Intel Class Action Defense Case-Barbara’s Sales v. Intel: California Law Applies To Unfair Business Practice Class Action Against Intel And Nationwide Class Should Have Been Certified Illinois Court Holds

After Trial Court Held that Illinois Law Applies to Unfair Business Practice Class Action Against Intel and Certified Only a Statewide Class. Appellate Court Reversed and Held California Law Applies and Nationwide Class Should Have Been Certified

Purchasers of computers run by Intel’s Pentium 4 processors filed a nationwide class action in Illinois state court alleging claims for unfair business practices under California law and Illinois law based on the allegation that, contrary to its billion dollar marketing campaign, the Pentium 4 performed no better than the Pentium III. Barbara’s Sales, Inc. v. Intel Corp., __ N.E.2d __ (Ill.App. July 25, 2006). Defense attorneys opposed class certification in part on the grounds that Illinois law applied thus barring the two claims based on California law – one under California’s Consumer Legal Remedies Act (CLRA) and one under California’s Unfair Competition Law (UCL). The trial court agreed that Illinois law applied and denied class certification on the California-law claims. The trial court also found that Illinois law “could not be applied to a nationwide class action” and so certified only a statewide class under the Illinois Consumer Fraud and Deceptive Business Practices Act claim. Slip Opn., at 4-5. The appellate court reversed, rejecting defense arguments that California law should not be applied.

Certification of Class Actions Class Action Court Decisions Uncategorized

15 U.S.C. § 1681t – Relation to State Laws: Statutory Provisions for Defense Attorneys Who Defend Class Actions Brought Under the FCRA (Fair Credit Reporting Act)

As a resource for the class action defense lawyer who defends against class actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. Congress provided for the relation to State laws in Section 1681t as follows:

§ 1681t. Relation to State laws

(a) In general.

Except as provided in subsections (b) and (c), this title does not annul, alter, affect, or exempt any person subject to the provisions of this title from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, or for the prevention or mitigation of identity theft, except to the extent that those laws are inconsistent with any provision of this title, and then only to the extent of the inconsistency.

(b) General exceptions.

No requirement or prohibition may be imposed under the laws of any State

(1) with respect to any subject matter regulated under

(A) subsection (c) or (e) of section 1681b of this title, relating to the prescreening of consumer reports;

(B) section 1681i of this title, relating to the time by which a consumer reporting agency must take any action, including the provision of notification to a consumer or other person, in any procedure related to the disputed accuracy of information in a consumer’ s file, except that this subparagraph shall not apply to any State law in effect on the date of enactment of the Consumer Credit Reporting Reform Act of 1996;

(C) subsections (a) and (b) of section 1681m of this title, relating to the duties of a person who takes any adverse action with respect to a consumer;

(D) section 1681m(d) of this title, relating to the duties of persons who use a consumer report of a consumer in connection with any credit or insurance transaction that is not initiated by the consumer and that consists of a firm offer of credit or insurance;

(E) section 1681c of this title, relating to information contained in consumer reports, except that this subparagraph shall not apply to any State law in effect on the date of enactment of the Consumer Credit Reporting Reform Act of 1996;

(F) section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies, except that this paragraph shall not apply

(i) with respect to section 54A(a) of chapter 93 of the Massachusetts Annotated Laws (as in effect on the date of enactment of the Consumer Credit Reporting Reform Act of 1996); or

(ii) with respect to section 1785.25(a) of the California Civil Code (as in effect on the date of enactment of the Consumer Credit Reporting Reform Act of 1996);

(G) section 1681g(e) of this title, relating to information available to victims under section 1681g(e) of this title;

FCRA Class Actions Statutes & Rules Uncategorized

15 U.S.C. § 1681s-3 – Affiliate Sharing: Statutory Provisions for Attorneys who Defend Class Action Brought Under the FCRA (Fair Credit Reporting Act)

As a resource for class action defense attorneys who defend against class actions brought under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. Congress specifically addressed the issue of the sharing of consumer information among affiliates, providing as follows in Section 1681s-3:

§ 1681s-3. Affiliate sharing

(a) Special Rule for Solicitation for Purposes of Marketing

(1) Notice.

Any person that receives from another person related to it by common ownership or affiliated by corporate control a communication of information that would be a consumer report, but for clauses (i), (ii), and (iii) of section 1681a(d)(2)(A) of this title, may not use the information to make a solicitation for marketing purposes to a consumer about its products or services, unless—

(A) it is clearly and conspicuously disclosed to the consumer that the information may be communicated among such persons for purposes of making such solicitations to the consumer; and

(B) the consumer is provided an opportunity and a simple method to prohibit the making of such solicitations to the consumer by such person.

(2) Consumer Choice

(A) In general.

The notice required under paragraph (1) shall allow the consumer the opportunity to prohibit all solicitations referred to in such paragraph, and may allow the consumer to choose from different options when electing to prohibit the sending of such solicitations, including options regarding the types of entities and information covered, and which methods of delivering solicitations the consumer elects to prohibit.

(B) Format.

Notwithstanding subparagraph (A), the notice required under paragraph (1) shall be clear, conspicuous, and concise, and any method provided under paragraph (1)(B) shall be simple. The regulations prescribed to implement this section shall provide specific guidance regarding how to comply with such standards.

(3) Duration

(A) In general.

The election of a consumer pursuant to paragraph (1)(B) to prohibit the making of solicitations shall be effective for at least 5 years, beginning on the date on which the person receives the election of the consumer, unless the consumer requests that such election be revoked.

(B) Notice upon expiration of effective period.

At such time as the election of a consumer pursuant to paragraph (1)(B) is no longer effective, a person may not use information that the person receives in the manner described in paragraph (1) to make any solicitation for marketing purposes to the consumer, unless the consumer receives a notice and an opportunity, using a simple method, to extend the opt-out for another period of at least 5 years, pursuant to the procedures described in paragraph (1).

FCRA Class Actions Statutes & Rules Uncategorized

Public Accommodation/ADA Claims Regain First Place In California Class Action Filings

California class action defense attorneys once again confront more public accommodation lawsuits than employment law claims. In an effort to assist class action defense attorneys to anticipate 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.

Class Actions In The News Uncategorized

Freeman v. DirecTV-Class Action Defense Cases: Federal Electronic Communications Privacy Act (ECPA) Does Not Provide Private Right Of Action For Secondary Liability Claims Ninth Circuit Holds

Resolving Issue of First Impression, Ninth Circuit Affirms Order Granting Defense Motion to Dismiss ECPA Class Action Alleging “Secondary Liability” Claims Under Federal Electronic Communications Privacy Act

DirecTV filed suit against an individual in Canada to enjoin the pirating of its satellite digital television signal and, in the course of that litigation, obtained a court order permitting it to seize evidence related to piracy activities that was accessed, recorded and processed by a third party, ICG. The order provided for the information “to be held in the ‘custody of [DirecTV’s] solicitors pending the trial” and for the appointment of an “independent solicitor”; DirecTV instructed, however, that all information was to be held by the independent solicitor rather than its own lawyers. After the Canadian action was completed, DirecTV filed suit in the United States against Lawrence Freeman, alleging that he engaged in “the distribution of illegal signal theft devices.” After the parties entered into a settlement and release of that lawsuit, Freeman filed a putative class action against DirecTV and ICG for allegedly violating the federal Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2702 and 2707. Freeman v. DirecTV, Inc., 457 F.3d 1001, 1002-03 (9th Cir. 2006). Defense attorneys moved to dismiss the action on three grounds; the federal district court granted the motion on the ground that “that 18 U.S.C. § 2702 does not provide a basis for asserting conspiracy and aiding and abetting claims.” Id., at 1004. The Ninth Circuit affirmed, summarizing at page 1009:

Class Action Court Decisions Uncategorized

Class Action Defense Cases-In re “A Million Little Pieces”: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Centralize Class Action Litigation In The Southern District Of New York

Unopposed Defense Motion to Centralization of Individual and Class Action Lawsuits Based on Book “A Million Little Pieces” Granted Following the disclosure of false information in James Frey’s book _A Million Little Pieces_¸ and the filing of at least a dozen individual and class action lawsuits alleging “various state statutory and common law claims, such as negligence, consumer fraud, breach of contract, and unjust enrichment,” defense attorneys for Random House and Doubleday moved the Judicial Panel on Multidistrict Litigation (MDL) pursuant to 28 U.

Class Action Court Decisions Multidistrict Litigation Uncategorized

New York Federal Court Considers Defense Arguments Against Certification Of Class Action Against Tobacco Companies

Melanie Warner and Colin Moynihan report a New York federal court is considering whether to certify as a class action a federal RICO (Racketeer Influenced Corrupt Organizations Act) lawsuit that alleges tobacco companies “deceived smokers for years about the safety of light cigarettes” by making smokers think that they were “safer or less addicting.” Defense attorneys strenuously opposed the motion, reportedly arguing differences in the reasons people smoke – such as “that many people smoked light cigarettes because they liked the taste, not for health reasons or as part of an attempt to quit smoking” – and differences in the ways people smoked rendered the case unsuitable for treatment as a class action.

Class Actions In The News Uncategorized

Class Action Defense Cases-In re Mutual Funds: Federal District Court Grants Defense Motion To Dismiss Class Action Because “Plaintiffs’ Artful Attempt At Avoiding SLUSA Preemption Ultimately Fails”

Maryland Federal Court Grants Defense Motion to Dismiss Class Action Despite Plaintiffs’ Attempt to Plead Around Securities Litigation Uniform Standards Act of 1998 (SLUSA)

Plaintiffs filed putative class action lawsuits in Illinois state court alleging state law causes of action carefully pleaded “to avoid the preemptive scope of the Securities Litigation Uniform Standards Act” and focusing on the theory “that the defendants negligently breached state common law duties” by using “stale” mutual fund prices – that is, mutual fund prices not based on “the most recent market information.” In re Mutual Funds Investment Litig., 437 F.Supp.2d 439, 440 (D. Md. 2006). Defense attorneys removed the action to federal court, and the Judicial Panel on Multidistrict Litigation transferred the cases to Judge Motz of the Maryland district court. After the defense moved to dismiss the case as preempted by SLUSA, “plaintiffs filed amended complaints . . . that eliminate any explicit mention of misrepresentation and deception, and that plead only one cause of action: common law negligence.” Id., at 442.

Class Action Court Decisions PSLRA/SLUSA Class Actions Uncategorized

Allstate Katrina Class Action Defense Case-Vaz v. Allstate: Mississippi Federal Court Denies Motion For Certification Of Class Action Against Allstate Based On Hurricane Katrina Claims

Becky Yerak of the Chicago Tribune reports that a federal district court has denied a request to certify a class action of Mississippi policyholders against Allstate Insurance Company arising out of the handling of Hurricane Katrina claims, agreeing with defense attorneys that “each contract is a separate transaction” and that “[t]he storm was vastly different in its effect depending on the specific geographic location of each particular home.” Yerak notes that less than a month ago another Mississippi federal court denies a motion for class-action certification in a lawsuit against State Farm Fire & Casualty Company by its policyholders arising out of the Hurricane Katrina claims.

Certification of Class Actions Class Action Court Decisions Class Actions In The News Uncategorized

Class Action Defense Cases-Blackman v. District of Columbia: Federal Court Failed To Properly Certify Orders For Appeal And Defense Correct That Attorney Fees In Section 1983 Class Actions To Enforce IDEA Are Capped DC Circuit Holds

DC Circuit Agrees With Defense that Attorney Fee Awards in Section 1983 Class Action to Enforce IDEA (Individuals with Disabilities Education Act) are Capped by IDEA, but Holds that Federal District Court Failed to Properly Certify Two Attorney Fee Orders for Appeal

Following substantial litigation in multiple consolidated class action lawsuits against the District of Columbia, the federal district court rejected defense arguments and entered three separate attorney fees awards against the District. Defense attorneys sought interlocutory review of the attorney fee orders; the D.C. Circuit Court of Appeals held (1) it did not have jurisdiction over two of the orders because the district court failed to properly certify them for appeal, and (2) the district court erred in concluding that the Individuals with Disabilities Education Act (IDEA) did not limit the amount of fees that could be awarded in section 1983 actions to enforce the IDEA. Blackman v. District of Columbia, 456 F.3d 167 (D.C. Cir. 2006).

Congress enacted legislation limiting the amount of attorney fees that could be awarded to prevailing parties in IDEA cases against the District of Columbia to stem “‘the growth in legal expenses and litigation associated with special education in the District of Columbia and the usurping of resources from education to pay attorney fees.’” Blackman, at 170 (quoting H.R.Rep No. 195-670, at 50 (1998)). Four separate class action lawsuits were filed against the District under section 1983 seeking to enforce the IDEA, two of which were consolidated as a single lawsuit leaving three distinct albeit consolidated class actions pending. Id., at 171-72. The district court ordered injunctive relief in two of the cases, but not the third. Eventually the plaintiffs in all three actions sought attorney fees. The District argued that IDEA capped any attorney fee award against it, and that attorney fees were not warranted in the action in which the district court failed to order injunctive relief because the plaintiffs therein were not “prevailing parties.” The district court rejected both arguments and awarded attorney fees in all three actions. Id., at 173-74.

Class Action Court Decisions Uncategorized