Class Action Defense Cases–Comer v. Murphy Oil: Fifth Circuit Reinstates Class Action Alleging Global Warming Exacerbated Damage Caused By Hurricane Katrina

Class Action Alleging Defendants’ Greenhouse Gas Emissions Contributed to Global Warming thereby Increasing Ferocity of Hurricane Katrina Improperly Dismissed because Plaintiffs had Standing to Assert Class Action’s Nuisance, Trespass and Negligence Claims and these Claims did not Present Nonjusticiable Political Questions Fifth Circuit Holds

Plaintiffs filed a putative class action against numerous defendants seeking damages arising from Hurricane Katrina; the class action complaint, filed on behalf of property owners on the Mississippi Gulf coast, alleged that “defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.” Comer v. Murphy Oil USA, Inc., 585 F.3d 855 (5th Cir. 2009) (Slip Opn., at 1). The class action complaint sought “compensatory and punitive damages based on Mississippi common-law actions of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy.” Id., at 2. Defense attorneys moved to dismiss the class action on the grounds of that plaintiffs lacked standing and that the class action claims constituted “nonjusticiable political questions.” Id. The district court granted defendants’ motion and dismissed the class action, id. The Fifth Circuit reversed as to the nuisance, trespass and negligence, concluding that plaintiffs had standing and that the claims do not “present nonjusticiable political questions,” but affirmed the dismissal of the class action’s remaining claims. Id., at 3.

The Circuit Court spent a considerable amount of time on the question of standing, see Comer, at 3-17, but we do not here discuss that aspect of the opinion in detail. We note only that the Fifth Circuit concluded that the class action’s “nuisance, trespass and negligence claims…clearly satisfied the…constitutional minimum standing requirements” because “[t]hese state common-law tort claims, in which plaintiffs allege that they sustained actual, concrete injury in fact to their particular lands and property, can be redressed by the compensatory and punitive damages they seek for those injuries.” Id., at 7-8. The question, then, was “whether any of those claims present a nonjusticiable political question, as the district court believed they did.” Id., at 17. Based on its lengthy analysis, see id., at 18-34, the Circuit Court held that these class action claims could proceed “[b]ecause those claims do not present any specific question that is exclusively committed by law to the discretion of the legislative or executive branch” and accordingly “they are justiciable,” id., at 17. Again, we do not summarize that detailed legal analysis here. Interested readers may find the entire text of the Fifth Circuit opinion below. We simply set forth the Circuit Court’s conclusion, at pages 34 and 35 of the opinion, which states:

Class Action Court Decisions Uncategorized

Class Action Defense Cases–Somers v. Apple: California Federal Court Denies Class Action Certification Of Rule 23(b)(3) Class In Indirect Purchaser Antitrust Class Action But Reserves Ruling On Class Action Treatment Under Rule 23(b)(2)

Class Action Alleging Antitrust Violations on Behalf of Indirect Purchasers Failed to Satisfy Class Action Requirements of Rule 23(b)(3) because no Methodology for Establishing Class Wide Damages but Request for Class Action Certification under Rule 23(b)(2) taken under Submission California Federal Court Holds

Plaintiff filed a putative class action against Apple alleging violations of federal and state antitrust laws; specifically, the class action complaint challenged Apple’s sale of music for its iPod through its iTunes online music store. Somers v. Apple, Inc., 258 F.R.D. 354, 355 (N.D. Cal. 2009). According to the allegations underlying the class action complaint, Apple utilizes proprietary hardware and software for its iPod and digital music downloads, Apple’s share of the online music market is 83% and of the online video market is 75%, and Apple “deliberately” makes music and videos purchased at its online store “inoperable with its competitors’ [hardware],” id., at 355-56. The class action alleges that this allows Apple “to charge iPod purchasers a supracompetitive price by preventing consumers who have purchased music files from iTMS from playing their music on Apple’s competitors’ digital media players.” Id., at 356. While a related case sets forth parallel allegations on behalf of consumers who purchased iPod’s directly from Apple, see The Apple iPod iTunes Antitrust Litigation, U.S.D.C. Northern District of California Case No. C 05-00037 JW, this class action is filed on behalf of consumers who made their purchases through third-party vendors. Id. Plaintiff moved the court to certify the litigation as a class action under both Rule 23(b)(2) and (b)(3), id., at 357. Defense attorneys opposed the motion, arguing that “Plaintiff fails to advance class-wide methods of demonstrating individual coercion or damages” and that “a nationwide class is not appropriate, because California antitrust law should not be applied on a nationwide basis.” Id., at 357-58. The district denied the motion.

After summarizing the legal framework surrounding certification of class actions in indirect purchaser antitrust class actions, see Somers, at 358-59, the district court turned to the request for certification under Rule 23(b)(3). (The court assumed without discussion that requirements of Rule 23(a) had been met.) Plaintiff argued that a class action would be manageable because “her expert’s methodology is sufficient to establish damages on a class-wide basis.” Id., at 359. Defense attorneys disagreed, arguing that the expert “fails to demonstrate how all class members suffered injury as a consequence of [Apple’s] alleged anticompetitive activity,” id. The district court held an evidentiary hearing on the competing, proposed methodologies, id., at 360-61, and concluded that plaintiff had not assuaged the court’s concerns as to a method of establishing damages for the class, id., at 361. Accordingly, the court denied class action certification because “Plaintiff has failed to meet her burden of establishing ‘a reliable method for proving common impact on all purchasers of [D]efendant’s products throughout the chain of distribution.’” Id., at 361 (citation omitted). And with respect to plaintiff’s motion for certification of a class under Rule 23(b)(2), the district court noted that it had requested further briefing on this issue and held that “the Court will not rule on this issue until it has greater understanding of the claims, the class definition, and the form of injunctive relief sought by Plaintiff in this case and the Plaintiffs in the parallel Direct Purchaser Action.” Id. Accordingly, it took the latter request under submission. Id.

Certification of Class Actions Class Action Court Decisions Uncategorized

Class Action Defense Cases–Castaneda v. Burger King: California Federal Court Severely Limits Scope Of Class In ADA Class Action Holding Commonality/Typicality Not Met For Stores Not Frequented By Named Plaintiffs

Class Action Alleging Violations of Federal Americans with Disabilities Act (ADA) could not Properly be Certified with Respect to All 92 Franchise Restaurant Locations because no Common Architectural Design to Stores so no Commonality/Typicality Existed, but Class Action Treatment Warranted as to 10 Stores Frequented by Named Plaintiffs California Federal Court Holds

Three named plaintiffs filed a putative class action against Burger King alleging that certain of its California restaurants violated the federal Americans with Disabilities Act (ADA), California’s Americans with Disabilities Act (Unruh) and California’s Disabled Persons Act (CDPA) in various ways; specifically, the class action complaint alleged that the three named plaintiffs are mobility-impaired and had encountered barriers at Burger King restaurants. Castaneda v. Burger King Corp., ___ F.Supp.2d ___, 2009 WL 3151168 (N.D. Cal. September 25, 2009) (Slip Opn., at 1-2). Burger King has about 600 California locations, 92 of which “are leased by Burger King Corporation to the franchisees, which operate and maintain them.” _Id._, at 2. This class action involved only the 92 leased properties, _id._ The class action complaint sought injunctive relief, as well as statutory penalties under Unruh and the CDPA. _Id._ According to the allegations underlying the class action, the locations at issue “were built according to ‘one or a limited number of architectural design prototypes developed by Burger King’” and that some locations were “remodeled in conformance with Burger King’s construction and design plans and specifications.’” _Id._, at 5 (italics omitted). Plaintiffs moved the district court to certify the litigation as a state-wide class action, but “retreated from their allegations of common architecture, design, construction, and policies.” _Id._ Instead, plaintiffs argued that Burger King “maintains substantial control over the leased restaurants,” _id._, at 9. Defense attorneys opposed class action treatment, arguing _inter alia_ that common questions do not predominate. The district court granted class action treatment, but severely limited the scope of the class: the court explained, “The normal class in an ADA action proceeds against a single store on behalf of all disabled persons using that store. The instant action seeks to proceed against approximately 92 different stores throughout California on behalf of a class of all mobility-impaired persons at all 92 locations. All of the stores are Burger King restaurants. Although the class claims would share Burger King Corporation as a common target, the physical differences among the 92 locations would predominate over the common issues, there being no common blueprint among them (or even among any subset of them). Whether or not any store was ever out of ADA compliance would have to be determined store by store, feature by feature, before turning to the easier question of whether defendant as the franchisor/landlord, would have a duty to force the franchise to remediate. Therefore, such a large sprawling class will not be certified. Instead, separate classes will be certified against each of the ten individual restaurants where a named plaintiff encountered alleged access barriers.” _Id._, at 1-2.

The district court addressed first plaintiffs’ request for certification under Rule 23(b)(2) of a class action covering all 92 leased stores. See Castaneda, at 12 et seq. The federal court found “several major obstacles to a 92-store class.” Id., at 13. It found the class lacked commonality under Rule 23(a)(2), explaining that “[b]ecause each location has unique facilities, there is neither a common core of salient facts regarding what accessibility barriers each restaurant’s patrons face nor a shared predicate legal issue of whether each restaurant’s facilities violates the ADA or California statutes.” Id. The court also found that typicality under Rule 23(a)(3) was missing “because every store may well be different,” id. As to Rule 23(b)(2)’s class action factors, the district court found class action treatment inappropriate because (1) the class action complaint sought significant statutory damages, and (2) injunctive relief cannot be awarded against stores that are not in violation of the ADA, which would require “a highly individualized and extremely detailed mirror-by-mirror, door-to-door, ramp-by-ramp, detail-by-detail examination of each store.” Id. The federal court’s detailed analysis of these factors may be found at pages 14 through 22 of its opinion.

Certification of Class Actions Class Action Court Decisions Uncategorized

New Class Action Lawsuits Alleging Employment-Related Claims Maintain Top Spot Among Weekly Class Action Lawsuits Filed In California State And Federal Courts

As a resource 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 October 9 – 15, 2009, and just like the prior reporting period, 51 new class action cases were filed in these California state and federal courts.

Class Actions In The News Uncategorized

Class Action Defense Cases—In re Merrill Lynch: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Centralize Class Action Litigation In Southern District Of New York

Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Over Objections of Class Action Plaintiffs, and Transfers Actions to Southern District of New York Four class actions – one each in Kentucky, Louisiana, Massachusetts and New York – were filed against various defendants including Merrill Lynch arising out of “allegations that Merrill Lynch and/or its employees made misrepresentations or omissions in the context of the sale of auction rate securities (ARS) and manipulated the auctions for ARS in order to prevent auction failures.

Class Action Court Decisions Multidistrict Litigation Uncategorized

Class Action Defense Cases–Cirzoveto v. AIG: Tennessee Federal Court Grants Defense Motion For Summary Judgment Against Claims Asserted In Class Action Alleging Breach Of Contract

Class Action Alleging Breach of Annuity Contract for Failure to Pay Promised Interest Rate Failed Entitling Defense to Summary Judgment on Class Action Complaint Tennessee Federal Court Holds

Plaintiff filed a putative class action against AIG Annuity Insurance Company alleging breach of contract; specifically, the class action complaint alleged that AIG failed to pay the amount of interest promised under the annuity contract. Cirzoveto v. AIG Annuity Ins. Co., 625 F.Supp.2d 623, 625 (W.D. Tenn. 2009). According to the allegations underlying the class action complaint, plaintiff purchased an annuity “designed and issued by AIG Annuity and sold by Union Planters Bank” that was to pay 4.6% interest and that “all expenses, including anticipated interest credited to an annuity owner’s contract, were considered when determining the initial base rate of interest.” Id. Defense attorneys moved for summary judgment on the ground that it complied with the terms of the annuity contract because the contract expressly disclosed that the 4.6% interest rate was for the first year only, and that it was guaranteed to be at least 2% thereafter. Id. Further, plaintiff had signed an “Owner Acknowledgement Form” confirming that he had “read and understood the disclosures regarding, among other contract features, the payment of interest rates and assessment of withdrawal charges.” Id. Further, contrary to the allegations in the class action complaint, the contract set forth a “Withdrawal Charge Schedule” setting forth the charges for “early withdrawals,” id.; plaintiff, however, had withdrawn all funds within 18 months of obtaining the annuity, id., at 626. The district court granted AIG’s motion and entered judgment in its favor on the class action complaint.

The district court found that AIG did not breach the annuity contract with plaintiff because, contrary to the class action’s allegations, the contract did not “expressly or implied” guarantee plaintiff a 4.6% interest return for the life of the annuity. Cirzoveto, at 626. With respect to the breach of contract claim, plaintiff argued that AIG breached the “reasonable expectation” that the higher interest rate would be paid beyond the first year, but the federal court held that such personal opinions cannot trump the clear and unambiguous language of the contract. Id., at 627. Further, plaintiff “failed to produce substantial evidence that he has suffered damages,” because plaintiff cashed out less than 18 months after purchasing the annuity and “was entitled to receive only the value of the premiums he had paid, less any previous withdrawals he made from the annuity.” Id. In other words, he was entitled to receive only a refund of premium, which is “exactly what he received.” Id., at 627-28

Class Action Court Decisions Uncategorized

Class Action Defense Cases–Sher v. Raytheon: Florida Federal Court Grants Class Action Status To Class Action Complaint Alleging Toxic Tort Liability For Ground Contamination

Class Action Seeking Damages for Diminished Property Values resulting from Release of Chemicals causing Ground Contamination Warranted Class Action Treatment Florida Court Holds

Plaintiffs filed a putative class action against Raytheon alleging that the release of chemicals at a Facility owned by Raytheon caused ground contamination that diminished the property values. Sher v. Raytheon Co., 261 F.R.D. 651 (M.D. Fla. 2009) (Slip Opn., at 1-2, 13-14). According to the allegations underlying the class action complaint, “various industrial activities” were performed at the site which “caused chemicals…including TCE, vinyl chloride and 1, 4-dioxane, to leak into the soil and groundwater at the Facility.” Id., at 2 (footnotes omitted). The class action alleges that the chemicals leaked into the ground and “migrated beyond the boundaries of the Facility and into the surrounding neighborhood,” id., at 2-3. Plaintiffs claim that they were unaware of the ground contamination until a March 2008 news article and newscast. Id., at 4. The federal court explained, “In its current form, the proposed class area consists of over 1,000 property owners and 1,300 parcels of property…. The proposed class area is composed of ten sub-areas or neighborhoods…. There are seventeen different property types within the proposed class area, including various residential (single-family, apartments, condominiums); commercial (stores, shopping center); and institutional uses (schools, a church); as well as vacant land….” Id., at 5. The class action sought monetary damages “for the diminution in the value of their properties that the contamination caused and any restoration costs,” as well as injunctive relief to prevent further contamination. Id., at 13-14. Plaintiffs moved the district court to certify the litigation as a class action, id., at 1. Defense attorneys opposed class action treatment primarily on the ground that “common issues cannot predominate when the Court will have to make individualized inquiries as to causation and damages for each property owner.” Id., at 14. The defense also argued that “under Plaintiffs’ definition, every property owner would be included even if chemicals from the Facility cannot be detected in their groundwater.” Id. The district court granted class action treatment.

We do not here summarize the federal court’s discussion of the named plaintiffs or the various experts. See Sher, at 5-13. The district court began its analysis by noting that the definition of the class “is an overriding concern in environmental or mass toxic tort cases” and that “many courts treat ‘class definition’ as a threshold issue.” Id., at 17. This requirement necessitates that plaintiffs “‘distinguish[] members of the proposed class from the general public based upon’ the defendant’s alleged actions against them.” Id. (citations omitted). Plaintiffs argued that their proposed class definition was proper “because it includes a particular group (real property owners), that were harmed during a particular time frame (beginning on March 29, 2008), in a particular location (over Defendant’s groundwater plume) and in a particular way (groundwater contamination).” Id., at 18. Defense attorneys countered that “the geographic boundaries delineated on the Property Map arbitrarily identify a subset of the general public https://www.classactiondefenseblog.com/cgi-bin/mt.cgi?__mode=view&_type=entry&blog_id=1#rather than a distinct class of persons affected by Defendant’s alleged activities” and that the putative class subsumes within its sweep “every property owner in the proposed class area – including countless persons whose properties show no detection of chemicals from the Facility.” Id. The federal court concluded that the class definition was sufficiently definite. Id., at 18-20.

Certification of Class Actions Class Action Court Decisions Uncategorized

ADA Class Action Defense Cases–Ault v. Walt Disney World: Florida Federal Court Dismisses ADA Class Action For Lack Of Standing Holding Class Action Did Not Seek “Access” But “Human Dignity” Through New Technology

Class Action Challenging Disney Prohibition Against use of Segways at Parks Warranted Dismissal for Lack of Standing Florida Federal Holds because Disney Afforded Named Plaintiffs “Access” to its Parks through Scooters, Wheelchairs, and 4-Wheel “Electronic Stand-Up Vehicles” (ESVs) but Barred Segways for Safety Reasons

Plaintiffs filed a putative class action against Walt Disney World alleging violations of the federal Americans with Disabilities Act (ADA); specifically, the class action complaint alleged that Disney violated the ADA by refusing to allow disabled persons to use Segways within the park. Ault v. Walt Disney World Co., ___ F.Supp.2d ___ (M.D. Fla. October 6, 2009) (Slip Opn., at 1, 3-5). According to the allegations underlying the class action complaint, plaintiffs are disabled individuals who prefer to use Segways for mobility “rather than a ‘traditional’ mobility device such as a wheelchair or scooter.” _Id._, at 3. Disney accommodates disabled guests, and provides wheelchairs and scooters, but for safety reasons has banned the use of two-wheeled devices such as Segways. _Id._ However, because it realized that some disabled guests would prefer to stand, it designed a 4-wheel “electronic stand-up vehicle” (ESV) that it makes available to guests. _Id._, at 4. The parties vigorously litigated the class action, and ultimately reached a proposed class action settlement that would permit Disney’s policy against Segways to remain but require Disney “to make a certain number of its ESVs available to disabled guests at its Parks.” _Id._, at 5. The district court conditionally certified the matter as a class action for settlement purposes and granted preliminary approval to the settlement, _id._, at 1. The federal court received almost 100 objections to the proposed settlement, including objections from various disability-rights groups, the U.S. Department of Justice and the Attorneys General of twenty-three States. _Id._, at 1-2. After conducting “an extensive two-day fairness hearing,” the federal court concluded that plaintiffs lacked standing to prosecute the action and, accordingly, vacated its prior order and dismissed the class action complaint without prejudice. _Id._, at 2.

The class action focuses on the use of Segways at Disney parks. The district court explained, “Although Disney has reviewed its policy against Segways annually, it has consistently concluded that Segway use may not be safe in its densely crowded Parks. For that reason, Disney’s ESV was built around essentially the same technology as its proprietary sit-down scooters and underwent similar safety testing.” Ault, at 4-5. Specifically, Disney designed its ESV to meet “the safety standards for power scooters established by the Rehabilitation Engineering and Assistive Technology Society of North America.” Id., at 5 n.8. In examining the standing of the named plaintiffs, the court noted that one of them, who suffered from progressive Multiple Sclerosis, would “sometimes uses a Segway as her mobility device,” but her legs would get stiff and it was “difficult for her to even stand without needing to hold on to something,” id., at 6; accordingly, she only used her Segway about once a month, id., at 6 n.11, and previously used a traditional scooter during a multi-day visit to Disney parks, id., at 6. Another named plaintiff walked around the park during the first two days of her trip to Disney World, but used a scooter on the third day for a couple of hours. Id., at 7. The last named plaintiff testified that he is “physically able to use a wheelchair or scooter” but prefers his Segway “because no one looks at him and wonders what is ‘wrong’ with him,” id. The district court also summarized various objections to the class action settlement. See id., at 8-11.

Certification of Class Actions Class Action Court Decisions Uncategorized

HAPPY COLUMBUS DAY FROM THE CLASS ACTION DEFENSE BLOG

The author of the Class Action Defense Blog wishes all of you a very happy Columbus Day holiday. A new class action article will be published tomorrow.

Class Actions In The News Uncategorized

Labor Law Class Actions Continue Dominance Among Weekly Class Action Lawsuits Filed In California State And Federal Courts

To assist class action defense attorneys anticipate the types of cases against which they will have to defend in California courts, 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.

Class Actions In The News Uncategorized