CAFA Mass Action Defense Case-Lowery v. Honeywell: Alabama Federal Court Rejects Defense Arguments And Remands Mass Action To State Court Due To Defense Failure To Establish $75,000 Amount In Controversy

Class Action Fairness Act of 2005 (CAFA) did not Shift Burden of Proof of Amount in Controversy Requirements to Plaintiffs in Mass Actions or Class Actions Alabama Court Holds

In 2003, nine property owners filed suit in Alabama state court against eleven defendants asserting various common law based on defendants’ discharge of pollutants and demanding as damages in excess of $1 million each. Lowery v. Honeywell Int’l, Inc., 460 F.Supp.2d 1288, 1290-91 (N.D. Ala. 2006). In an amended complaint filed in October 2005, 533 named plaintiffs sought damages against 12 named defendants seeking damages “in an amount of compensatory and punitive damages to be determined by a jury,” id., at 1291. The complaint was amended against in March 2006 and June 2006; none of the complaints sought class action status, none of the theories of liability changed, and the indefinite prayer remained the same in the first through third amended complaints. Id. The Third Amended Complaint added as a party-defendant Alabama Power and Filler Products Company, and in July 2006 Alabama Power removed the action to federal court based in part on the Class Action Fairness Act of 2005 (CAFA) on the theory that “the action constitutes a ‘mass action’, which, under 28 U.S.C. § 1332(d)(11)(B)(i), is removable.” Id. Plaintiffs moved to remand the case to state court on the grounds that CAFA did not apply and that defendants had not demonstrated the requisite amount in controversy. In an opinion that contains some surprising legal conclusions but in the author’s view reached the correct result, the federal court remanded the action to state court.

The district court noted that the complaint was filed long before CAFA’s February 18, 2005 effective date, but the amendment that precipitated removal post-dated CAFA. Lowery, at 1292. The court explained at page1292, “This procedural fact creates two potentially dispositive removability questions: (1) did the filing of the third amended complaint ‘commence’ a new suit for purposes of CAFA; and (2) if so, did the new suit, by retroactive effect, ‘commence’ as to all defendants, or only as to [those defendants added by the third amended complaint].” CAFA looks to state law for determining when an action is “commenced,” which under Alabama law was the date the original complaint was filed. Id. However, federal law holds that “as to the new defendant, removability is determined as of the date of receipt of service of the amended complaint, not as of the date on which the original suit was filed in state court.” Id. (citations and italics omitted). The question, then, is whether Alabama Power properly removed the action. Id., at 1292-93.

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

Dukes v. Wal-Mart Class Action Defense Case: Ninth Circuit Upholds Certification Of Nationwide Sex Discrimination Class Action Creating Largest Class Ever Agreeing With District Court That Class Action Was Nonetheless Manageable

District Court did not Abuse its “Broad Discretion” in Certifying Nationwide Sex Discrimination Class Action Against Wal-Mart Creating “the Largest Certified Class in History” Ninth Circuit Holds

In June 2001, plaintiffs filed a putative class action against Wal-Mart in the San Francisco federal court alleging sex discrimination in the payment of wages and in promotions. In April 2003, plaintiffs moved to certify a nationwide class action on behalf of 1.5 million former and present female employees “employed in a range of Wal-Mart positions – from part-time, entry-level, hourly employees to salaried managers.” Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir. February 06, 2007) [Slip Opn., at 1340]. Defense attorneys argued that the requirements of Rule 23 had not been satisfied, stressing in particular several problems inherent in litigating a class of record size. More than a year later, in an 84-page decision handed down in June 2004, the district court rejected all but one of the defense arguments and, save for that one point, certified the class action as requested by plaintiffs. Both sides appealed, but the Ninth Circuit affirmed the district court order in all respects.

Plaintiffs’ motion sought certification of a nationwide class action on behalf of “All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” Dukes, at 1340. Wal-Mart stressed the “‘historic’ nature of Plaintiffs’ motion, inasmuch as it concerns a class of approximately 1.5 million women who work or worked in one or more of Wal-Mart’s 3,400 stores in 41 regions at any time since 1998.” Id. The district court recognized Wal-Mart’s concerns but concluded that “while the class size was large, the issues were not unusual.” Id. The Ninth Circuit summarized the district court’s order at page 1341 as follows:

On June 21, 2004, the district court issued an eighty-four-page order granting in part and denying in part Plaintiffs’ motion for class certification. [Citation.] With respect to Plaintiffs’ claims for equal pay, the district court granted Plaintiffs’ motion as to issues of alleged discrimination and all forms of requested relief. With respect to Plaintiffs’ promotion claim, the court’s finding was mixed. The court certified the proposed class as it related to issues of alleged discrimination (including liability for punitive damages) as well as injunctive and declaratory relief. However, the court denied Plaintiffs’ request for certification with respect to backpay because data relating to challenged promotions were not available for all class members.

On appeal, Wal-Mart focused its attack on three points: (1) that the commonality and typicality requirements of Rule 23(a) had not been satisfied, (2) that the class action complaint primarily sought monetary relief thus barring certification under Rule 23(b)(2), and (3) that the district court order prejudiced its ability to respond to individual claims. Dukes, at 1341. Plaintiffs, in turn, argued that the district court erred in limiting backpay relief. Id. The Ninth Circuit held that the district court did not abuse its discretion in certifying the nationwide class.

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

Class Action Defense Cases-Colomar v. Mercy Hospital: Florida Federal Court Denies Defense Motion To Dismiss Unfair Trade Practice Class Action Based On Allegations That Hospital Charges Uninsured Patients More Than Insured Patients For The Same Services

Class Action Complaint Adequately Alleges Breach of Contract and Violation Florida’s Deceptive and Unfair Trade Practices Act where Hospital Charges Uninsured Patients Significantly More for Services than it Charges Insured Patients Florida Federal Court Holds

Plaintiffs filed a putative securities class action against Mercy Hospital for breach of contract, unjust enrichment, breach of duty of good faith and fair dealing, and violation of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA), alleging that the hospital routinely overcharged uninsured patients for care. Colomar v. Mercy Hospital, Inc., 461 F.Supp.2d 1265, 1267 (S.D. Fla. 2007). Defense attorneys moved to dismiss the class action under Rule 12(b)(6); the district court granted the motion as to the unjust enrichment and breach of good faith and fair dealing claims, and granted the motion as to the FDUTPA claim for relief to the extent that it alleged deceptiveness by the hospital. Id. The district court requested additional briefing as to the breach of contract claim and as to the FDUTPA claim to the extent it alleged unfairness in the hospital’s billing practices, both of which were premised on allegations of “unreasonable pricing” of hospital services for uninsured patients. Id. The district court held that “[having] reviewed the [complaint] in a light most favorable to Plaintiff and drawn all reasonable inferences therefrom in Plaintiff’s favor, . . . the allegations of unreasonable pricing in the [complaint] meet Plaintiff’s burden of pleading claims for breach of contract and violation of FDUTPA.” Id.

The thrust of plaintiff’s complaint is that the bill she received as an uninsured patient for Mercy Hospital’s services “was inflated and unfair when compared to the rates charged to, and accepted from, patients with insurance or patients covered by Medicaid or Medicare.” Colomar, at 1268. Plaintiff originally argued that “differential pricing alone was sufficient to constitute a breach of contract because Florida law requires the amount of an open pricing contract to be reasonable”; the district court agreed that the amount must be reasonable but held that “Florida law requires more than mere allegations of differential pricing to establish unreasonableness.” Id. (citation omitted). In response, plaintiff amended her complaint to include the following details: “(1) Plaintiff was charged nearly $12,863 for medical services, while the actual costs of the services were only $2,098; (2) CHE hospitals (of which Mercy belongs) generally charge uninsured patients rates at 370% of Medicare reimbursement rates; (3) Mercy in particular charges uninsured patients rates at 450% of Medicare reimbursement rates; (4) CHE hospitals rank among the top 13% of all hospitals nationwide in charges (including both for-profit and non-profit hospitals); (5) CHE’s cost-to-charge ratio is 394%, meaning that on average CHE hospitals charge almost four times their costs to uninsured patients; (6) CHE hospitals rank in the top 10% of hospitals nationwide in terms of cost-to-charge ratio.” Id.

Class Action Court Decisions Uncategorized

San Francisco’s Paid Sick Leave Ordinance To Take Effect On February 5, 2007

On February 5, 2007, San Francisco’s sweeping Paid Sick Leave Ordinance (“PSL”) will take effect. The PSL Ordinance (Chapter 12W) was approved by 60% of San Francisco voters in the November election. San Francisco employers who do not comply with the PSL Ordinance will face stiff penalties and possible civil lawsuits with attorneys’ fees recoverable.

All employers in San Francisco will be required to provide paid sick leave to all full-time, part-time and even temporary employees who work in San Francisco. Under the PSL Ordinance, employees accrue one hour of paid sick leave for every 30 hours worked (about 9 days per year for a full-time, non-exempt employee). Those employed as of February 5, 2007 will begin accruing paid sick leave as of that date. Those employed after February 5, 2007 will begin accruing paid sick leave 90 days into their employment. Employers may cap maximum accruals at 40 hours if they employ fewer than 10 employees and at 72 hours if they employ 10 or more employees. Unlike vacation benefits, paid sick leave does not need to be paid out when employees leave their employers.

Beginning February 5, 2007, employers must post the City’s official notice of the PSL Ordinance in a conspicuous location in English, Spanish, Chinese and any other languages spoken by at least 5% of an employer’s workforce in San Francisco. Under the PSL Ordinance, paid sick leave may be used to care for family members (“kin care”), which is more broadly defined than California’s Labor Code and includes relatives such as siblings and grandparents. In addition, employees who do not have a spouse or registered domestic partner may once a year designate a person for whom the employee may use paid sick leave. Further, unlike current California law, an employee may use the entire amount of their sick leave for kin care.

Class Actions In The News Employment Law Class Actions Uncategorized

Deloitte & Touche Class Action Defense Case-Lattanzio v. Deloitte: Second Circuit Affirms Dismissal of Securities Class Action Against Outside Accountant

Second Circuit Holds that District Court Properly Granted Defense Motion to Dismiss Securities Class Action Against Outside Accountant Because (1) Claims fell Outside Class Period, (2) Accountant is under no Duty to Correct Financial Statement for which it Provided no Public Opinion, and (3) Plaintiffs’ Failed to Adequately Allege Loss Causation

Plaintiffs filed a putative securities class action against Deloitte & Touche in its capacity as outside accountant for Warnaco Group for violations of Section 10(b) of the Securities Exchange Act of 1924 and Rule 10b-5 alleging that Deloitte misstated Warnaco’s financial condition and breached its duty to correct previous misstatements once it learned that they were inaccurate. Lattanzio v. Deloitte & Touche LLP, 476 F.3d 147, 2007 WL 259877, *1 (2d Cir. January 31, 2007). Defense attorneys moved to dismiss the class action under Rule 12(b)(6). The district court granted the motion finding that “[i] Deloitte was not liable for Warnaco’s quarterly statements, which it did not audit; [ii] Deloitte had no duty during the class period to correct statements or misstatements made by Deloitte prior to the class period; and [iii] Plaintiffs inadequately alleged loss causation in connection with the statements that Deloitte made during the class period.” Id. On appeal, the Second Circuit affirmed the “thorough and well-reasoned opinion” of the district court. Id.

Deloitte began serving as Warnaco’s outside accountant in November 1999. Plaintiffs filed this class action after Warnaco declared bankruptcy in June 11, 2001 seeking to represent those who purchased Warnaco’s common stock from August 15, 2000 through June 8, 2001 (defined as “the Class Period”). Lattanzio, at *1. The class action complaint alleged that Warnaco’s 1999 Form 10-K (filed in March 2000) overstated total shareholder equity by $30 million, and that in February 2000 Deloitte learned of $26 million of this sum but did not correct Warnaco’s financial statements until March 2001. Id. Deloitte allegedly learned of the additional $4 million mistake “sometime in fall 2000” but did not correct the financial statements until August 2001 (by which time Warnaco was in bankruptcy). Id., at *2. The complaint also complained that the three quarterly statements Warnaco filed during the Class Period contained material misstatements; Deloitte did not audit these statements but “reviewed” them as required by federal law and, allegedly, learned of the errors but failed to correct them. Id. Finally, the complaint alleged that Warnaco’s 2000 Form 10-K contained material misstatements Id., at *3. However, Deloitte’s audit opinion expressed a “going concern” that the company “was not in compliance with certain covenants of its long-term debt agreements” and that the company “was a working capital deficiency as of December 30, 2000” which “raise substantial doubt about its ability to continue as a going concern.” Id. As noted above, the district court granted the defense Rule 12(b)(6) motion and dismissed the class action complaint.

Class Action Court Decisions PSLRA/SLUSA Class Actions Uncategorized

12 U.S.C. § 2616—Impact Of The Real Estate Settlement Procedures Act (RESPA) On State Laws And Affect Of Inconsistent Federal And State Laws

For class action defense attorneys who defend against RESPA (Real Estate Settlement Procedures Act) class actions, we make the text of RESPA available here. Congress clarified the affect of RESPA on state laws and provided for determining whether state laws were inconsistent with federal laws in 12 U.S.C. § 2616, which provides as follows: § 2616. State laws unaffected; inconsistent Federal and State provisions This chapter does not annul, alter, or affect, or exempt any person subject to the provisions of this chapter from complying with, the laws of any State with respect to settlement practices, except to the extent that those laws are inconsistent with any provision of this chapter, and then only to the extent of the inconsistency.

Statutes & Rules Uncategorized

12 U.S.C. § 2615—Validity Of Contracts And Liens Under The Real Estate Settlement Procedures Act (RESPA)

As a resource for the class action defense lawyer who defends against RESPA (Real Estate Settlement Procedures Act) class actions, we make the text of the statute available here. Congress clarified that RESPA does not affect the validity or enforceability of contracts for the sale of real property or of federally-related mortgage loans in 12 U.S.C. § 2615, which states: § 2615. Contracts and liens; validity Nothing in this chapter shall affect the validity or enforceability of any sale or contract for the sale of real property or any loan, loan agreement, mortgage, or lien made or arising in connection with a federally related mortgage loan.

Statutes & Rules Uncategorized

Class Action Defense Cases-In re Banc of America: Judicial Panel On Multidistrict Litigation (MDL) Rejects Defense Opposition To Centralization Of Class Action Litigation And Selects Central District Of California As Transferee Court

Over Defense Objection Judicial Panel Grants Request for Pretrial Coordination Pursuant to 28 U.S.C. § 1407 and Transfers Class Action Lawsuits to Central District of California Despite Settlement of Action Pending in that District Three class action lawsuits were filed naming Banc of America Investment Services, Quick & Reilly, Fleet National Bank and/or Fleet Investment Services for alleged violations of the federal Fair Labor Standards Act (FLSA) and/or state labor laws alleging the failure to pay overtime to individuals who worked as securities brokers or broker trainees.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Labor Law Class Action Lawsuits Again Hold Top Spot In Weekly Class Action Filings In California State And Federal Courts With Public Accommodation/ADA Class Action Claims A Distant Second

Yet again California class action defense attorneys will face more new employment class action claims than any other category. In an effort to assist class action defense attorneys in anticipating the claims against which they may have to defend, we provide weekly, unofficial summaries of the legal categories for new 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.

Class Actions In The News Uncategorized

Class Action Defense Cases-In re LLRice: Judicial Panel On Multidistrict Litigation (MDL) Grants Unopposed Motion To Centralize Class Action Litigation And Agrees With Defense That Eastern District Of Missouri Is Appropriate Transferee Court

Judicial Panel Grants Unopposed Request for Pretrial Coordination Pursuant to 28 U.S.C. § 1407 and Agrees with Defense that Eastern District of Missouri is Appropriate Transferee Court Several class actions were filed against Bayer CropScience and others on behalf of rice farmers asserting various causes or action arising out of “the contamination of commercial rice stocks with LLRice 601, a variety of genetically modified rice.” In re LLRice 601Contamination Litig., 466 F.

Class Action Court Decisions Multidistrict Litigation Uncategorized