CALIFORNIA CLASS ACTION LAW

Tag: United States Department of Justice

Central District Holds in a “Pick-Off” Case That an Unaccepted Rule 68 Offer of Judgment Cannot Moot Plaintiff’s Claims or Class Claims

In the Navy

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Judge Dolly M. Gee of the Central District of California held that a Rule 68 offer that was not accepted by a lead plaintiff cannot moot either plaintiff’s claim or the putative class claim.  Gomez v. Campbell-Ewald Company, 2011 WL 3664354, No. CV 10-2007 (C.D. Cal. Apr. 6, 2011).

Background

Plaintiff filed a class action complaint alleging violation of the Telephone Consumer Protection Act alleging that Defendant directed the mass transmission of wireless spam to the cellular telephones of consumers across the nation to advertise on behalf of the U.S. Navy. Id. *1. Plaintiff received several text messages regarding pursuing a career in the Navy and did not consent to receiving such text messages from the Defendant. Id. Plaintiff sought damages, treble damages, injunctive relief, and attorneys’ fees and costs. Id.  Plaintiff also sought to certify a nationwide class of “all persons in the United States and its Territories who received one or more unauthorized text message advertisements from Defendant.” Id.

The Parties’ Stipulation

The parties stipulated that they agreed that the deadline for Plaintiff to file his motion for class certification would be extended until after the Defendant answered or otherwise responded to the complaint and conducted pre-certification discovery. Id. Defendant agreed that not waiting would be inefficient. Id. The Court approved the stipulation and extended the deadline until after all parties answered and a proposed discovery schedule was set forth to the Court. Id. *2. Read the rest of this entry »

Ninth Circuit Holds Fraud and Consumer Protection Claims Preempted by Medicare Modernization Act

Medicare: Forward NOT Backward
Image by Grant Neufeld via Flickr

The Ninth Circuit Court of Appeals in Uhm v. Humana, Inc., No. 06-35672,  — F.3d —-, 2010 WL 3385546 (9th Cir. Aug. 30, 2010) held that the trial court lacked jurisdiction to consider plaintiffs’ breach of contract and unjust enrichment claims because they were not properly exhausted through the administrative remedial scheme established under the Medicare Prescription Drug Improvement and Modernization Act of 2003.  The court further held that plaintiff’s fraud and consumer protection act claims were not subject to the Act’s exhaustion provisions, but that they are expressly preempted.

Circuit Judge Betty Fletcher wrote a pointed concurrence chastising plaintiff’s counsel for filing the class action “all for the recovery of two months’ prescriptions” where a “bit of common sense and attention to the available administrative remedies should have been applied”:

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