Class Action Defense Cases—California Court Of Appeal Grants Defense Request For Rehearing In Ticconi v. Blue Shield Class Action

Following its Original Panel Opinion Reversing Trial Court Denial of Plaintiff’s Class Action Certification Motion, California Court of Appeal Grants Defense Petition for Rehearing in Ticconi v. Blue Shield Class Action The Los Angeles Times reports today that the California Court of Appeal has agreed to reconsider its opinion in Ticconi v. Blue Shield of Cal. Life & Health Ins. Co., 157 Cal.App.4th 707, 68 Cal.Rptr.3d 785 (Cal.App. 2007), which reversed a trial court order denying class action status to a lawsuit against Blue Shield.

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Labor Law Class Action Lawsuits Dominate Weekly Class Action Filings In California State And Federal Courts

As a resource to 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 preceding week. In light of the holidays, this report covers the two-week period of December 21, 2007 – January 3, 2008, during which time 57 new class action lawsuits were filed.

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Circuit City Class Action Defense Cases-In re Circuit City: Judicial Panel On Multidistrict Litigation (MDL) Denies Plaintiff Motion To Centralize Class Action Lawsuits And Permits Class Action Litigation To Proceed Separately

Judicial Panel Denies Plaintiff Request, Objected to by Defense Attorneys and Other Plaintiff’s Counsel, for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 because Only Three Class Actions were Pending, Issues were not “Sufficiently Complex and/or Numerous” to Warrant Centralization, and Alternatives Existed to Minimize Risk of Duplicative Discovery or Inconsistent Pretrial Rulings Three class action lawsuits were filed against Circuit City (one in California, one in Florida and one in New York) arising out of defendants’ business practices in charging restocking fees; California plaintiff’s lawyer filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.

Class Action Court Decisions Multidistrict Litigation Uncategorized

FDCPA Class Action Defense Cases-Kalish v. Karp: New York Federal Court Grants Class Action Treatment To Fair Debt Collection Practices Act (FDCPA) Class Action Against Law Firm Despite De Minimis Recovery And Class Counsel’s Limited Success

Plaintiff’s Motion for Class Action Certification of FDCPA (Fair Debt Collection Practices Act) Class Action Against Law Firm Granted by New York Federal Court because the “Win-Loss” Record of Plaintiff’s Counsel did not Defeat his Adequacy to Serve as Class Counsel and because a De Minimis Recovery of $2.50 per Class Member did not Defeat Superiority

Plaintiff filed a class action lawsuit against the law firm of Karp & Kalamotousakis, LLP alleging that it violated the federal Fair Debt Collection Practices Act (FDCPA). Kalish v. Karp & Kalamotousakis, LLP, ___ F.R.D. ___, 2007 WL 4048559, *1 (S.D.N.Y. November 13, 2007). The class action complaint alleged that the law firm violated the FDCPA “by sending a form letter that incorrectly informed her that she could only dispute a debt owed to Defendant in writing.” _Id._ Plaintiff’s counsel sought class action certification; defense attorneys did not dispute liability on the FDCPA claim but challenged both the adequacy of counsel and the superiority of class action treatment. _Id._ The district court rejected the defense arguments and certified the litigation as a class action.

With respect to the adequacy of plaintiff’s lawyer to serve as class counsel, the district court explained that while prior Second Circuit authority directed district courts to consider whether proposed class counsel was “qualified, experienced and generally able” to handle the class action, Kalish, at *1, under the 2003 Amendments to Rule 23, and specifically Rule 23(g), “the court must consider: (a) the work counsel has done in identifying or investigating potential claims in the action, (b) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action, (c) counsel’s knowledge of the applicable law, and (d) the resources counsel will commit to representing the class,” and may consider as well “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class,” id. n.4. So viewed, the federal court found the defense argument against plaintiff’s counsel wanting because it “mistakenly conflates ‘qualified’ with ‘successful’ and thereupon undertakes a detailed description of some of [counsel’s] losses in court.” Id., at *2. The court found counsel’s “win-loss” record immaterial to a determination of his qualifications because “Rule 23 requires only that class counsel have experience in the particular type of law at issue or that she have demonstrated her competence in other ways, such as through the quality of her submissions to the court.” Id. (citation omitted). The court concluded that counsel was adequate to represent the class, id.

Certification of Class Actions Class Action Court Decisions Uncategorized

Record Class Action Attorney Fee Award As Plaintiff Lawyers in Class Action Against Tyco Awarded $464 Million in Attorney Fees

District Court Awards Class Action Counsel Record $464 Million following $3.2 Billion Settlement in Class Action Against Tyco and its Auditors Characterizing the case as “enormously complex,” United States District Court Judge Barbadoro awarded counsel for class action plaintiffs $464 million in legal fees and $29 million in costs arising out of the securities fraud class action lawsuit against Tyco and its auditors. The underlying class action settled for $3.2 billion, so the fee award to class action counsel represented 14.

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Travelers Settles Class Action Lawsuit And State Investigations Concerning Contingent Commission Payments To Brokers

The Wall Street Journal reports today that Travelers Cos. Has reached a tentative class action settlement of a shareholder class action, and that the company has separately agreed to “pay $6 million to settle several state investigations over how it paid brokers.” The amount to be paid to settle the class action has not yet been disclosed. The settlement follows a failed attempt by defense attorneys to obtain dismissal of the class action complaint.

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UPS Class Action Defense Case-Bates v. UPS: Ninth Circuit En Banc Reverses Panel Opinion Refusal To Decertify Class Action And Affirms Class Action Judgment Against UPS Based On ADA Claim, But Reaffirms That Unruh Act Violation Must Be Reversed

Following Panel Opinion Holding that District Court did not Clearly Err in Finding UPS Violated Federal Americans with Disabilities Act (ADA) by Refusing to Hire Deaf Drivers but that Defense was Correct that Class Action Judgment Based on Violation of California’s Unruh Act Must be Reversed, Ninth Circuit En Banc Overrules Prior Ninth Circuit Authority and Remands Class Action for Further Proceedings on ADA Claim

Plaintiff filed a putative class action in California federal court against United Parcel Service alleging violations of the federal Americans with Disabilities Act (ADA), and California’s Fair Employment and Housing Act (FEHA) and Unruh Civil Rights Act (Unruh Act) because it “categorically exclude[s] individuals from employment positions as ‘package-car drivers’ because they cannot pass a United States Department of Transportation (DOT) hearing standard that does not apply to the vehicles in question.” Bates v. United Parcel Serv., Inc., 465 F.3d 1069, 1073 (9th Cir. 2007) (Bates I). The district court certified the lawsuit as a class action. After a bifurcated trial, the district court ruled against the defense and found that UPS violated the ADA, the FEHA and the Unruh Act. On appeal, defense attorneys argued that “(1) Bates did not establish that any class members are ‘qualified’; (2) UPS satisfied its burden under the business necessity defense of the ADA; (3) the plaintiff class should be decertified; (4) the court’s injunction was an abuse of discretion; and (5) UPS did not violate the FEHA or the Unruh Act.” Id. The Ninth Circuit originally affirmed the judgment as to the ADA claim, reversed the judgment as to the Unruh Act, and refused to reach the FEHA claim finding it unnecessary in light of the fact that affirmance of the ADA claim “is sufficient grounds for affirming the injunction.” Id., at 1093 n.25. Defense attorneys sought and obtained rehearing en banc “to consider the contours of a claim that an employer’s safety qualification standard discriminates against otherwise ‘qualified’ persons with disabilities…, and the showing required of an employer to successfully assert the business necessity defense to use of such qualification under 42 U.S.C. § 12113(a),” Bates v. United Parcel Serv., Inc., ___ F.3d ___ (9th Cir. December 28, 2007) _Bates II_ [Slip Opn., at 16891], and the Ninth Circuit reversed the Panel opinion.

The gravamen of the class action complaint was summarized in our article discussing the original Ninth Circuit opinion, which may be found here . In brief, applicants for positions as UPS package drivers must, inter alia, pass the same physical exam that the United States Department of Transportation requires of prospective drivers of commercial vehicles, which includes a “forced whisper” test of the applicants’ hearing. Bates II, at 16892-93. However, the DOT only requires a physical exam of those who will be driving vehicles with a gross weight in excess of 10,000 pounds. UPS, on the other hand, required the exam of all applicants, including the thousands of drivers operating vehicles weighing from 7100 to 9300 pounds. Id., at 16893. The class conceded that UPS may require the physical exam of who drive DOT-regulated vehicles, but argued that its blanket exclusion of deaf applicants violated state and federal laws. Bates I, at 1075. The district court ruled in favor of the class, holding in part that UPS had failed to establish a business necessity defense to its actions. Id.

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HAPPY NEW YEAR FROM THE CLASS ACTION DEFENSE BLOG

The author of the Class Action Defense Blog wishes all of you a very Happy New Year. A new class action article will be published tomorrow.

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UCL Class Action Defense Cases-Ticconi v. Blue Shield: California Court Reverses Denial Of Class Action Motion Holding Trial Court Erred In Refusing Class Action Treatment Based on Equitable Defenses To Unfair Competition Law (UCL) Claims Against Insurer

Denial of Class Action Certification Motion Improper in Class Action Case Against Insurer Alleging Violations of State Unfair Competition Law (UCL) because Equitable Defenses of Fraud and Unclean Hands cannot be used to Defeat UCL Claims so Individual Issues Related to such Defenses will not Predominate over Common Issues California Appellate Court Holds

Plaintiff filed a putative class action complaint against his health insurer, Blue Shield of California, alleging inter alia that Blue Shield violated California’s unfair competition law (UCL) and state insurance code “by failing to attach his application to or endorse it on the insurance policy when issued, and later rescinding the policy on the ground he had made misrepresentations in that application.” Ticconi v. Blue Shield of Cal. Life & Health Ins. Co., 157 Cal.App.4th 707, 68 Cal.Rptr.3d 785, 788-89 (Cal.App. 2007). Plaintiff moved the trial court for class action treatment; defense attorneys opposed the class action certification motion on the ground the individual issues related to Blue Shield’s fraud and unclean hands defenses would predominate over common issues. Id., at 789. The trial court agreed with defense counsel and refused to grant class action status. Id. The Court of Appeal reversed, holding that the trial court abused its discretion in denying the class action certification motion because “[e]quitable defenses cannot be used to defeat a UCL cause of action and Blue Shield Life may not raise the defense of fraud based on statements that insureds made in an application for insurance where the application had been neither attached to nor endorsed on the policy when issued,” id. (citations omitted).

According to the class action complaint, plaintiff applied for a short-term health and accidental death insurance policy from Blue Shield. Ticconi, at 789. The application completed by plaintiff “was neither attached to the policy nor endorsed onto it when the policy was issued.” Id. Blue Shield issued the policy, and plaintiff paid the premiums as required, id. During the policy period, plaintiff’s health care bills exceeded $100,000, but upon receiving the bills Blue Shield refused payment and rescinded the policy on the ground that plaintiff “made material misrepresentations in his application for insurance about the condition of his health.” Id. Plaintiff denied this claim, insisting that he “answered truthfully all health questions posed on the policy application” and that “a reasonable investigation would have shown this.” Id. The class action further alleged that Blue Shield violated California law because it failed to attach or endorse a copy of his application to the policy, and Insurance Code section 10113 forbids incorporation of the application by reference, and that even if his statements were false, plaintiff “not bound by any statement made therein because that document had not been attached to or endorsed on the policy when issued.” Id., at 789-90. Plaintiff filed his lawsuit as a class action alleging that Blue Shield similarly “had rescinded a large number of policies that did not have the applications attached to or endorsed on the policies” in violation of Insurance Code sections 10113 and 10381.5, and that as such the rescissions represented an unlawful business practice under the UCL. Id., at 790.

Certification of Class Actions Class Action Court Decisions Uncategorized

Federal Court Refuses To Certify Class Action In Lawsuit Arising Out Of 2005 Train Derailment

The Associated Press reports today that U.S. District Court Judge Harry Barnes of Arkansas has denied plaintiffs’ class action certification motion, but has permitted the lawsuit to proceed on an individual basis. According to AP, the class action complaint was filed following the 2005 derailment of a Union Pacific train; the derailment caused an explosion that killed a woman. Judge Barnes ruled that the lawsuit failed to satisfy the requirements for a class action, AP reports, but permitted that the four named plaintiffs may proceed to trial on June 2, 2008, on their individual claims.

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