Watt v. GMAC Mortgage-RESPA Class Action Defense Cases: Defense Motion To Dismiss RESPA Class Action Properly Granted Because RESPA Does Not Prohibit Servicer From Charging A Fee For Payoff Statements And Does Not Cap Fee Charged Eighth Circuit Holds

Federal District Court Properly Granted Defense Motion to Dismiss RESPA Class Action Because Congress did not Expressly Prohibit Servicers from Charging Fees for Payoff Statements

Borrowers filed a putative class action against GMAC Mortgage Corporation alleging that it violated the federal Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601-2617, “by charging a $20 fee each time the plaintiffs requested their payoff amount from GMAC’s website,” and alleging also breach of contract. The defense moved to dismiss the complaint. The district court granted the motion to dismiss the RESPA claim, but declined to exercise jurisdiction over the contract claim. The Eighth Circuit affirmed. Watt v. GMAC Mortgage Corp., 457 F.3d 781, 782 (8th Cir. 2006).

Plaintiffs argued that RESPA requires responses to “qualified written requests” be provided free of charge because RESPA does not affirmatively state that loan servicers may charge fees for such responses: “Since RESPA imposes a duty to respond but does not stated that servicers may charge fees for statements sent in response to qualified written requests, the [plaintiffs] argue, servicers are prohibited from charging fees.” Watt, at 783. The Circuit Court disagreed, holding at page 783:

Class Action Court Decisions RESPA/TILA Class Actions Uncategorized

New Study Estimates Shareholder Risk For Options Backdating At $500 Million

Hot on the heels of Julie Creswell’s New York Times article on options backdating comes a report on the costs to shareholders as estimated by a new study expected to be published in the Michigan Law Review next year. That study, according to Eric Dash of the New York Times, was prepared by three University of Michigan researchers and reportedly concludes that while the backdating of stock options increased executive pay by an average of slightly more than 1%, the average decrease in market value was 8%.

Class Actions In The News Uncategorized

FedEx Class Action Defense Case-Hart v. FedEx: CAFA (Class Action Fairness Act) Shifts Burden Of Persuasion From Defense To Plaintiff To Establish Exceptions To Federal Court Jurisdiction Seventh Circuit Holds

As a Matter of First Impression in Seventh Circuit, Court Holds that Class Action Fairness Act of 2005 (CAFA) Shifts Burden to Plaintiff to Establish Exceptions to Federal Court Jurisdiction

After plaintiff filed a putative labor law class action against FedEx in Pennsylvania state court, defense attorneys removed the case to federal court under CAFA (Class Action Fairness Act of 2005). The Judicial Panel on Multidistrict Litigation transferred the class action to the Northern District of Indiana, and plaintiff moved to remand the case to Pennsylvania state court under the “local controversy” or “home-state controversy” exceptions to federal court jurisdiction under CAFA. The district court denied the motion on the ground that plaintiff had failed to meet his burden of establishing that the exceptions applied. Plaintiff appealed the order, and the Seventh Circuit held that CAFA shifted the burden to plaintiff and affirmed. Hart v. FedEx Ground Package System Inc., 457 F.3d 675, 676-77 (7th Cir. 2006).

Plaintiff’s class action alleged the FedEx delivery drivers were misclassified as “independent contractors.” Hart, at 676. The complaint alleged that “greater than two-thirds of the members of the plaintiff class, if not all of the members of the plaintiff class, are citizens of Pennsylvania.” Id., at 677. FedEx removed the lawsuit to federal court under CAFA alleging in the notice of removal that “[u]pon information and belief, some of the proposed class members are not residents of Pennsylvania,” id. Absent CAFA, diversity jurisdiction would not exist. Id., at 676. Plaintiff sought to remand the action under CAFA’s “local controversy” and “home-state controversy” exceptions, see § 1332(d)(4)(B), and urged that under _Brill v. Countrywide Home Loans_¸ 427 F.3d 446 (7th Cir. 2005), FedEx bore the burden of establishing jurisdiction under CAFA and “also that none of the mandatory exclusions from CAFA jurisdiction found in § 1332(d)(4) applied,” id., at 677.

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

Class Action Defense Cases-Frazier v. Pioneer: Removal Of Putative Class Action Under CAFA (Class Action Fairness Act) Proper Because Removing Primary Defendant Not A State And Local Controversy Exception Inapplicable Fifth Circuit Holds

Class Action Fairness Act (CAFA) Permits Removal to Federal Court by Any Primary Defendant Without Consent of Other Defendants and States have no Citizenship for Purposes of CAFA’s “Local Controversy” Exception

A putative class action was filed in Louisiana state court against a Canadian company, Pioneer Americas, and Louisiana’s Department of Environmental Quality arising following the release of excessive amounts of mercury into the atmosphere at Pioneer’s hydrogen processing facility. Frazier v. Pioneer Americas LLC, 455 F.3d 542 (5th Cir. 2006). Pioneer’s defense removed the class action to federal court without DEQ’s consent, and the district court denied plaintiffs’ motion to remand it back to state court. In the face of the Class Action Fairness Act of 2005 (CAFA), plaintiffs “did not challenge defendants’ allegation of prima facie CAFA jurisdiction – minimal diversity and at least $5 million in controversy” – but rather argued that two exceptions applied: the exception for class actions against States and the “local controversy exception.” Id., at 544. The district court agreed with the defense that neither exception applied, and the Fifth Circuit affirmed.

Preliminarily, the Circuit Court addressed the $5 million threshold requirement for jurisdiction, even though it found that plaintiffs had not properly raised the issue. The Court explained that CAFA requires only “minimal diversity” and concluded that “the petition, seeking damages for severe injuries suffered by at least 500 people and attorneys’ fees, makes it ‘facially apparent’ that at least $5 million is in controversy, in the aggregate.” Frazier, at 545 (footnotes omitted).

Uncategorized

Defense Attorneys Facing Fewer Class Action Lawsuits Challenging Backdated Stock Option Awards

Plaintiff Lawyers Focus on Derivative Actions Rather than Class Action Lawsuits to Attack Stock Option Backdating Programs Defense attorneys have expressed surprise at the relatively limited number of class action lawsuits filed in the wake of options-backdating disclosures; Julie Creswell of the New York Times has noticed this, too. In today’s edition of the New York Times, Creswell provides a possible explanation for the dearth of class action filings: “Even when it is clear that options grant dates were manipulated, it is less clear how to calculate damage to specific shareholders.

Class Actions In The News Uncategorized

Boeing Class Action Defense Case-Carpenter v. Boeing: Federal District Court Orders In Labor Law Class Action Decertifying Subclass And Granting Defense Motion For Summary Judgment Affirmed By Tenth Circuit

Tenth Circuit Holds that Interlocutory Review of Class Certification Orders Must be Sought within 10 days of Initial Order, not Order Denying Reconsideration, and that Plaintiffs’ Statistical Evidence Failed to Establish Prima Facie Case of Disparate Impact Because Males may have Worked more Overtime Hours for Reasons Other than Gender

Female employees filed a putative employment class action in federal district court alleging Title VII Civil Rights Act sex discrimination against Boeing on theories of both disparate impact and disparate treatment. Following substantial litigation, that included class certification of certain subclasses, the district court granted a defense motion for summary judgment as to the “hourly” wages subclass “disparate impact” overtime claim. Plaintiffs appealed this ruling – which the district court certified as a final judgment under FRCP Rule 54(b) – and several other class-certification ruling. The Tenth Circuit affirmed. Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006).

The Circuit Court began with the class certification rulings, noting that interlocutory appeal of class certification orders may be granted only if sought within 10 days of entry of the order. Carpenter, at 1189 (citing FRCP Rule 23(f)). In this appeal, plaintiffs filed a motion for class certification, which the district court granted in part and denied in part. Almost a year later, plaintiffs filed a “Renewed Motion for Class Certification”; the motion was denied. A few months later plaintiffs filed a “Second Renewed Motion for Class Certification”; this, too, was denied and plaintiffs filed their Rule 23(f) application within 10 days thereafter. Id., at 1188. Boeing argued that the application was untimely, id., at 1189; the Circuit Court agreed and dismissed the application for lack of jurisdiction, id., at 1190-92.

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

15 U.S.C. § 1681s – Administrative Enforcement: Statutory Provisions of the FCRA (Fair Credit Reporting Act) for Class Action Defense Attorneys

As a resource for the class action defense lawyer who defends against class action under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The article sets forth the statutory provisions concerning administrative enforcement of the FCRA by the Federal Trade Commission:

§ 1681s. Administrative enforcement

(a) (1) Enforcement by Federal Trade Commission. Compliance with the requirements imposed under this title shall be enforced under the Federal Trade Commission Act [15 U.S.C. §§ 41 et seq.] by the Federal Trade Commission with respect to consumer reporting agencies and all other persons subject thereto, except to the extent that enforcement of the requirements imposed under this title is specifically committed to some other government agency under subsection (b) hereof. For the purpose of the exercise by the Federal Trade Commission of its functions and powers under the Federal Trade Commission Act, a violation of any requirement or prohibition imposed under this title shall constitute an unfair or deceptive act or practice in commerce in violation of section 5(a) of the Federal Trade Commission Act [15 U.S.C. § 45(a)] and shall be subject to enforcement by the Federal Trade Commission under section 5(b) thereof [15 U.S.C. § 45(b)] with respect to any consumer reporting agency or person subject to enforcement by the Federal Trade Commission pursuant to this subsection, irrespective of whether that person is engaged in commerce or meets any other jurisdictional tests in the Federal Trade Commission Act. The Federal Trade Commission shall have such procedural, investigative, and enforcement powers, including the power to issue procedural rules in enforcing compliance with the requirements imposed under this title and to require the filing of reports, the production of documents, and the appearance of witnesses as though the applicable terms and conditions of the Federal Trade Commission Act were part of this title. Any person violating any of the provisions of this title shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though the applicable terms and provisions thereof were part of this title.

(2) (A) In the event of a knowing violation, which constitutes a pattern or practice of violations of this title, the Commission may commence a civil action to recover a civil penalty in a district court of the United States against any person that violates this title. In such action, such person shall be liable for a civil penalty of not more than $2,500 per violation.

(B) In determining the amount of a civil penalty under subparagraph (A), the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.

(3) Notwithstanding paragraph (2), a court may not impose any civil penalty on a person for a violation of section 1681s-2(a)(1) of this title unless the person has been enjoined from committing the violation, or ordered not to commit the violation, in an action or proceeding brought by or on behalf of the Federal Trade Commission, and has violated the injunction or order, and the court may not impose any civil penalty for any violation occurring before the date of the violation of the injunction or order.

(b) Enforcement by other agencies.

Compliance with the requirements imposed under this title with respect to consumer reporting agencies, persons who use consumer reports from such agencies, persons who furnish information to such agencies, and users of information that are subject to subsection (d) of section 1681m of this title shall be enforced under

FCRA Class Actions Statutes & Rules Uncategorized

15 U.S.C. §§ 1681q and 1681r – Obtaining Information Under False Pretenses/ Unauthorized Disclosures by Officers or Employees: Statutory Provisions of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer

As a resource for class action defense attorneys who must defend against actions brought under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The statutory provisions concerning obtaining information under false pretenses and concerning unauthorized disclosure by officers or employees are set forth in Sections 1681q and 1681r, respectively, as follows: § 1681q. Obtaining information under false pretenses Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under title 18, United States Code, imprisoned for not more than 2 years, or both.

FCRA Class Actions Statutes & Rules Uncategorized

Class Action Labor Law/Overtime Claims Regain Top Spot In California Weekly Class Action Filings

To allow the class action defense lawyer to anticipate claims against which she or he 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. This report covers the time period from August 25 – August 31, 2006, and employment law cases regained sole possession of the top spot on the list.

Class Actions In The News Uncategorized

15 U.S.C. § 1681p – Jurisdiction of Courts/Limitation of Actions: Statutory Provisions of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Attorneys

As a resource for attorneys defending against class actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The statutory provisions concerning jurisdiction of courts and applicable statutes of limitation are set forth in Section 1681m as follows: § 1681p. Jurisdiction of courts; limitation of actions An action to enforce any liability created under this title may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction, not later than the earlier of (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs.

FCRA Class Actions Statutes & Rules Uncategorized