CALIFORNIA CLASS ACTION LAW

Tag: United States

U.S. Supreme Court Set to Hear Oral Argument in AT&T Mobility v. Concepcion, a Case Which Many Predict Will End Consumer Class Actions

from here to eternity
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The U.S. Supreme Court will hear oral argument in AT&T Mobility v. Concepcion tomorrow (Tuesday, Nov. 9, 2010). This is a critical case, in which the Court may effectively end most court-based consumer class actions.

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Central District Strikes Opposition Filed by Terminated Former Co-Counsel in Putative Class Action

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In the latest round of an apparent falling out between law firms, the Central District of California struck a terminated firm’s  request to strike the notice of its termination, and considered but did not rule on the remaining firm’s alleged ethics violations.  Yumul v. Smart Balance, Inc., No. CV 10-00927 MMM (AJWx), 2010 WL 4352723 (C.D. Cal. Oct. 8, 2010).

Background

Plaintiff Rebecca Yumul filed a notice of termination of counsel, terminating Beck & Lee Business Trial Lawyers (“Beck & Lee”) as her counsel.  Id. *1. The notice was filed by Beck & Lee’s former co-counsel, the Weston firm (“Weston”), which continues to represent Yumul.  Id. Beck & Lee filed a pleading requesting that the court strike the notice of termination, alleging ethical violations by the Weston, and seeking Weston’s disqualification. Id. Beck & Lee asserts that Weston has filed a suit in the Southern District of California to determine the validity of the Joint Prosecution Agreement (“JPA”) that governed Beck & Lee’s co-counsel relationship with Weston in this and other class actions. Id. Yumul filed an ex parte application to strike Beck & Lee’s filings. Id.

Motion to Strike Terminated Counsel’s Opposition

The court granted plaintiff’s motion to strike Beck & Lee’s opposition to the notice of termination on the grounds that it interferes with her absolute right to discharge her attorney.  Id. Read the rest of this entry »

Northern District Denies Discovery of Class Member Identities on Privacy Grounds

[Bob Burman, race car driver] (LOC)
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The United States District Court for the Northern District of California denied the production of names, addresses and telephone numbers of non-opt-in members of a FLSA collective and putative Labor Code class action.  Hill v. R+L Carriers Shared Services, LLC, No. C 09-1907 CW (MEJ), 2010 WL 4175958 (N.D. Cal. Oct. 20, 2010).  Plaintiff Glenn Hill is a former employee of Defendant R+L Carriers Shared Services, LLC, which provides administrative employees to transportation companies all across the United States.  Id. *1. Plaintiff worked as a “dispatcher” at Defendant’s San Lorenzo terminal in California, and brought a collective and class action pursuant to the Fair Labor Standards Act (“FLSA”), California’s wage-and-hour laws and California Business & Professions Code section 17200. Id.

Background

Plaintiff sought two sub-classes: those employees in California and those that he refers to as a Nationwide Collective.  Id. The California Class is defined as “all persons who worked for any period of time in California who were classified as Dispatchers (including “City Dispatchers” and any other position(s) who are either called, or work(ed) as, dispatchers) in the four years prior to the filing of this Complaint, up through the final disposition of this action.” Id. In Defendant contended that a collective action under the FLSA is improper because the job duties, work schedules, and salary of its employees varies across the United States, as well as in the State of California. Id.

Hon. Claudia Wilken, the presiding judge in this matter, conditionally certified a class of Nationwide Collective Plaintiffs.  Judge Wilken also ordered Defendant to “disclose to Plaintiff, subject to a protective order if necessary, the number, location and actual job titles of persons who are classified as dispatchers.”  Id. Defendant provided the class members’ contact information to a third-party administrator, who propounded notice to all putative class members.  Id. Defendant also disclosed the number, location and actual job titles of putative class members to Plaintiff. Id. Two California putative members subsequently opted into the case. Id. Read the rest of this entry »

Second District Holds That Purchasing a Product for the Purposes of Litigation Does Not Constitute Injury in Fact Sufficient to Confer Standing Under the UCL

Slot machine.
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The Second District Court of Appeal found that Burger King’s “Transform Your Way” promotional sweepstakes was not a lottery under Penal Code section 319, and that the game pieces were slot machines or punchboards under Penal Code sections 330b and 330c.  McVeigh v. Burger King Corp., B220964, 2010 WL 4056857 (Cal. Ct. App. 2d Dist. Oct. 18, 2010).  The court also held that purchasing a product for the purposes of litigation did not constitute injury in fact sufficient to confer standing under the Unfair Competition Law.  Id. *1.

Background

Plaintiff went to a Burger King restaurant and asked an employee for a free sweepstakes game piece.  Id. And although the game piece prominently indicated that no purchase was necessary, appellant alleged he was told he could not receive a free chance for a prize unless he bought a value meal.  Id. Plaintiff purchased a value meal and removed a pull-tab game piece from the soda and french fry containers.  Id. The game piece required him to scratch off only one of two concealed areas or the game piece would be voided.  Id. Plaintiff-appellant filed a complaint against Burger King, asserting that Burger King had illegally conducted a lottery in violation of section 319, and it had distributed slot machines or punchboards in violation of section 330c.  Id. Burger King’s business acts or practices allegedly caused appellant and the public unspecified injury, as to which appellant claimed entitlement to relief. Id. Read the rest of this entry »

California Class Action Law on Holiday This Week

Zurich city in the night

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I am traveling this week, so California Class Action Law will be updated less frequently.  I’ll resume daily updates next week, October 26, 2010.

Cheers!
Charles Jung

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Magistrate Judge Donna Ryu Approves Petition for Attorneys Fees of $287,589 From a $359,000 Total Settlement Fund

Bounced Check Policy...Post to Wall of Shame
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United States Magistrate Judge Donna M. Ryu of the Northern District of California granted a petition for attorneys fees and costs in a FDCPA class action of up to $23,539.31 in costs and up to $287,589.25 in attorneys’ fees from a $359,000 total settlement fund.  Hunt v. Imperial Merchant Services, No. C-05-04993 DMR, 2010 WL 3958726, *1 (N.D. Cal. Oct. 7, 2010) (slip op.).

Plaintiffs filed a consolidated class action against Defendant Imperial Merchant Services, Inc., doing business as Check Recovery Systems (“IMS”), for violating the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. section 1692 et seq. Id. *1. Plaintiffs claimed that IMS’ practice of demanding 10% interest, in addition to a statutory service charge for dishonored checks, was not permitted by California law and was unlawful under the FDCPA. Id.

Plaintiffs obtained class certification, and the parties reached a class-wide settlement, which generated a $359,000 total settlement fund.  Id. Specifically, the settlement funds are to be used first to pay class notice costs incurred by Plaintiffs’ counsel as well as expenses for administering the class settlement.  Id. Next, the two class representatives will receive $2,000 each, and qualifying class members will be entitled to a pro rata share of the $100,000 Damages Class Fund, up to 100% of an individual class members’ damages. Id. The settlement funds are then be used to pay attorneys’ fees and expenses.  Id. And any remaining settlement funds are to be distributed to designated cy pres recipients. Id. Subject to the terms of the above plan of distribution, the court granted the motion for reimbursement of up to $287,589.25 in attorneys’ fees.  Id.

Legal Standard Read the rest of this entry »

Northern District Denies Class Certification, After Sustaining Objections to a Declaration Designed to Evade a Local Rule on Page Limits

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The United States District Court for the Northern District of California denied a motion for class certification for evading the page limit on briefing by relying on 11 pages of argument crammed into a supporting declaration.  Juarez v. Jani-King Of California, Inc., No. 09-3495 SC, 2010 WL 3766649 (N.D. Cal. Sept. 24, 2010).  Plaintiffs brought a putative class action arising out of the sale of franchises by Defendants Jani-King of California, Inc., Jani-King, Inc., and Jani-King International, Inc.  Id. *1.  Plaintiffs petitioned the Court for leave to file a brief exceeding Northern District of California’s Civil Local Rule 7-4(b)’s twenty-five-page limit, but the court denied the request. Id.

Plaintiffs filed their Motion to Certify, as well as sixty exhibits totaling more than four thousand pages in support of the Motion.  Id. Defendants filed objections to an eleven-page section of a declaration that Plaintiffs filed in support of their Motion.  Id.

The Statement of Facts in Plaintiffs’ motion cited almost exclusively to seventy-six paragraphs in this declaration.  Id. And in turn, these paragraphs cited to the evidence supporting the Motion.  The court gave the following example from the motion and declaration: Read the rest of this entry »

Ninth Circuit Affirms Dismissal of Individual Claims Where Plaintiff Received an Offer of Judgment for More Than Amount He Was Entitled to Recover

special offer
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The United States Court of Appeals for the Ninth Circuit affirmed a dismissal of individual claims in a class action for lack of subject matter jurisdiction, were the named plaintiff received an offer of judgment for more than he was entitled to recover.  Marschall v. Recovery Solution Specialists, Inc., No. 08-55247, 2010 WL 3937992 (9th Cir. Oct. 5, 2010) (slip op.).

Plaintiff Carl N. Marschall appealed pro se from a district court’s judgment dismissing his action brought under the federal Fair Debt Collection Practices Act (“FDCPA”) and the California Fair Debt Collection Practices Act (“Rosenthal Act”).  Id. *1.  Reviewing de novo, the Ninth Circuit found that the district court properly dismissed Marschall’s individual claims against Recovery Solution Specialists, Inc. (“RSS”) for lack of subject matter jurisdiction because RSS’s offer of judgment was for more than Marschall was legally entitled to recover. Id. (citing 15 U.S.C. § 1692k(a); Cal. Civ. Code §§ 1788.17 and 1788.30(b); Chang v. United States, 327 F.3d 911, 919 (9th Cir.2003) (case is moot where there remains “no effective relief … for the court to provide”)).

The Ninth Circuit also affirmed dismissal of the class claims against RSS because Marschall had a “reasonable opportunity to file a motion for class certification but failed to do so.” Id. (citing C.D. Cal. R. 23-3; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Only in rare cases will we question the exercise of discretion in connection with the application of local rules.”)). Read the rest of this entry »

Ninth Circuit Vacates Denial of Unopposed Class Certification Motion for Failure to Conduct a “Rigorous Analysis”

[Buick executives preview the new Buick line o...
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The United States Court of Appeals for the Ninth Circuit reversed a denial of an unopposed class certification motion.  Cortez v. Saia Motor Freight Line, Inc., No. 08-56356, 2010 WL 3938273 (9th Cir. Oct. 8, 2010) (slip. op.).  The Ninth Circuit held that the “district court erred in failing to explain its reasons for denying the unopposed class-certification motion of plaintiff Hoany G. Cortez”.   Id. *1.

The district court’s conclusory assertion that this case presents “no common questions” of law or fact under Rule 23(a) falls far short of the “rigorous analysis” required in the class-certification context. See Fed.R.Civ.P. 23(a); Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). Nor is this a case where the “issues [a]re so plain and the analytical framework so clear that the record,” standing alone, enables effective appellate review. Chamberlan v. Ford Motor Co., 402 F.3d 952, 961 (9th Cir.2005). Contrary to the district court’s conclusion, the record suggests a number of possible common issues, such as whether defendant Saia Motor Freight Line, LLC maintains an official policy of refusing to reimburse workers for required footwear and whether federal OSHA regulations legitimize such a policy.  The district court also omitted any mention of the remaining Rule 23(a) factors and did not discuss any of the prongs of Rule 23(b). See Fed. R. Civ. P. 23(a)-(b). Read the rest of this entry »

Northern District Decertifies FLSA Overtime Class of Loan Officers Because of Lack of Evidence of Centralized Employer Practice re Outside Salespersons Exemption

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The Northern District of California granted defendant’s motion to decertify a conditional FLSA class in Wong v. HSBC Mortgage Corporation (USA), No. C-07-2446 MMC, 2010 WL 3833952 (N.D. Cal. Sept. 29, 2010).  Plaintiff HSBC loan officers allege that HSBC improperly classified them as exempt under the Federal Labor Standards Act (“FLSA”), and, consequently, violated the FLSA by failing to pay them overtime compensation. Id. *1. The Court granted plaintiffs’ motion for an order conditionally certifying, for purposes of the FLSA, a class of persons who, as of May 7, 2004, had been employed by HSBC as loan officers within the United States. Id. Notice of the action was sent to the class, and 120 class members filed consent forms, joining the action as plaintiffs.  Id.

Decertification Motion

HSBC argued that individualized factual determinations will be necessary regarding HSBC’s affirmative defense that plaintiffs are/were properly classified as “outside” salespersons and, consequently, are exempt under the FLSA. Id. *2 (citing 29 U.S.C. § 213(a)(1) (providing “maximum hour requirements” in FLSA do not apply to “any employee employed … in the capacity of outside salesman”)). Read the rest of this entry »