. V. St. Paul Fire &Marine Ins. Co., 411 F.3d 585, 588 (5th Cir. 2005).) The Fifth Circuit rejected also plaintiffs’ claim that “dismissal of a class allegation on the pleadings is never proper.” Id. The Circuit Court explained at page *1:

Certification of Class Actions Class Action Court Decisions Uncategorized