In Weiss v. AstraZeneca Pharmaceuticals et al., No. B215901,2010 WL 3387220 (Cal. Ct. App. 2d Dist. Aug. 30, 2010), the Second District affirmed denial of class certification and summary judgment in favor of defendants relating to the alleged deceptive marketing of the prescription drug Nexium.
The Ninth Circuit, in an unpublished opinion, held that plaintiffs in a securities fraud class action failed to meet the PSLRA’s heightened pleading requirements where the complaint did not contain factual allegations sufficient to demonstrate that the Defendants’ statements regarding a marketing initiative were untrue. In re Jones Soda Company Securities Litigation, No. 09-35732, 2010 WL 3394274 (9th Cir. Aug. 30, 2010). Read the rest of this entry »
Professor Benjamin Spencer’s Federal Civil Practice Bulletin links to an essay by Professor Richard Nagareda entitled Common Answers for Class Certification. The essay focuses on Dukes v. Wal-Mart Stores, Inc. Prof. Nagareda argues that the Supreme Court should review and reverse the Dukes opinion because of a “crucial conceptual error in Dukes: the majority’s confusion between motions for class certification and the motion that really does regulate the relationship between the court and the fact finder (summary judgment).” Read the rest of this entry »
The Second District Court of Appeal, in an unpublished opinion, reversed a trial court’s denial of plaintiff’s motion to certify a nationwide class in Schlesinger v. Superior Court of Los Angeles County (Ticketmaster), B224880, 2010 WL 3398844 (Cal. Ct. App. 2d Dist. Aug. 31, 2010). Read the rest of this entry »
The Second District Court of Appeal, in an unpublished opinion, affirmed a trial court’s grant of summary judgment in favor a Restoration Hardware, Inc. (RHI) for alleged misrepresentations of the price of RHI’s merchandise at its discount outlet stores. Heller v. Restoration Hardware, Inc., B215218, 2010 WL 3387506 (Cal. Ct. App. 2d Dist. Aug. 30, 2010). Plaintiff alleged that RHI outlet stores engaged in a practice of misrepresenting the actual discounts given on furniture. Id. *1. Plaintiff contended she purchased at an outlet store an advertised “Del Mar” outdoor chair, which had an original retail price of $750 from which a percentage discount was taken, when in fact the price in RHI’s catalog and on the internet at its website was $685. Id. Plaintiff’s complaint stated five causes of action: violations of the UCL, the FAL, the CLRA, negligent misrepresentation, and fraud and deceit.
The court affirmed, holding: Read the rest of this entry »
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”:
Wal-Mart filed its cert petition last week of Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. Apr. 26, 2010). Sitting en banc, Ninth Circuit affirmed District Judge Martin J. Jenkins’ order certifying a Fed. R. Civ. P. 23(b)(2) class of current employees with respect to their claims for inclutive relief, declaratory relief, and back pay. The petition presents 2 questions:
I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances. Read the rest of this entry »
District Judge Larry Alan Burns, in Gold v. NCO Financial Systems, Inc., No. 09cv1646-LAB (CAB), 2010 WL 3339498 (S.D. Cal. Aug. 23, 2010) (slip op.) considered a fee motion after defendant’s Fed. R. Civ. P. 68 offer of judgment was accepted. The court, in a quite granular opinion, reduced the requested hourly rates of $250-400 to $225-295. The court also reduced time for block billing, intra-office communication, and unnecessary work. Id. **3-4. Comparing the fees to the $3,000 judgment achieved for plaintiff, the court reduced the fee award by 1/3 to $6,207.43. The court reduced the costs from a requested $2,406.51 to $71.
In Royalty Alliance, Inc. v. Tarsadia Hotel, et al., Nos. 09CV2739 DMS (CAB), 10CV1231 DMS (CAB), 2010 WL 3339202 (S.D. Cal. Aug. 23, 2010) (slip op.), the court remanded a securities class action to state court and also rejected defendant’s request that the court consider two similar class actions for the purpose of evaluating CAFA jurisdiction. Read the rest of this entry »
In Tanen v. Southwest Airlines Co., No. B217818., — Cal. Rptr. 3d —-, 2010 WL 3341969 (Cal. Ct. App. 2d Dist. Aug. 26, 2010), the Second District held that California’s gift certificate law is preempted by the federal Airline Deregulation Act (“ADA”) as aplied to travel certificates. Plaintiff and appellant Mitch Tanen (Tanen) bought a $100 travel certificate from defendant and respondent Southwest Airlines Co. (Southwest), but when he attempted to redeem it 14 months later, after its stated expiration date, Southwest refused to honor it. Id. *1. Read the rest of this entry »
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