Posted On: August 31, 2006 by Michael J. Hassen Email This Post

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In re AT&T-Class Action Defense Cases: District Court Did Not Abuse Its Discretion In Approving $21 Million Attorney Fee Award Out Of $100 Million Securities Fraud Class Action Settlement Fund Third Circuit Holds

District Court Must Examine Class Action Attorney Fee Awards Closely but not According to a Strict Formula and, so Viewed, Approval of Class Action Settlement was Proper

Plaintiffs filed a federal securities fraud class action against AT&T based on allegedly false statements that artificially inflated stock prices. The defense waged an intense battle for several years but ultimately settled the class action claims for $100 million eight (8) days into a jury trial. The district court approved the settlement, which included payment of attorney fees equal to 21.25% of the settlement proceeds ($21.25 million), and four objectors appealed. The Third Circuit affirmed. In re AT&T Corp. Securities Litig., 455 F.3d 160 (3d Cir. 2006).

The July 20, 2006 opinion details the typical procedure for assessing attorney fees in the Third Circuit, and analyzed each of the factors the district court was required to consider when determining whether to approve a class action settlement. In the Third Circuit, those factors are set forth in Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), and include:

Continue reading "In re AT&T-Class Action Defense Cases: District Court Did Not Abuse Its Discretion In Approving $21 Million Attorney Fee Award Out Of $100 Million Securities Fraud Class Action Settlement Fund Third Circuit Holds" »

Posted On: August 30, 2006 by Michael J. Hassen Email This Post

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Everett v. Verizon-Class Action Defense Cases: Defense Failed To Establish Amount In Controversy For Removal Of Class Action To Federal Court Because Neither Disgorgement Nor Punitive Damage Claims May Be Aggregated Sixth Circuit Holds

Court of Appeals Reverses District Court Denial of Motion to Remand Because Defense Failed to Satisfy $75,000 Amount-In-Controversy Requirement Under 28 U.S.C. § 1332, and Holds as Matter of First Impression in Sixth Circuit that Punitive Damages may not be Aggregated to Meet Threshold

After plaintiffs filed a putative class action in state court against several cellular telephone companies arising out of the allegedly false representation that customers “would not be charged for unanswered phone calls or those that generated a busy signal,” and praying for “an unspecified amount of compensatory damages, injunctive relief, restitution, [and] disgorgement,” defense attorneys removed the action to federal court on the basis of diversity jurisdiction. Everett v. Verizon Wireless, Inc., 460 F.3d 818 (6th Cir. 2006). Plaintiffs moved to remand the action to state court on the ground that the defense had not satisfied its burden of establishing that the $75,000 amount-in-controversy requirement, but the district court denied the motion holding that “the size of the disgorgement claim met this threshold.” Id., at 821. Eventually, the federal action involved but a single class representative and a single defendant, and the district court granted a defense motion for summary judgment as to the claims remaining against it. Plaintiff appealed only the district court’s remand order, not the ruling on the merits. Id. The Circuit Court agreed with plaintiff’s argument and reversed.

Continue reading "Everett v. Verizon-Class Action Defense Cases: Defense Failed To Establish Amount In Controversy For Removal Of Class Action To Federal Court Because Neither Disgorgement Nor Punitive Damage Claims May Be Aggregated Sixth Circuit Holds" »

Posted On: August 30, 2006 by Michael J. Hassen Email This Post

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Barnett v. Experian-Class Action Defense Cases: Texas Court Decertifies Class Action Under Federal Fair Debt Collection Practices Act (FDCPA) Decertified Because Defendant In Bankruptcy

Federal Court Holds Decertification of Class Action Appropriate Where Defense Lacks Financial Ability to Satisfy Claims

Plaintiffs filed a class action against defendants, including The Credit Store, alleging violations of the federal Fair Debt Collection Practices Act (FDCPA); a Texas federal district court certified the class action, but the defense delayed implementation of the certification order by filing a bankruptcy petition. The district court decertified the class action against The Credit Store sua sponte because it lacked the financial ability to satisfy any judgment against it. Barnett v. Experian Information Solutions, Inc., 236 F.R.D. 307 (E.D. Tex. 2006). The district court summarized the allegations against The Credit Store as follows: "The plaintiffs contend that the defendant purchased old debts and changed the date of last activity on the accounts such that they could be reported to credit reporting agencies under the Fair Credit Reporting Act. This gave the debt collectors leverage to collect the obsolete debts." Id., at 308.

Continue reading "Barnett v. Experian-Class Action Defense Cases: Texas Court Decertifies Class Action Under Federal Fair Debt Collection Practices Act (FDCPA) Decertified Because Defendant In Bankruptcy" »

Posted On: August 29, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases-Kolari v. New York-Presbyterian Hospital: Federal District Court Erred In Exercising Supplemental Jurisdiction And Dismissing Class Action State-Law Claims Second Circuit Holds

Second Circuit Holds that Once District Court Granted Defense Motion to Dismiss Federal Claims that Provided Federal Jurisdiction it Should have Remanded State-Law Class Action Claims to State Court Rather than Dismissing Them with Prejudice

Plaintiffs filed a putative class action against asserting various federal and state-law claims based on allegedly inflated heath care treatment rates. The defense moved to dismiss the class action complaint in its entirety. The district court granted the defense motion, and plaintiffs appealed the dismissal of three of their state-law class action claims arguing that (1) the court should have remanded the claims to state court once it disposed of the federal class action claims, and (2) even if the court should have retained jurisdiction, it erred in dismissing the state-law claims. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118 (2d Cir. 2006). Because the Second Circuit agreed with the first argument advanced by plaintiffs, if did not reach the latter argument. Id., at 119.

Continue reading "Class Action Defense Cases-Kolari v. New York-Presbyterian Hospital: Federal District Court Erred In Exercising Supplemental Jurisdiction And Dismissing Class Action State-Law Claims Second Circuit Holds" »

Posted On: August 28, 2006 by Michael J. Hassen Email This Post

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Qwest Class Action Defense Case-In re Qwest Communications: Multidistrict Litigation (MDL) Judicial Panel Grants Defense Motion To Centralize Securities Cases In District Of Colorado Where Class Action Is Pending

Judicial Panel on Multidistrict Litigation (MDL) Grants Defense Motion Under § 1407 Motion to Consolidate Cases for Pretrial Purposes Before Class Action Judge even though Court-Approved Partial Settlement of Class Action is Pending

More than two dozen lawsuits – including at least one class action – were filed against Qwest Communications arising out of “alleged financial irregularities in connection with Qwest securities.” Defense attorneys sought to centralize pretrial proceedings under 28 U.S.C. § 1407; plaintiffs’ lawyers in several actions objected. The Judicial Panel on Multidistrict Litigation (MDL) granted the defense motion. In re Qwest Communications Int’l, Inc., Securities & “ERISA” Litig. (No. II), 444 F.Supp.2d 1343 (Jud.Pan.Mult.Lit. 2006). Objecting plaintiffs argued “transfer should be denied because 1) a partial settlement has been approved in class action proceedings in the District of Colorado that have been pending since 2001; 2) alternatives to 1407 transfer were available to address any common discovery matters and to prevent inconsistent pretrial rulings; and/or 3) transfer would be unduly burdensome or otherwise prejudicial.” Id., at 1345. The Panel rejected these claim, explaining at page 1345:

Continue reading "Qwest Class Action Defense Case-In re Qwest Communications: Multidistrict Litigation (MDL) Judicial Panel Grants Defense Motion To Centralize Securities Cases In District Of Colorado Where Class Action Is Pending" »

Posted On: August 28, 2006 by Michael J. Hassen Email This Post

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Jones v. People's Heritage Bank-Class Action Defense Cases: Lender's Retention of Portion Of Loan Proceeds As "Administrative Charge" Does Not Violate Federal Truth In Lending Act Georgia Court Holds

Georgia Federal District Court Holds that TILA (Truth in Lending Act) and Regulation Z do not Require Disclosure of "Administrative Charges"

A putative class action was filed in state court alleging inter alia that a dental fee payment plan violated the federal Truth in Lending Act (TILA), 15 U.S.C. §§ 1601 et seq., and Regulation Z because the lender kept a portion of the loan proceeds to cover an "administrative charge" rather than forwarding all sums borrowed to the dentist. Jones v. People's Heritage Bank, 433 F.Supp.2d 1328 (S.D. Ga. 2006). The district court agreed with defense attorneys that the terms of the loan were fairly disclosed, and so dismissed the federal TILA claim in the class action complaint and remanded the balance of the action to state court.

Plaintiff required $10,000 in dental work, half of which was covered by insurance. To pay the remaining $5,000, plaintiff elected to finance the dental work through a dental fee plan offered by her dentist through a lender, AmeriFee. The loan contract stated that the $5,000 would be paid to the dentist; AmeriFee, however, kept 7.5% of the loan amount ($375) as an "administrative charge." Plaintiff's class action complaint alleged that the failure to disclose the "administrative charge" for loan transactions violated TILA. Jones, at 1329. Specifically, the class action complaint alleged that this conduct violated state law and constituted a breach of contract, and that it also violated TILA and Reg Z "by failing to disclose and by making a misrepresentation of the amount financed and to whom the amount of the loan was paid." Id., at 1331. In essence, plaintiff argued that her loan amount should have been only $4,625 - the amount the dentist received - and that the $375 administrative fee qualified as a "finance charge," id., at 1333.

Continue reading "Jones v. People's Heritage Bank-Class Action Defense Cases: Lender's Retention of Portion Of Loan Proceeds As "Administrative Charge" Does Not Violate Federal Truth In Lending Act Georgia Court Holds" »

Posted On: August 27, 2006 by Michael J. Hassen Email This Post

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In re Bausch & Lomb-Class Action Defense Cases: Multidistrict Litigation (MDL) Judicial Panel Transfers Putative Nationwide Class Action Cases To District Of South Carolina

Judicial Panel on Multidistrict Litigation (MDL) Grants Motion To Centralize Litigation for Pretrial Purposes and Selects District Where Manufacturing Facility is Located as Transferee Court

A multitude of lawsuits, including several putative nationwide class action lawsuits, were filed against Bausch & Lomb arising out of its ReNu contact lens solution, which Bausch & Lomb (“B & L”) withdrew from the market after it was associated fungal keratitis (a type of eye infection). Several parties requested that the Judicial Panel on Multidistrict Litigation (MDL) centralize the litigation for pretrial purposes under 28 U.S.C. § 1407. The Panel agreed that such centralization would “serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation” because the action shared factual allegations concerning “i) the development, testing, manufacturing and marketing of Renu with MoistureLoc; and ii) B & L's knowledge concerning Renu with MoistureLoc's alleged adverse effects, in particular, the potential for this product to cause fungal keratitis.” In re Bausch & Lomb Inc. Contact Lens Solution Prods. Liab. Litig., 444 F.Supp.2d 1336, 1338 (Jud.Pan.Mult.Lit. 2006).

In selecting the District of South Carolina as the appropriate transferee court, the Panel noted, “Relevant discovery may be found in this district, inasmuch as B & L has a manufacturing facility located there.” In re Bausch & Lomb, at 1338.

Download PDF file of In re Bausch & Lomb Transfer Order

Posted On: August 27, 2006 by Michael J. Hassen Email This Post

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15 U.S.C. § 1681m – Requirements on Users of Consumer Reports: Statutory Language of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer

As a resource for defense attorneys who defend against class action under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The article sets forth the statutory provisions concerning requirements placed on users of consumer reports:

§ 1681m. Requirements on users of consumer reports

(a) Duties of users taking adverse actions on the basis of information contained in consumer reports.

If any person takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer report, the person shall

(1) provide oral, written, or electronic notice of the adverse action to the consumer;

(2) provide to the consumer orally, in writing, or electronically

(A) the name, address, and telephone number of the consumer reporting agency (including a toll-free telephone number established by the agency if the agency compiles and maintains files on consumers on a nationwide basis) that furnished the report to the person; and

(B) a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken; and

(3) provide to the consumer an oral, written, or electronic notice of the consumer' s right

(A) to obtain, under section 1681j of this title, a free copy of a consumer report on the consumer from the consumer reporting agency referred to in paragraph (2), which notice shall include an indication of the 60-day period under that section for obtaining such a copy; and

(B) to dispute, under section 1681i of this title, with a consumer reporting agency the accuracy or completeness of any information in a consumer report furnished by the agency.

(b) Adverse Action Based on Information Obtained from Third Parties Other than Consumer Reporting Agencies

(1) In general.

Whenever credit for personal, family, or household purposes involving a consumer is denied or the charge for such credit is increased either wholly or partly because of information obtained from a person other than a consumer reporting agency bearing upon the consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, the user of such information shall, within a reasonable period of time, upon the consumer' s written request for the reasons for such adverse action received within sixty days after learning of such adverse action, disclose the nature of the information to the consumer. The user of such information shall clearly and accurately disclose to the consumer his right to make such written request at the time such adverse action is communicated to the consumer.

(2) Duties of Person Taking Certain Actions Based on Information Provided by Affiliate

(A) Duties, generally.

If a person takes an action described in subparagraph (B) with respect to a consumer, based in whole or in part on information described in subparagraph (C), the person shall

(i) notify the consumer of the action, including a statement that the consumer may obtain the information in accordance with clause (ii); and

(ii) upon a written request from the consumer received within 60 days after transmittal of the notice required by clause (i), disclose to the consumer the nature of the information upon which the action is based by not later than 30 days after receipt of the request.

(B) Action described.

An action referred to in subparagraph (A) is an adverse action described in section 1681a(k)(1)(A) of this title, taken in connection with a transaction initiated by the consumer, or any adverse action described in clause (i) or (ii) of section 1681a(k)(1)(B) of this title.

(C) Information described. Information referred to in subparagraph (A)

(i) except as provided in clause (ii), is information that

(I) is furnished to the person taking the action by a person related by common ownership or affiliated by common corporate control to the person taking the action; and

(II) bears on the credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living of the consumer; and

(ii) does not include

(I) information solely as to transactions or experiences between the consumer and the person furnishing the information; or

(II) information in a consumer report.

Continue reading "15 U.S.C. § 1681m – Requirements on Users of Consumer Reports: Statutory Language of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer" »

Posted On: August 26, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases-Bickley v. Caremark: ERISA Class Action Plaintiff Properly Required To Exhaust Administrative Remedies Eleventh Circuit Holds

Circuit Court Affirms District Court Order Granting Defense Motion to Dismiss ERISA Class Action Complaint Because Plaintiff Failed to Exhaust Administrative Remedies

An employee filed a putative ERISA class action on behalf of his employer’s health insurance plan against the Pharmacy Benefits Manager alleging breach of fiduciary duties for profiting from “undisclosed discounts, rebates, coupons and other forms of compensation from drug companies and pharmacies.” The district court granted the defense motion to dismiss the class action with prejudice because plaintiff failed to exhaust his administrative remedies, and the Eleventh Circuit affirmed. Bickley v. Caremark RX, Inc., 461 F.3d 1325 (11th Cir. 2006).

The Circuit Court summarized the allegations in plaintiff’s class action complaint at page 1328 as follows:

Continue reading "Class Action Defense Cases-Bickley v. Caremark: ERISA Class Action Plaintiff Properly Required To Exhaust Administrative Remedies Eleventh Circuit Holds" »

Posted On: August 26, 2006 by Michael J. Hassen Email This Post

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In re Intel-Class Action Defense Cases: Defense Keeps Class Action Removed Under CAFA (Class Action Fairness Act) In Federal Court Because Amount In Controversy Exceeds $5 Million

Federal District Court Denies Motion for Reconsideration of Order Denying Motion to Remand Class Action to State Court Because Defense Established Jurisdiction Under Class Action Fairness Act (CAFA).

Plaintiff filed a putative antitrust class action against Intel Corporation in state court, which the defense removed to federal court under CAFA (Class Action Fairness Act). The district court denied plaintiff’s motion to remand the class action to state court, and plaintiff moved for reconsideration. In re Intel Corp. Microprocessor Antitrust Litig., 436 F.Supp.2d 687 (D. Del. 2006). The district court explained that it refused to remand the lawsuit to state court because the defense “had carried its burden of proving that federal jurisdiction exists” because the defense “carr[ied] its burden of setting out the amount in controversy” and plaintiff did not “establish to a legal certainty that the amount in controversy was less than the statutorily required $5,000,000.” Id., at 688. Plaintiff’s motion for reconsideration argued that the district court erred by (1) failing to consider his evidence concerning the amount in controversy, and (2) accepting Intel’s estimate which was based on the cost of the computer as a whole rather than the cost of the microprocessor itself. Id., at 689. The district court denied plaintiff’s motion.

Continue reading "In re Intel-Class Action Defense Cases: Defense Keeps Class Action Removed Under CAFA (Class Action Fairness Act) In Federal Court Because Amount In Controversy Exceeds $5 Million" »

Posted On: August 26, 2006 by Michael J. Hassen Email This Post

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15 U.S.C. §§ 1681k and 1681l – Public Record Information for Employment Purposes/ Restrictions on Investigative Consumer Reports: Statutory Language of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer

As a resource for defense attorneys who defend against class action under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The article sets forth the statutory provisions concerning public record information and restrictions on investigative consumer reports, contained in Sections 1681k and 1681l, respectively:

§ 1681k. Public record information for employment purposes

(a) In general.

A consumer reporting agency which furnishes a consumer report for employment purposes and which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer' s ability to obtain employment shall

(1) at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or

(2) maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer' s ability to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.

(b) Exemption for national security investigations.

Subsection (a) does not apply in the case of an agency or department of the United States Government that seeks to obtain and use a consumer report for employment purposes, if the head of the agency or department makes a written finding as prescribed under section 1681b(b)(4)(A) of this title.

§ 1681l. Restrictions on investigative consumer reports

Whenever a consumer reporting agency prepares an investigative consumer report, no adverse information in the consumer report (other than information which is a matter of public record) may be included in a subsequent consumer report unless such adverse information has been verified in the process of making such subsequent consumer report, or the adverse information was received within the three-month period preceding the date the subsequent report is furnished.

Posted On: August 25, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases—In re Digital Music: Multidistrict Litigation (MDL) Judicial Panel Transfers Putative Class Action Antitrust Cases At Request Of Plaintiffs And Defense To Southern District Of New York

Judicial Panel on Multidistrict Litigation (MDL) Grants Motions by Defense and Plaintiffs to Centralize Class Action Antitrust Cases under 28 U.S.C. § 1407 for Pretrial Purposes

Several class action lawsuits were filed against Sony BMG Music Entertainment, Sony Corporation of America, Bertelsmann Music Group, Bertelsmann, Inc., Universal Music Group, Time Warner, Warner Music Group and EMI Music North America alleging “that the various defendants illegally conspired to artificially fix or maintain the prices of digitally formatted music offered for sale on the internet in violation of 1) Section 1 of the Sherman Act, 15 U.S.C. § 1, 2) various states' antitrust and consumer protection statutes, and/or 3) state common law such as unjust enrichment.” In re Digital Music Antitrust Litig., ___ F.Supp.2d ___, 2006 WL 2422644 (Jud.Pan.Mult.Lit., August 16, 2006), Slip Opn., at 2. Pursuant to 28 U.S.C. § 1407, the defense filed a motion with Judicial Panel on Multidistrict Litigation (MDL) seeking centralization of the lawsuits for pretrial purposes in the Southern District of New York; the plaintiffs’ lawyer for an action pending the Southern District of New York filed a motion with the Judicial Panel seeking the same order. Other plaintiff attorneys sought transfer to the Northern District of California. Id., at 1.

The Panel granted the motions to centralize the actions under 28 U.S.C. § 1407, and agreed that the Southern District of New York was the appropriate transferee court: “Most defendants are headquartered in the Southern District of New York, and some relevant witnesses and documents may be located there. Moreover, this district enjoys the support of the defendants as well as some plaintiffs in this litigation.” In re Digital Music, at 2.

Download PDF file of In re Digital Music Transfer Order

Posted On: August 25, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases—In re Cintas: Judicial Panel On Multidistrict Litigation (MDL) Holds That Statutory Objective of Pretrial Centralization Under § 1407 Includes Actions Brought To Compel Arbitration

Judicial Panel on Multidistrict Litigation (MDL) Grants Motion To Centralize Litigation in Federal Fair Labor Standards Act (FLSA) Overtime Case for Pretrial Purposes Over Defense Objection

Current and former employees filed a "collective" action against Cintas Corp. in the Northern District of California alleging failure to pay overtime in violation of the federal Fair Labor Standards Act (FLSA) (the Veliz action) involving 2,000 plaintiffs. Cintas (as plaintiff) filed 70 actions against approximately 1800 of the Veliz plaintiffs to compel arbitration. The Veliz plaintiffs moved the Judicial Panel on Multidistrict Litigation (MDL) pursuant to 28 U.S.C. § 1407 to centralize the actions for pretrial purposes; the defense objected arguing, in part, that the lawsuits it had filed were not "civil actions" and were therefore outside the jurisdiction of the Panel. The Panel disagreed: "In order to effectuate the statutory objectives, transfer under Section 1407 should contemplate the broadest sweep of the term, 'civil action.'" In re Cintas Corp. Overtime Pay Arbitration Litig., 444 F.Supp.2d 1353, 1355 (Jud.Pan.Mult.Lit. 2006). One reason the Panel ordered centralization was because courts in each of the 71 lawsuits would be required to interpret identical contractual arbitration clauses and determine whether to compel arbitration. Id. The Panel selected the Northern District of California as the appropriate transferee court "because i) the district is where the first filed and significantly more advanced action is pending before a judge already well versed in the issues presented by the litigation; and ii) all parties are in agreement that if the litigation is centralized, the California district should be selected as transferee forum." Id.

Download PDF file of In re Cintas Transfer Order

Posted On: August 25, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases—In re McDonald’s: Multidistrict Litigation (MDL) Judicial Panel Transfers Putative Nationwide Class Action Cases To Northern District Of Illinois

Judicial Panel on Multidistrict Litigation (MDL) Grants § 1407 Motion to Centralize Pretrial Proceedings for Putative Nationwide Class Actions in District Where Defense Corporate Headquarters is Located

Six lawsuits, including five putative nationwide class action cases, were filed against McDonald’s which – though alleging various theories of liability – were all based on the central allegation that McDonald’s “misled the public regarding the presence of gluten, wheat or dairy derivatives in its french fries.” A motion was filed with the Judicial Panel on Multidistrict Litigation (MDL) to consolidate pretrial proceedings under 28 U.S.C. § 1407, and all parties agreed that the Northern District of Illinois was the appropriate transferee district. The Panel agreed, finding: “The Northern District of Illinois is a likely source of relevant documents and witnesses, inasmuch as McDonald's headquarters is located there.” In re McDonald’s French Fries Litig., 444 F.Supp.2d 1342, 1343 (Jud.Pan.Mult.Lit. 2006).

Download PDF file of In re McDonald's Transfer Order

Posted On: August 25, 2006 by Michael J. Hassen Email This Post

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Indicted Class Action Firm Continues To Lose Attorneys And Close Offices--Latest Lawyer Switches To Defense

Class action plaintiff firm Milberg Weiss Bershad & Schulman LLP and two of the firm's top partners, David Bershad and Steven Schulman - indicted in mid-May 2006 for paying millions of dollars in kickbacks to clients to serve as plaintiffs - continues to top-notch trial lawyers. The latest to leave, according to Julie Creswell of the New York Times, is Patricia Hynes, who joined Milberg Weiss in 1982. Ms. Hynes' decision is particularly intriguing because she moves from representing class action plaintiffs to defense work at Allen & Overy.

Creswell notes, "Milberg Weiss has struggled to keep lawyers, clients and crucial cases after a federal grand jury in Los Angeles indicted the firm and two of its name partners in May on criminal charges involving $11.3 million in illegal secret payments that were made to individuals who served as plaintiffs in more than 150 lawsuits over several years." The exodus has caused Milberg Weiss to close its offices in Boca Raton, Florida and in Washington, and Creswell reports that an office is Delaware will soon follow.

Julie Creswell's article, entitled "Another Prominent Lawyer Departs From Milberg Weiss," may be found in Section C. of today's edition of the New York Times.

Posted On: August 25, 2006 by Michael J. Hassen Email This Post

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Schacter v. Circuit City-Class Action Defense Cases: Massachusetts Federal Court Denies Defense Motion To Dismiss Class Action Arising From Allegedly Premature Termination Of Product Warranty Plan

Massachusetts Federal Court Denies Defense Motion to Dismiss "Marginal" Claims at Pleading Stage

Circuit City customers brought a putative class action asserting various state law claims arising out of the allegedly premature termination of product warranties, and the defense filed a motion to dismiss. Schacter v. Circuit City Stores, Inc., 433 F.Supp.2d 140 (D. Mass. 2006). Specifically, plaintiffs purchased a telephone from Circuit City, together with an additional two-year warranty from Circuit City; the telephone failed and the store gave them a gift card for the full amount of the purchase price, including taxes. The store did not give them any credit for the "unused" portion of their two-year warranty because reimbursement or replacement terminated the warranty. Id., at 142. Plaintiffs' class action complaint alleged breach of contract, promissory estoppel, unjust enrichment, conversion, and violation of the Massachusetts Consumer Protection Act. Id., at 141. Defense attorneys moved to dismiss the complaint. The district court summarized the positions of the defense and plaintiffs at page 143 as follows:

Continue reading "Schacter v. Circuit City-Class Action Defense Cases: Massachusetts Federal Court Denies Defense Motion To Dismiss Class Action Arising From Allegedly Premature Termination Of Product Warranty Plan" »

Posted On: August 24, 2006 by Michael J. Hassen Email This Post

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In re H & R Block-Class Action Defense Cases: Multidistrict Litigation (MDL) Judicial Panel Transfers Putative Nationwide Class Action Cases To Western District Of Missouri Over Defense Objection

Judicial Panel on Multidistrict Litigation (MDL) Grants § 1407 Motion Over Defense Objection Finding Centralization Particularly Helpful With Respect to Class Certification Issues Presented by Numerous Putative Nationwide Class Actions

Numerous lawsuits – almost all of them putative nationwide class action cases – were filed against H & R Block, Inc., H & R Block Financial Advisors, Inc. and H & R Block Tax Services, Inc. alleging that the manner in which they marketed and sold defendants’ Express Individual Retirement Account product breached fiduciary duties owed their clients. A motion to consolidate pretrial proceedings under 28 U.S.C. § 1407 was filed; the defense opposed the motion to centralize the actions. The Judicial Panel on Multidistrict Litigation (MDL) granted the motion over the defense objection, finding that centralize “will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” In re H & R Block, Inc., Express IRA Marketing Litig., 444 F.Supp.2d 1339, 1340 (Jud.Pan.Mult.Lit. 2006). In fact, the Panel believed that such centralization was required “in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings (particularly with respect to the issue of class certification), and conserve the resources of the parties, their counsel and the judiciary.” Id. (italics added). Accordingly, the Panel transferred the cases to the Western District of Missouri, noting that most of the lawsuits were pending in that district and that it was the location of H & R Block’s corporate headquarters. Id., at 1341.

Download PDF file of In re H & R Block Transfer Order

Posted On: August 24, 2006 by Michael J. Hassen Email This Post

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Defense Gears Up For Lawsuit Challenging The Hiring Of Illegal Immigrants Under California's Unfair Competition Statute

California Lawsuit Follows Settlement of Class Action in Washington State Court Brought by Employees on Theory that Hiring Illegal Immigrants Reduced Wages

Molly Selvin of The Los Angeles Times reported yesterday on the California lawsuit filed by Global Horizons against Munger Bros. and two of Global’s competitors, Ayala Agricultural Services and J & A Contractors, claiming that Munger Bros. breached an agreement to hire 600 blueberry pickers through Global so that it could instead hire illegal immigrants from the competition. Ms. Selvin explains that the lawsuit is premised on California’s unfair competition laws, and appears to be the first of its kind. The lawsuit seeks to enforce immigration laws, and reflects, in the words of a law professor, "a real anger that's out there." If that is true, then the lawsuit could be a harbinger of things to come, as companies sue other companies alleging that the use of illegal immigrants gives them an unfair advantage. The lawsuit follows the settlement of a Washington-state court class action where employees "sued their employer for driving down wages by hiring undocumented workers." That action settled for $1.3 million, but it was premised on federal anti-racketeering laws rather than a state unfair competition statute.

Ms. Selvin's article, entitled “Suit Targets Hiring of Illegal Farmworkers,” may be found in the Business Section of the August 23, 2006 Los Angeles Times.

Posted On: August 24, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases-Jacobson v. Healthcare Financial: New York Federal Court Throws Out Class Action Under FDCPA (Fair Debt Collection Practices Act) And Awards Defense Attorney Fees

New York Federal Court Converts Defense Motion to Dismiss FDCPA Class Action to Motion for Summary Judgment, Grants Motion, and Awards Defense Attorney Fees and Costs Because Lawsuit was Filed for Purpose of Harassment

After debt collector sent plaintiff a letter demanding payment of a $492 debt, plaintiff filed a putative class action alleging that the letter violated the federal Fair Debt Collection Practices Act (FDCPA) because it (1) demanded payment within 30 days and (2) that the letter’s request for “payment or notice of dispute” within 30 days “might” be interpreted as giving the debtor 30 days from the date of the letter rather than from its receipt. Jacobson v. Healthcare Fin. Servs, Inc., 434 F.Supp.2d 133, 139 (E.D.N.Y. 2006). The defense was not amused; and judging from the ruling, neither was the federal court.

The federal court discussed the fact that FDCPA claims are subject to abuse:

Continue reading "Class Action Defense Cases-Jacobson v. Healthcare Financial: New York Federal Court Throws Out Class Action Under FDCPA (Fair Debt Collection Practices Act) And Awards Defense Attorney Fees" »

Posted On: August 23, 2006 by Michael J. Hassen Email This Post

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California Action Targets Hiring Of Illegal Immigrants Under California’s Unfair Competition Statute

Peter Prengaman of The Associated Press last night reported that a lawsuit has been filed in California by a company, Global Horizons, claiming that another company, Munger Bros., breached an agreement to hire 600 blueberry pickers so that it could instead hire illegal immigrants from two competing temporary placement agencies, Ayala Agricultural Services and J & A Contractors. Prengaman reports that the complaint is premised on California's unfair competition laws, and quotes the President of Global Horizon as stating that "[the] hiring of illegal immigrants is hurting our business badly." In essence, the complaint seeks to enforce immigration laws. The lawsuit could be a harbinger of things to come, as at least one attorney believes additional lawsuits targeting illegal immigration, on the grounds that competitors realize an unfair advantage from using illegal immigrants, will soon follow.

Posted On: August 23, 2006 by Michael J. Hassen Email This Post

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Ford Motor Class Action Defense Cases-Daffin v. Ford Motor: Federal District Court Certification Of Class Action Over Defense Objection Not An Abuse Of Discretion Sixth Circuit Holds

Sixth Circuit Affirms District Court Order Granting Motion to Certify Class Action Against Car Manufacturer

On August 18, 2006, the Sixth Circuit Court of Appeals affirmed a federal district court order certifying a nationwide class action against Ford Motor Company, arising out of an allegedly defective throttle body assembly in Mercury Villager minivans causing the accelerator to stick. Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. August 18, 2006). Plaintiff filed suit in state court on her own behalf because the accelerator in her 1999 Villager would get stuck even after Ford repairs to the throttle body assembly. Ford removed the action to federal court, and plaintiff’s lawyer sought certification of a nationwide class action, apparently under Rule 23(b)(2). The district court instead certified a statewide class under Rule 23(b)(3), because the class action complaint sought monetary rather than injunctive relief. Id., at 551-52. Defense attorneys filed an interlocutory appeal of the class certification order under FRCP Rule 23(f). The Sixth Circuit affirmed, holding that the district court did not abuse its discretion in certifying the class and rejecting defense arguments that “this is a case of ‘certify now, worry later.’” Id., at 552.

Defense attorneys argued that because it provided a “repair or replace” warranty to car purchasers, certain class members may never suffer the damage alleged in the complaint. The Sixth Circuit summarized Ford’s argument as follows: “because the class as a whole cannot recover, the district court abused its discretion by certifying a statewide express warranty class.” Id., at 552. Plaintiff countered that Ford was seeking a ruling “on the merits” and that ultimate success is not a proper basis for denying class certification. Id. The Sixth Circuit concluded that “[plaintiff] has the better of the arguments at this stage of the litigation.” Id.

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Posted On: August 23, 2006 by Michael J. Hassen Email This Post

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Trezvant v. Fidelity-Class Action Defense Cases: Massachusetts Federal Court Grants Defense Motion To Partially Dismiss Class Action That Sought Overtime Pay Under Fair Labor Standards Act (FLSA) And New Hampshire State Law

Massachusetts District Court Grants Joint Motion To Decertify Class And Grants Defense Motion To Dismiss New Hampshire State Law Class Action Overtime Claims

Salaried employees filed a putative class action alleging that they were misclassified as exempt and seeking overtime pay under the federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and under New Hampshire state law. Trezvant v. Fidelity Employer Servs. Corp., 434 F.Supp.2d 40 (D. Mass. 2006). During the litigation, the Massachusetts federal district court granted plaintiffs’ motion to conditionally certify an FLSA class action, and a defense motion to dismiss the state law claims contained in the class action complaint. Later still, the district court granted a joint motion to decertify the class because only a few class members opted into the lawsuit. The court then issued a single memorandum discussing these rulings. Id., at 42.

Continue reading "Trezvant v. Fidelity-Class Action Defense Cases: Massachusetts Federal Court Grants Defense Motion To Partially Dismiss Class Action That Sought Overtime Pay Under Fair Labor Standards Act (FLSA) And New Hampshire State Law" »

Posted On: August 22, 2006 by Michael J. Hassen Email This Post

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Dreyfus Mutual Funds-Class Action Defense Cases: Shareholders' Investment Company Act § 36(b) Claim Must Be Brought Derivatively Not As A Class Action So Both It And § 48(a) Claim Based On It Fail Pennsylvania Federal Court Holds

Federal District Court Grants Defense Motion for Judgment on Pleadings and Dismisses Class Action Because § 36(b) Claims under Investment Company Act Cannot Proceed as a Class Action But Rather Must be Brought Derivatively

A putative class action alleging securities fraud was filed against investment advisors, distributors and directors of Dreyfus brand mutual funds ("Dreyfus"); the class action complaint asserted that "investment advisors and distributors of Dreyfus brand mutual funds, engaged in fraudulent fee arrangement schemes in violation of federal and state law." In re Dreyfus Mutual Funds Fee Litigation, 428 F.Supp.2d 357, 357 (W.D. Pa. 2006). Id., at 357. After the federal court granted the defense motion to dismiss all but two counts in the complaint, the defense moved for judgment on the pleadings on the two remaining counts. The federal court granted the defense motion and dismissed the class action.

The two counts that remained after the defense motion to dismiss were for breach of fiduciary duty under § 36(b) of the Investment Company Act, and a § 48(a) "control person" claim that was premised on the § 36(b) allegation. Id., at 358. The defense now argued that the § 36(b) claim must be brought derivatively "and not as a class action," and so both the § 36(b) claim and the § 48(a) claim arising from it must fail. Id. The Dreyfus Court recognized that "there are district court decisions allowing section 36(b) claims to proceed as direct actions," but concluded that "the weight of recent authority" holds that "section 36(b) claims must be brought derivatively." Id., at 359-60 (citations omitted).

The court then held that whether the class action complaint alleged direct or derivative claims turned on state law. It then examined plaintiffs' claims under Maryland law and held that they "are derivative in nature" and "[b]ecause they are derivative, the section 36(b) claims cannot be asserted as class action claims." Id., at 360. Because the § 36(b) claim fails, the court held that the § 48(a) claim falls also: "Section 48(a) does not provide an independent basis for liability." Id.

Download PDF file of In re Dreyfus Mutual Funds

Posted On: August 21, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases—Brieger v. Tellabs: District Court Denies Defense Motion To Reassign ERISA Class Action To Judge Who Handled Related PSLRA (Private Securities Litigation Reform Act) Case

Judge Refuses to Assign Related Case to Judge Who Handled Prior Cases Because of Uncertainty Created by Appeal

An employee filed a putative class action against his employer alleging a breach of fiduciary duty under ERISA in that its Profit Sharing and Savings Plan imprudently invested in the employer’s securities and published misleading information about the safety of those securities. Brieger v. Tellabs, Inc., 434 F.Supp.2d 567 (N.D. Ill. 2006). Class action defense attorneys agreed with the employee’s request that the class action be deemed “related” to two other cases against the employer. Defense attorneys then requested that the three cases be reassigned to a different judge (St. Eve) who handled a lawsuit against the employer alleging securities laws violations under PSLRA (Private Securities Litigation Reform Act). The district court denied the defense request.

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Posted On: August 20, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases-Meyers v. Texas: Defense Waives Right To Object To Federal Jurisdiction By Removing Class Action To District Court Fifth Circuit Holds

Fifth Circuit Holds that Defense Motion to Dismiss for Lack of Subject Matter Jurisdiction Should have been Denied Because State Removed Class Action to Federal Court

Disabled persons filed a putative class action against the State of Texas alleging that its fee-based parking placard program violated the federal American with Disabilities Act (ADA); the defense removed the action to federal court and then moved to dismiss the action on state sovereign immunity grounds. The district court dismissed the action for lack of subject matter jurisdiction, but the Fifth Circuit reversed and remanded. On the state’s petition for remand, the Circuit Court held that by removing the case to federal court, the defense had waived its right to object to federal court jurisdiction: “The narrow holding in the instant case is that . . . when a State removes to federal court a private state court suit based on a federal-law claim, it invokes federal jurisdiction and thus waives its unqualified right to object peremptorily to the federal district court's jurisdiction on the ground of state sovereign immunity.” Meyers v. Texas, 454 F.3d 503 (5th Cir. 2006) (citation omitted). The Fifth Circuit explained the limited nature of its holding as follows:

However, that waiver does not affect or limit the State's ability to assert whatever rights, immunities or defenses are provided for by its own sovereign immunity law to defeat the claims against the State finally and on their merits in the federal courts. In sum, Texas may assert its state sovereign immunity as defined by its own law as a defense against the plaintiffs' claims in the federal courts, but it may not use it to defeat federal jurisdiction or as a return ticket back to the state court system.

Finally, the Court noted that it was not reaching the merits of any of the issues presented by the complaint.

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Posted On: August 20, 2006 by Michael J. Hassen Email This Post

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15 U.S.C. § 1681j – Charges for Certain Disclosures: Statutory Language of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer

As a resource for class action defense attorneys who defend against actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA.

§ 1681j. Charges for certain disclosures

(a) Free Annual Disclosure

(1) Nationwide Consumer Reporting Agencies

(A) In general.

All consumer reporting agencies described in subsections (p) and (w) of section 1681a of this title shall make all disclosures pursuant to section 1681g of this title once during any 12-month period upon request of the consumer and without charge to the consumer.

(B) Centralized source.

Subparagraph (A) shall apply with respect to a consumer reporting agency described in section 1681a(p) of this title only if the request from the consumer is made using the centralized source established for such purpose in accordance with section 211(c) of the Fair and Accurate Credit Transactions Act of 2003.

(C) Nationwide Specialty Consumer Reporting Agency

(i) In general.

The Commission shall prescribe regulations applicable to each consumer reporting agency described in section 1681a(w) of this title to require the establishment of a streamlined process for consumers to request consumer reports under subparagraph (A), which shall include, at a minimum, the establishment by each such agency of a toll-free telephone number for such requests.

(ii) Considerations.

In prescribing regulations under clause (i), the Commission shall consider–

(I) the significant demands that may be placed on consumer reporting agencies in providing such consumer reports;

(II) appropriate means to ensure that consumer reporting agencies can satisfactorily meet those demands, including the efficacy of a system of staggering the availability to consumers of such consumer reports; and

(III) the ease by which consumers should be able to contact consumer reporting agencies with respect to access to such consumer reports.

(iii) Date of issuance.

The Commission shall issue the regulations required by this subparagraph in final form not later than 6 months after the date of enactment of the Fair and Accurate Credit Transactions Act of 2003.

(iv) Consideration of ability to comply.

The regulations of the Commission under this subparagraph shall establish an effective date by which each nationwide specialty consumer reporting agency (as defined in section 1681a(w) of this title) shall be required to comply with subsection (a), which effective date—

(I) shall be established after consideration of the ability of each nationwide specialty consumer reporting agency to comply with subsection (a); and

(II) shall be not later than 6 months after the date on which such regulations are issued in final form (or such additional period not to exceed 3 months, as the Commission determines appropriate).

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Posted On: August 19, 2006 by Michael J. Hassen Email This Post

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California Defense Attorneys Face Slew Of New Public Accommodation/ADA Class Action Cases

To aid California class action defense attorneys in anticipating claims against which they may have to defend, we provide weekly, unofficial summaries of the legal categories for class actions 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. Thus far, employment law cases have led the list each week since we began making these reports. This week, however, class action complaints involving public accommodation/Americans with Disabilities Act (ADA) cases lead the list. This report covers the time period from August 11 - August 17, 2006. We include only those categories that include 10% or more of the class action filings during the relevant timeframe. Approximately 39 class action lawsuits were filed in these California state and federal courts during that time period, of which 19 involved public accommodation/ADA claims (49%). The second place category consists of eight (8) new employment law class action filings (21%).

Posted On: August 19, 2006 by Michael J. Hassen Email This Post

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15 U.S.C. § 1681i – Procedure in Case of Disputed Accuracy: Statutory Language of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer

As a resource for class action defense attorneys who defend against actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. This article sets forth for the procedure to be followed if a consumer disputes the accuracy of the reported debt:

§ 1681i. Procedure in case of disputed accuracy

(a) Reinvestigations of Disputed Information

(1) Reinvestigation Required

(A) In general.

Subject to subsection (f), if the completeness or accuracy of any item of information contained in a consumer' s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.

(B) Extension of period to reinvestigate.

Except as provided in subparagraph (C), the 30-day period described in subparagraph (A) may be extended for not more than 15 additional days if the consumer reporting agency receives information from the consumer during that 30-day period that is relevant to the reinvestigation.

(C) Limitations on extension of period to reinvestigate.

Subparagraph (B) shall not apply to any reinvestigation in which, during the 30-day period described in subparagraph (A), the information that is the subject of the reinvestigation is found to be inaccurate or incomplete or the consumer reporting agency determines that the information cannot be verified.

(2) Prompt Notice of Dispute to Furnisher of Information

(A) In general.

Before the expiration of the 5-business-day period beginning on the date on which a consumer reporting agency receives notice of a dispute from any consumer or a reseller in accordance with paragraph (1), the agency shall provide notification of the dispute to any person who provided any item of information in dispute, at the address and in the manner established with the person. The notice shall include all relevant information regarding the dispute that the agency has received from the consumer or reseller.

(B) Provision of other information.

The consumer reporting agency shall promptly provide to the person who provided the information in dispute all relevant information regarding the dispute that is received by the agency from the consumer or the reseller after the period referred to in subparagraph (A) and before the end of the period referred to in paragraph (1)(A).

(3) Determination That Dispute Is Frivolous or Irrelevant

(A) In general.

Notwithstanding paragraph (1), a consumer reporting agency may terminate a reinvestigation of information disputed by a consumer under that paragraph if the agency reasonably determines that the dispute by the consumer is frivolous or irrelevant, including by reason of a failure by a consumer to provide sufficient information to investigate the disputed information.

(B) Notice of determination.

Upon making any determination in accordance with subparagraph (A) that a dispute is frivolous or irrelevant, a consumer reporting agency shall notify the consumer of such determination not later than 5 business days after making such determination, by mail or, if authorized by the consumer for that purpose, by any other means available to the agency.

(C) Contents of notice.

A notice under subparagraph (B) shall include

(i) the reasons for the determination under subparagraph (A); and

(ii) identification of any information required to investigate the disputed information, which may consist of a standardized form describing the general nature of such information.

Continue reading "15 U.S.C. § 1681i – Procedure in Case of Disputed Accuracy: Statutory Language of the FCRA (Fair Credit Reporting Act) for the Class Action Defense Lawyer" »

Posted On: August 18, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases-Saxton v. Title Max: Certification Of Federal Fair Labor Standards Act (FLSA) Class Action Denied For Failure To Demonstrate That Class Members Desired To Opt-In And That Plaintiffs Are Similarly Situated Alabama Court Holds

Defense Attorneys for Employer Successfully Defeat Plaintiff Lawyer’s Motion to Conditionally Certify Class on Grounds that Employees Failed to Meet Eleventh Circuit’s Two-Part Dybach Test

Employees filed a putative class action alleging overtime pay violations of the federal Fair Labor Standards Act (FLSA). Saxton v. Title Max of Alabama, Inc., 431 F.Supp.2d 1185 (N.D. Ala. 2006). Over defense objections, the employees sought conditional class certification and permission to send notice of the class action to class members. The lawsuit alleged that the employer’s assistant managers were systematically denied overtime pay in violation of the FLSA, id., at 1186, despite the fact that the employer “has a policy, which store managers are directed to enforce, that assistant managers are not to work over 40 hours in a week,” id., at 1188. The district court agreed with class action defense attorneys that plaintiffs failed to satisfy the two-part test enunciated in Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d 1562 (11th Cir. 1991), and therefore denied the motion.

Continue reading "Class Action Defense Cases-Saxton v. Title Max: Certification Of Federal Fair Labor Standards Act (FLSA) Class Action Denied For Failure To Demonstrate That Class Members Desired To Opt-In And That Plaintiffs Are Similarly Situated Alabama Court Holds" »

Posted On: August 17, 2006 by Michael J. Hassen Email This Post

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Verizon Class Action Defense Case: Judicial Panel On Multidistrict Litigation (MDL) Grants Defense Motion To Transfer Government Surveillance Class Actions To Northern District Of California

Verizon Defense Persuades MDL Judicial Panel that Class Actions Arising out of Governmental Surveillance of Telecommunication Activity and Verizon’s Participation or Cooperation in such Activity Would Benefit from Transfer to Northern District of California

After seventeen (17) class action lawsuits were filed in thirteen (13) federal courts against Verizon Communications, AT&T, BellSouth and certain affiliated companies arising out of the federal government’s telecommunication surveillance activities, and the defendants’ participation in, or cooperation with, that activity, Verizon’s defense attorneys moved the Judicial Panel on Multidistrict Litigation (MDL) to transfer the cases to the District Court for the District of Columbia. In re National Security Agency Telecommunications Records Litig., 444 F.Supp.2d 1332 (Jud.Pan.Mult.Lit. 2006). AT&T and BellSouth joined in Verizon’s motion. Most responding parties agreed to centralization for pretrial purposes but suggested transfer to the Northern District of California. The Judicial Panel noted, however, “Some parties oppose[d] transfer because they view their actions to be more narrowly drawn (such as with respect to breadth of defendants, nature of alleged improper conduct, range of legal theories, or type of relief sought) then other MDL-1791 actions, and they thus seek to avoid entanglement in a litigation which they deem to be broader in scope.” Id., at 1334.

The Judicial Panel granted the defense motion, explaining that pretrial coordination “does not require a complete identity or even majority of common factual issues as a prerequisite to transfer.” Id., at 1334. The Panel also found compelling the federal government’s claim that centralization would address security concerns arising out of the highly classified nature of the information at issue in the litigation. Id. The Panel decided, however, to transfer the cases to the Northern District of California, in part because the first action was filed in that court and the judge was “well versed in the issues presented by the litigation.” Id., at 1335.

Download PDF file of In re National Security Agency Transfer Order

Posted On: August 17, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases-Richards v. Delta Air Lines: Denial Of Class Certification Proper Because Lawsuit Predominantly Sought Monetary Damages And Did Not Involve Common Questions Of Law Or Fact D.C. Circuit Holds

Circuit Court Affirms Dismissal of Putative Class Action Against Airline that Alleged Warsaw Convention did not Limit Liability for Lost or Damaged Baggage Because Action did not Satisfy Rule 23(b)(2) or Rule 23(b)(3)

Following the loss of a single piece of luggage on an international flight, plaintiff filed a putative class action against the airline alleging that she was entitled to the fair market value of the luggage and its contents, not the “maximum reimbursement” amount Delta calculated was due under the Warsaw Convention (now superseded). Richards v. Delta Air Line, Inc., 453 F.3d 525, 526 (D.C. Cir. 2006). In essence, the complaint alleged that because Delta did not “as a matter of practice” record the weight of the luggage on passenger luggage tickets, the defense could not rely upon the Warsaw Convention. Id., at 526-27. Plaintiff’s lawyer moved for class certification under Rule 23(b)(2), and later alternatively sought class certification under Rule 23(b)(3). Id., at 527-28. But while the district court found that the requirements of Rule 23(a) had been met, it refused to certify a class because the requirements of Rule 23(b)(2) or (b)(3) had not been met. With respect to Rule 23(b)(2), the court held that class certification “is not appropriate where plaintiff’s claims are predominantly monetary relief,” and found further that the class action complaint essentially sought payment of monetary damages despite the fact that it sought a declaratory judgment. Id., at 528. And with respect to Rule 23(b)(3), the district court held that Delta’s “accord and satisfaction” defense would require “the application of varying state laws and a case-by-case factual inquiry,” thereby defeating a claim that common questions of law or fact predominate. Id. Reviewing the judgment “for abuse of discretion or legal error,” id., at 530, the D.C. Circuit affirmed.

Continue reading "Class Action Defense Cases-Richards v. Delta Air Lines: Denial Of Class Certification Proper Because Lawsuit Predominantly Sought Monetary Damages And Did Not Involve Common Questions Of Law Or Fact D.C. Circuit Holds" »

Posted On: August 16, 2006 by Michael J. Hassen Email This Post

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Murray v. New Cingular Wireless-Class Action Defense Issues: Promotional Offer For Wireless Service Was "Firm Offer" Under Federal Fair Credit Reporting Act (FCRA) Illinois District Court Holds

Federal District Court Grants Defense Motion for Summary Judgment and Dismisses Putative Class Action Alleging Violations of FCRA (Fair Credit Reporting Act) Holding that Promotional Offer was a "Firm Offer of Credit" and that Failure to Provide "Clear and Conspicuous" Disclosure was not Willful

A putative class action was filed against New Cingular Wireless for alleged violations of the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq., by accessing credit reports before sending promotional offers for wireless telephone services. Murray v. New Cingular Wireless Services, Inc., 432 F.Supp.2d 788, 789 (N.D. Ill. 2006). The class action defense argued that it obtained consumer credit reports for permissible purposes within the meaning of the FCRA. Specifically, defense attorneys maintained that Cingular used the reports pursuant to § 1681b to make a "firm offer of credit" - defined by FCRA as "any offer of credit or insurance to a consumer that will be honored if the consumer is determined, based on information in a consumer report on the consumer, to meet the specific criteria used to select the consumer for the offer," 15 U.S.C. § 1681a(1) - and that any deficiencies with respect to the required disclosures were inadvertent.

The facts underlying the lawsuit were as follows. In 2004, Cingular sent plaintiff a promotional offer for a free wireless phone with the following disclosure: "You were selected to receive this special offer because you satisfied certain credit criteria for creditworthiness, which we have previously established. We used information obtained from a consumer-reporting agency.... You have the right to prohibit information contained in your credit files with this and any other consumer-reporting agency from being used with any credit transaction that is not initiated by you ..." Murray, at 789-90. Plaintiff filed a putative class action in federal court alleging that the promotion violated the FCRA. First, he argued that the promotion was not an "offer of credit" but simply an offer for a free phone, and that the word "credit" was never used in the promotion. Id., at 791. The court disagreed, explaining "wireless customers pay for services after the actual use of the services. By definition, such a payment scheme puts Cingular at risk that the customer could default on payment-which is essentially what credit is all about." Id. (citation omitted). As the court explained at page 791,

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Posted On: August 16, 2006 by Michael J. Hassen Email This Post

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AOL Class Action Defense Case-Simpson v. AOL: Defense Motion To Dismiss Class Action Securities Claims Against Securities Issuer’s Business Partners Properly Granted Ninth Circuit Holds

Class Action Securities Fraud Claims Against Business Partners of Internet Company Failed to Establish § 10(b) Liability for Secondary Actors

Plaintiff filed a putative class action against multiple defendants alleging securities fraud arising out of the overstating of revenues of an Internet company. Defense attorneys for several outside defendants and individual defendants successfully moved to dismiss the § 10(b) claims under the Securities Exchange Act of 1934 on the grounds that Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994) holds that § 10(b) does not permit recovery for aiding and abetting, and that the moving defendants were not “primary violators.” Simpson v. AOL Time Warner Inc., 452 F.3d 1040, 1042 (9th Cir. 2006). The Ninth Circuit disagreed with the interpretation of Central Bank proffered by the defense, but affirmed because plaintiff had not sufficiently alleged that defendants were primary violators of § 10(b). Id., at 1043. We do not here summarize the detailed fact pattern set forth in the Ninth Circuit opinion. Rather, we focus on the court’s holdings concerning Central Bank and § 10(b) liability.

Defense attorneys argued that “Central Bank limited primary liability under § 10(b) to defendants who personally made a public misstatement, violated a duty to disclose or engaged in manipulative trading activity, and not to those engaged in a broader scheme to defraud.” Simpson, at 1043. The Ninth Circuit disagreed. While the Supreme Court held that Rule 10b-5 liability “does not extend beyond the limits of § 10(b),” id., at 1046, it also cautioned “that secondary actors, other than the securities issuer, may be liable as primary violators under § 10(b) when all elements of the statute are satisfied,” id., at 1047. And while § 10(b) does not extend to the act of “merely ‘aiding and abetting’” a violation thereof, under Ninth Circuit authority one may be found to have primary liability under § 10(b) - even without making any statements - if they substantially participated or were intricately involved in preparing the fraudulent statements. Id., at 1048 (citing Howard v. Everex Sys., Inc., 228 F.3d 1057, 1061 n.5 (9th Cir. 2000).

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Posted On: August 15, 2006 by Michael J. Hassen Email This Post

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Muhammad v. County Bank-Class Action Defense Cases: FAA (Federal Arbitration Act) Governed Arbitration Clause Forbidding Class Actions Unconscionable New Jersey Supreme Court Holds

New Jersey Supreme Court Holds that Provision in Arbitration Agreement Prohibiting Class Actions is Unconscionable but Severable so that Plaintiff may Pursue Class-Wide Arbitration

A part-time college student filed a class action against a lender for alleged violations of New Jersey consumer-fraud statutes; the defense moved to compel arbitration of plaintiff’s individual claim based on a class-action bar in an arbitration agreement. Muhammad v. County Bank of Rehoboth Beach, Delaware, ___ A.2d ___, 2006 WL 2273448 (N.J. August 9, 2006). The student had received a short-term unsecured loan in the amount of $200 on May 23, 2003, which she promised to repay, together with a “finance charge” of $60, on June 13, 2003. This meant that the annual percentage rate of the loan was 608.33%. Slip Opn., at 4. She extended the loan twice; each extension required an agreement to pay a $60 finance charge. Unable to pay the loan, plaintiff filed a class action against the lender. Id., at 8.

The loan application signed by plaintiff contained an arbitration clause requiring that any dispute be arbitrated, and that barred “bring[ing], join[ing] or participat[ing] in any class action,” Slip Opn., at 5-6. Plaintiff also executed a “Loan Note and Disclosure” form that reiterated the prohibition against class actions. Id., at 6-7. The defense moved to compel arbitration; the trial court granted the motion and the appellate court affirmed. Id., at 9-10. The New Jersey Supreme Court addressed “whether a provision in an arbitration agreement that is part of a consumer contract of adhesion is unconscionable and therefore unenforceable because it forbids class-wide arbitration.” Slip Opn., at 2-3.

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Posted On: August 14, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases-Eufaula Drugs v. Tmesys: Defense Removal Of Class Action Improper Because CAFA (Class Action Fairness Act of 2005) Inapplicable And Insufficient Amount In Controversy Alabama Federal Court Holds

Federal Court Remands Putative Class Action Over Defense Objection Because at Least One Member of Class Must Satisfy Jurisdictional Requirement for Damages and Because Under Alabama State Law Class Action was Commenced Prior to CAFA Even Though Summons Issued After CAFA's Effective Date

Issues regarding removal and remand, and regarding federal court jurisdiction under the Class Action Fairness Action of 2005 (CAFA), have been covered in several separate articles. On May 22, 2006, an Alabama federal court remanded to state court a putative class action over defense claims that the court had either diversity jurisdiction or jurisdiction under CAFA. Eufaula Drugs, Inc. v. Tmesys, Inc., 432 F.Supp.2d 1240 (M.D. Ala. 2006). Plaintiff filed the putative class action on February 14, 2005 - four days before the effective date of CAFA - but the summons was not issued until February 28 because plaintiff's lawyer "did not file the summons or a completed certified mail card or provide the appropriate postage to the state court clerk's office until then." Id., at 1242. Defense attorneys removed the action to federal court. The defense urged that federal diversity jurisdiction existed and, alternatively, that the action was removable under CAFA. Id., at 1243.

The federal court rejected both arguments. As to diversity jurisdiction, while the district court agreed that the parties were diverse, Eufaula Drugs, at 1243 n.4, "at least one class representative or named plaintiff must meet the amount-in-controversy requirement before supplemental jurisdiction can arise," id., at 1244 (citing Exxon Mobil Corp. v. Allapattah Servs., Inc., ___ U.S. ___, 125 S.Ct. 2611, 2615 (2005)). As to CAFA, the court recognized that "commencement" for purposes of CAFA turned on state law, id., at 1245-46. and under its analysis of Alabama state law, on the particular facts of the case, the action would be deemed "commenced" as of the date the complaint was filed and accordingly remanded the action to state court, id., at 1246-50.

Download PDF file of Eufaula Drugs v. Tmesys

Posted On: August 13, 2006 by Michael J. Hassen Email This Post

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Class Action ADA Claims Tie Employment Law Class Action Cases In California Weekly Filings

California class action defense attorneys will face a substantial number of new class action claims based on last weeks latest court filings. To allow the class action defense lawyer to anticipate claims against which she or he may have to defend, we provide weekly, unofficial summaries of the legal categories for class actions 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. This report covers the time period from August 4 - August 10, 2006, and while labor law cases once again head up the list, an equal number of ADA (Americans with Disabilities Act) cases were filed. We include only those categories that include 10% or more of the class action filings during the relevant timeframe. Approximately 53 class action lawsuits were filed in these California state and federal courts during that time period, of which 12 involved employment law claims (23%). At least seven (7) of the labor law class action filings allege unpaid overtime (58% of the employment law class action filings and 13% overall). But class action claims under the Americans with Disabilities Act (ADA) tied for first place, also with 12 new lawsuits (23%). The third place category consists of five (5) fair debt collection practices lawsuits brought under state and/or federal law.

Posted On: August 13, 2006 by Michael J. Hassen Email This Post

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15 U.S.C. § 1681h – Conditions and Form of Disclosure to Consumers: Statutory Language for the Defense Lawyer of Class Action Lawsuits Under the FCRA (Fair Credit Reporting Act)

As a resource for attorneys defending against class actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FDCPA. This article sets forth for the statutory provisions concerning the conditions and form of disclosures to consumers:

§ 1681h. Conditions and form of disclosure to consumers

(a) In General

(1) Proper identification.

A consumer reporting agency shall require, as a condition of making the disclosures required under section 1681g of this title, that the consumer furnish proper identification.

(2) Disclosure in writing.

Except as provided in subsection (b), the disclosures required to be made under section 1681g of this title shall be provided under that section in writing.

(b) Other Forms of Disclosure

(1) In general.

If authorized by a consumer, a consumer reporting agency may make the disclosures required under 1681g of this title

(A) other than in writing; and

(B) in such form as may be

(i) specified by the consumer in accordance with paragraph (2); and

(ii) available from the agency.

(2) Form.

A consumer may specify pursuant to paragraph (1) that disclosures under section 1681g of this title shall be made

(A) in person, upon the appearance of the consumer at the place of business of the consumer reporting agency where disclosures are regularly provided, during normal business hours, and on reasonable notice;

(B) by telephone, if the consumer has made a written request for disclosure by telephone;

(C) by electronic means, if available from the agency; or

(D) by any other reasonable means that is available from the agency.

Continue reading "15 U.S.C. § 1681h – Conditions and Form of Disclosure to Consumers: Statutory Language for the Defense Lawyer of Class Action Lawsuits Under the FCRA (Fair Credit Reporting Act)" »

Posted On: August 12, 2006 by Michael J. Hassen Email This Post

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15 U.S.C. §§ 1681f and 1681g – Disclosures to Governmental Agencies/Disclosures to Consumers: Statutory Language for the Class Action Defense Lawyer of Class Action Lawsuits Under the FCRA (Fair Credit Reporting Act)

We continue today with the posting of the statutory provisions of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., as a resource for class action defense attorneys. The starkest contrast in Congressional treatment in the FCRA is evident from the statutory provisions concerning disclosures to governmental agencies (which consumes a single sentence) and disclosures to consumers (which consume several pages). Those provisions are contained in Sections 1681f and 1681g, respectively, set forth below:

§ 1681f. Disclosures to governmental agencies

Notwithstanding the provisions of section 1681b of this title, a consumer reporting agency may furnish identifying information respecting any consumer, limited to his name, address, former addresses, places of employment, or former places of employment, to a governmental agency.

§ 1681g. Disclosures to consumers

(a) Information on file; sources; report recipients.

Every consumer reporting agency shall, upon request, and subject to 1681h(a)(1) of this title, clearly and accurately disclose to the consumer:

(1) All information in the consumer' s file at the time of the request except that–

(A) if the consumer to whom the file relates requests that the first 5 digits of the social security number (or similar identification number) of the consumer not be included in the disclosure and the consumer reporting agency has received appropriate proof of the identity of the requester, the consumer reporting agency shall so truncate such number in such disclosure; and

(B) nothing in this paragraph shall be construed to require a consumer reporting agency to disclose to a consumer any information concerning credit scores or any other risk scores or predictors relating to the consumer.

(2) The sources of the information; except that the sources of information acquired solely for use in preparing an investigative consumer report and actually use for no other purpose need not be disclosed: Provided, That in the event an action is brought under this title, such sources shall be available to the plaintiff under appropriate discovery procedures in the court in which the action is brought.

(3) (A) Identification of each person (including each end-user identified under section 1681e(e)(1) of this title) that procured a consumer report

(i) for employment purposes, during the 2-year period preceding the date on which the request is made; or

(ii) for any other purpose, during the 1-year period preceding the date on which the request is made.

(B) An identification of a person under subparagraph (A) shall include

(i) the name of the person or, if applicable, the trade name (written in full) under which such person conducts business; and

(ii) upon request of the consumer, the address and telephone number of the person.

(C) Subparagraph (A) does not apply if–

(i) the end user is an agency or department of the United States Government that procures the report from the person for purposes of determining the eligibility of the consumer to whom the report relates to receive access or continued access to classified information (as defined in section 1681b(b)(4)(E)(i) of this title); and

(ii) the head of the agency or department makes a written finding as prescribed under section 1681b(b)(4)(A) of this title.

(4) The dates, original payees, and amounts of any checks upon which is based any adverse characterization of the consumer, included in the file at the time of the disclosure.

(5) A record of all inquiries received by the agency during the 1-year period preceding the request that identified the consumer in connection with a credit or insurance transaction that was not initiated by the consumer.

(6) If the consumer requests the credit file and not the credit score, a statement that the consumer may request and obtain a credit score.

Continue reading "15 U.S.C. §§ 1681f and 1681g – Disclosures to Governmental Agencies/Disclosures to Consumers: Statutory Language for the Class Action Defense Lawyer of Class Action Lawsuits Under the FCRA (Fair Credit Reporting Act)" »

Posted On: August 11, 2006 by Michael J. Hassen Email This Post

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Federal Appeals Court Upholds IBM Defense To Class Action Judgment Against IBM Pension Plan

In a prior article, we summarized the Seventh Circuit opinion in Cooper v. IBM Personal Pension Plan and IBM Corp., ___ F.3d ___ (7th Cir. August 7, 2006). In Cooper, a district court entered judgment in favor of class action plaintiffs, concluding that IBM's pension plan violated ERISA's prohibition against age discrimination, but the Circuit Court agreed with defense attorneys that the plan was not age discriminatory and reversed. Mary Williams Walsh of the New York Times has written an excellent summary of Cooper without the minutia of the statutory language at issue. Ms. Walsh's article, entitled “Court Rules For I.B.M. On Pension,” may be found in Section C. of the August 8, 2006 edition of the New York Times.

Posted On: August 11, 2006 by Michael J. Hassen Email This Post

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Beuster v. Equifax-Class Action Defense Issues: Federal Fair Credit Reporting Act (FCRA) Does Not Preempt State Law Defamation Claim Maryland District Court Holds

Federal District Court Adopts "Statutory" Approach to Determining FCRA Preemption and Denies Defense Motion to Dismiss Consumer's Common Law Defamation Claim on Grounds of FCRA Preemption

In Beuster v. Equifax Information Serv., 435 F.Supp.2d 471, 2006 WL 1669790 (D. Md. 2006), a Maryland federal court rejected a defense motion to dismiss a defamation claim against a lender on the grounds that it was preempted by the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq. A consumer, Hans Beuster, failed to qualify for a loan to refinance his home because of a derogatory report in his credit history concerning a credit card account with Bank One. The report stated that Beuster's owed more than $10,000 on his Bank One account and that it had been sent to collection; Beuster disputed the item, insisting that he never applied for or received the credit card in question. In January 2005, in response to his inquiry, Bank One told Beuster that it was unable to find his credit card application. Nonetheless, when Beuster contacted consumer reporting agency Experian to dispute the derogatory report, Experian responded in February 2005 that the information had been verified by Bank One. In March, Beuster sent letters to consumer reporting agencies Experian, Equifax and Trans Union - enclosing an affidavit and a police report - disputing the derogatory information. This time, Experian agreed to remove the account information from Beuster's credit report; Equifax and Trans Union, however, responded that Bank One had verified the derogatory item and so they would continue to reflect it in their reports. Slip Opn., at 1-3.

Beuster filed suit in federal court against Bank One, Equifax and Trans Union: as to Bank One, Beuster alleged an FCRA violation and a claim for common law defamation. Slip Opn., at 3. The defense moved to dismiss the defamation claim on the grounds that section 1681t(b)(1)(F) "is a total bar to any state statutory or common law causes of action." Id., at 6-7. The district court disagreed.

Continue reading "Beuster v. Equifax-Class Action Defense Issues: Federal Fair Credit Reporting Act (FCRA) Does Not Preempt State Law Defamation Claim Maryland District Court Holds" »

Posted On: August 10, 2006 by Michael J. Hassen Email This Post

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IBM Class Action Defense Case-Cooper v. IBM: Defense Prevails On Appeal From Class Action Judgment On Employees' ERISA Claims Alleging Age Discrimination In Pension Plan Due To Time Value Of Money

In Case Of First Impression of Cash-Balance Pension Plans Under ERISA § 204(b)(1)(H)(i), Seventh Circuit Agrees with Defense that Time Value of Money is not Age Discrimination and Reverses Judgment in Favor of Class Action Plaintiffs

Older employees filed a class action against IBM alleging that its cash-balance defined-benefit pension plan violates the federal Employee Retirement Income Security Act (ERISA) prohibition against age discrimination. Cooper v. IBM Personal Pension Plan and IBM Corp., ___ F.3d ___ (7th Cir. August 7, 2006). Unlike a defined-contribution plan, "the personal account in a cash-balance plan is not separately funded"; rather, "IBM imputes value to the account in the form of 'credits.'" Slip Opn., at 1. The district court rejected defense arguments that the plan did not violate ERISA because its terms are age-neutral, and entered judgment in favor of the class action plaintiffs because "younger employees receive interest credits for more years." Id., at 2. The district court's decision turned on its interpretation of the phrase "benefit accrual" under ERISA § 204(b)(1)(H)(i), which is not defined in ERISA or its regulations. Id., at 4. The district court used the definition of "accrued benefit" under ERISA, which is "an amount' expressed in the form of an annual benefit commencing at normal retirement age.'" Id. In so doing, "the rule against discrimination then refers not to what IBM puts into the plan, but what the employee takes out on retirement" and thus discriminates against older employees because younger workers will receive a greater payout because they benefit from compound interest. Id. "This approach treats the time value of money as age discrimination." Id., at 4.

Continue reading "IBM Class Action Defense Case-Cooper v. IBM: Defense Prevails On Appeal From Class Action Judgment On Employees' ERISA Claims Alleging Age Discrimination In Pension Plan Due To Time Value Of Money" »

Posted On: August 10, 2006 by Michael J. Hassen Email This Post

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Federal Court Sua Sponte Removes Milberg Weiss From Steering Committee Of Class Action Transferred To Minnesota District Court By Multidistrict Litigation (MDL) Panel—Class Action Defense Issues

Federal Court Holds Lawyer’s Failure to Disclose Investigation and Duty Court Owes Transferee Plaintiffs Requires Removal from Plaintiffs’ Steering Committee and Notice to, and Consent of, Lawyer’s Individual Clients

Product liability actions – filed against Medtronic, Inc., concerning its implantable defibrillator – were transferred to a Minnesota federal court by the Multidistrict Litigation (MDL) Panel. Mitchell Breit, a partner in the New York office of Milberg Weiss Bershad & Schulman, was selected to serve on the Plaintiffs’ Steering Committee. Following the indictment of Milberg Weiss, the district court judge sua sponte initiated a telephone conference to discuss Breit’s continued involvement on the committee. In re Medtronic, Inc. Implantable Defibrillator Prod. Liab. Litig., 434 F.Supp.2d 729 (D. Minn. 2006). Lead counsel and Breit requested that he be allowed to continue to serve; the court rejected their pleas “finding that it is in the best interest of the transferee plaintiffs that Mr. Breit and the Milberg Weiss firm be severed from the service” on the committee. Id., at 730.

The federal court reasoned a transferee judge “bears a particularly heavy burden to protect the transferee plaintiffs,” in addition to and separate from the duty attorneys owe their clients. Further, in selecting attorneys to serve on the steering committee, the Court directly investigated the ethics of every lawyer who offered to serve on it: “It asked each attorney seeking appointment to the [steering committee] to submit a letter touching his/her own ethics, and the ethical competence of his/her firm or professional association.” Id., at 730. The court noted with dissatisfaction that Briet’s December 2005 submittal failed to disclose the criminal investigation of the Milberg Weiss firm or its partners, and said nothing of the potential criminal charges until the federal criminal indictment issued. Id. Breit’s May 30, 2005 letter to the Court – sent in response to the Court’s sua sponte inquiry – failed to explain why the criminal investigation “was never disclosed to this Court until the indictment was handed up.” Id., at 731. The district court found this unacceptable, explaining at page 731:

Continue reading "Federal Court Sua Sponte Removes Milberg Weiss From Steering Committee Of Class Action Transferred To Minnesota District Court By Multidistrict Litigation (MDL) Panel—Class Action Defense Issues" »

Posted On: August 10, 2006 by Michael J. Hassen Email This Post

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American Express Class Action Defense Case-Slayton v. American Express: Second Circuit Adopts De Novo Review Of Relation Back Rulings Under FRCP Rule 15 In Vacating Judgment In Favor Of Class Action Defense

District Court Granted Defense Motion to Dismiss Securities Fraud Class Action Lawsuit, Seeking Damages Under § 10(b) and § 20(a) of the Securities Exchange Act of 1934 and Common Law Fraud, but Second Circuit Reversed

A class action securities fraud lawsuit was filed against American Express and its subsidiaries, and against individual corporate officers of those companies (“Amex”), arising from high-risk junk bond investments and allegedly false statements concerning the profitability of those investments. Plaintiffs’ lawyer filed an amended class action complaint adding two causes of action; defense attorneys moved to dismiss the new claims as time-barred and the original claims on the merits. The district court granted the defense motion, finding that the new claims did not “relate back” to the filing of the original complaint, and that the original claims failed on the merits because plaintiffs had not adequately pleaded the requisite scienter. The Second Circuit reversed and remanded. Slayton v. American Express Co., 460 F.3d 215 (2d Cir. 2006).

Continue reading "American Express Class Action Defense Case-Slayton v. American Express: Second Circuit Adopts De Novo Review Of Relation Back Rulings Under FRCP Rule 15 In Vacating Judgment In Favor Of Class Action Defense" »

Posted On: August 9, 2006 by Michael J. Hassen Email This Post

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Skirchak v. Dynamics Research-Class Action Defense Cases: Employer's Dispute Resolution Program Barring Class Action Claims For Alleged Violations Of Federal Fair Labor Standards Act (FLSA) Unconscionable Massachusetts District Court Holds

Federal District Court Refuses Defense Motion to Dismiss Class Action and Enforce Arbitration Agreement Holding FAA (Federal Arbitration Act) Provision Barring Class Action FLSA Claims Unconscionable Under Specific Facts of Case

Employees filed a putative class action alleging violations of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., for failure to pay overtime. The defense filed a motion to dismiss the class action complaint and to enforce a enforce the company's "dispute resolution program" governed by the Federal Arbitration Act (FAA) which, in part, barred class actions. Skirchak v. Dynamics Research Corp., Inc., 432 F.Supp.2d 175 (D. Mass. 2006). (This class action defense has been raised in other cases discussed in separate articles.) The district court denied the defense motion, applying the well-settled rule that FAA agreements are subject to the standard defenses available in contract actions, including fraud, duress and unconscionability. Skirchak, at 178 (citing Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652 (1996)).

The court first addressed the language of FLSA itself, and acknowledged that Congress did not expressly guarantee the right to file class actions for FLSA claims. Skirchak, at 179 (citing Kuehner v. Dickinson & Co., 84 F.3d 316, 319-20 (9th Cir.1996)). But the court believed that the fact FLSA provides for collective actions, see 29 U.S.C. § 216, meant that Congress "implicitly" intended to allow such class actions, Skirchak, at 179.

Continue reading "Skirchak v. Dynamics Research-Class Action Defense Cases: Employer's Dispute Resolution Program Barring Class Action Claims For Alleged Violations Of Federal Fair Labor Standards Act (FLSA) Unconscionable Massachusetts District Court Holds" »

Posted On: August 8, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases-Wang v. Chinese Daily News: Class Action Reporters Owed Overtime Under Federal FLSA And Defense Vacation "Buy Back" Policy Violated State Law And Required Payment At Employees' Hourly Rate Of Pay California Court Holds

Federal District Court Rejects Defense to Class Action Claims Under Fair Labor Standards Act (FLSA) and State Law Claims, and Grants Summary Judgment in Favor of Class

News reporters filed in California federal court a class action against their employer that alleged numerous violations of federal and state labor laws, as well as California Business and Professions Code §§ 17200 et seq. (unfair competition). Wang v. Chinese Daily News, Inc., ___ F.Supp.2d ___, 2006 WL 1663638 (C.D. Cal. June 7, 2006). The parties filed cross-motions for summary judgment; the court denied the defense motion and granted the plaintiffs' motion. In so doing, the court inter alia rejected the defense argument that the reporters were exempt under the FLSA's "creative professional exemption," and ruled against the defense on the applicable statute of limitations governing California Labor Code § 226.7 claims (meal and rest periods). The opinion is quite detailed; this article discusses only some of the court's holdings.

The employer had a policy that allowed vacation time to accrue and to carryover into following years, provided that "accumulated vacation days cannot exceed 30 days" and that "[m]oney shall be paid for unused vacation days exceeding 30 days at $64 per day " Slip Opn., at 3. California law permits employers to adopt "no additional accrual" policies, so the question before the federal court was whether $64 per day was lawful or whether the employer was required to "buy back" the vacation time at the employees' hourly rate of pay. The court concluded that this question turned on whether the "unused vacation days" should be deemed "vested" or "accrued." Id., at 4. The court suggested that if the employer had followed its vacation policy then it would have been lawful; however, the evidence before the court established that employees routinely accrued upwards of 70 days of vacation and held that the in "actual practice," then, the employer treated the vacation time as "accrued." Id., at 5. Accordingly, the employer was required to buy back the vacation days at the employees' hourly rate of pay. Id., at 6.

Continue reading "Class Action Defense Cases-Wang v. Chinese Daily News: Class Action Reporters Owed Overtime Under Federal FLSA And Defense Vacation "Buy Back" Policy Violated State Law And Required Payment At Employees' Hourly Rate Of Pay California Court Holds" »

Posted On: August 7, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Cases-Smith v. Superior Court: Employee Is "Discharged" Under California Labor Laws Not Only By Involuntary Termination But also By Completion Of Specific Assignment

California Supreme Court Rejects Class Action Defense Argument that Employees were not Discharged by Completion of Job Assignment for Which They were Hired

A class action was filed on behalf of models that worked specific projects but were not paid immediately after the projects ended. Defense attorneys argued that the employees were not “discharged” within the meaning of California Labor Code § 201 because they were not fired or otherwise involuntarily terminated. Smith v. Superior Court, 39 Cal.4th 77, 45 Cal.Rptr.3d 394 (Cal. July 10, 2006). Plaintiff was hired as a “hair model” – an audience watched a stylist color and style her hair, she walked the runway, and she remained until defendant told her that she could leave. Plaintiff was to be paid $500, but defendant waited more than two months to pay her the money owed. Plaintiff filed a class action complaint alleging various causes of action, including violations of California Labor Code §§ 201 and 203. Slip Opn., at 2.

Section 201 of the Labor Code provides that if an employer “discharges” an employee, wages earned and unpaid at the time of discharge are due and payable immediately. Under section 203, an employer’s willful failure to pay wages to a “discharged” employee in accordance with section 203 subjects the employer to penalties. Slip Opn., at 1.

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Posted On: August 6, 2006 by Michael J. Hassen Email This Post

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15 U.S.C. § 1681e – Compliance Procedures: Statutory Language for the Defense Lawyer of Class Action Lawsuits Under the FCRA (Fair Credit Reporting Act)

As a resource for class action defense attorneys defending against class actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FDCPA. This article sets forth for the compliance procedures of the FCRA:

§ 1681e. Compliance procedures

(a) Identity and purposes of credit users.

Every consumer reporting agency shall maintain reasonable procedures designed to avoid violations of section 1681c of this title and to limit the furnishing of consumer reports to the purposes listed under section 1681b of this title. These procedures shall require that prospective users of the information identify themselves, certify the purposes for which the information is sought, and certify that the information will be used for no other purpose. Every consumer reporting agency shall make a reasonable effort to verify the identity of a new prospective user and the uses certified by such prospective user prior to furnishing such user a consumer report. No consumer reporting agency may furnish a consumer report to any person if it has reasonable grounds for believing that the consumer report will not be used for a purpose listed in section 1681b of this title.

(b) Accuracy of report.

Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.

(c) Disclosure of consumer reports by users allowed.

A consumer reporting agency may not prohibit a user of a consumer report furnished by the agency on a consumer from disclosing the contents of the report to the consumer, if adverse action against the consumer has been taken by the user based in whole or in part on the report.

(d) Notice to Users and Furnishers of Information

(1) Notice requirement.

A consumer reporting agency shall provide to any person

(A) who regularly and in the ordinary course of business furnishes information to the agency with respect to any consumer; or

(B) to whom a consumer report is provided by the agency;

a notice of such person' s responsibilities under this title.

(2) Content of notice.

The Federal Trade Commission shall prescribe the content of notices under paragraph (1), and a consumer reporting agency shall be in compliance with this subsection if it provides a notice under paragraph (1) that is substantially similar to the Federal Trade Commission prescription under this paragraph.

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Posted On: August 5, 2006 by Michael J. Hassen Email This Post

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Employment Law Class Action Cases Again Lead California Weekly Filings

Employment Law Class Action Cases Again Lead California Weekly Filings

To aid California class action defense attorneys in anticipating claims against which they may have to defend, we provide weekly, unofficial summaries of the legal categories for class actions 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. Employment law cases once again head up the list. This report covers the time period from July 28 - August 3, 2006. We include only those categories that include 10% or more of the class action filings during the relevant timeframe. Approximately 35 class action lawsuits were filed in these California state and federal courts during that time period, of which 10 involved employment law claims (29%). The second place category consists of five (5) new antitrust class action filings (14%), all of which involve the British Airways case. The third group consists of four (4) securities laws class actions (11%).

Posted On: August 5, 2006 by Michael J. Hassen Email This Post

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15 U.S.C. § 1681d – Disclosure of Investigative Consumer Reports: Statutory Language for the Class Action Defense Lawyer of Provisions of the FCRA (Fair Credit Reporting Act)

Class action defense lawyers defending against claims under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., may benefit from ready access to the text of the FCRA, as we provide the statutory provisions as a benefit to class action counsel.

§ 1681d. Disclosure of investigative consumer reports

(a) Disclosure of fact of preparation.

A person may not procure or cause to be prepared an investigative consumer report on any consumer unless

(1) it is clearly and accurately disclosed to the consumer that an investigative consumer report including information as to his character, general reputation, personal characteristics and mode of living, whichever are applicable, may be made, and such disclosure

(A) is made in a writing mailed, or otherwise delivered, to the consumer, not later than three days after the date on which the report was first requested, and

(B) includes a statement informing the consumer of his right to request the additional disclosures provided for under subsection (b) of this section and the written summary of the rights of the consumer prepared pursuant to section 1681g(c) of this title; and

(2) the person certifies or has certified to the consumer reporting agency that

(A) the person has made the disclosures to the consumer required by paragraph (1); and

(B) the person will comply with subsection (b).

(b) Disclosure on request of nature and scope of investigation.

Any person who procures or causes to be prepared an investigative consumer report on any consumer shall, upon written request made by the consumer within a reasonable period of time after the receipt by him of the disclosure required by subsection (a)(1) of this section, make a complete and accurate disclosure of the nature and scope of the investigation requested. This disclosure shall be made in a writing mailed, or otherwise delivered, to the consumer not later than five days after the date on which the request for such disclosure was received from the consumer or such report was first requested, whichever is the later.

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Posted On: August 4, 2006 by Michael J. Hassen Email This Post

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Merck Defense Wins Another Individual Vioxx Case, Further Strengthening Its Defense Position Against Class Action Lawsuits

Merck's defense team has prevailed in another Vioxx case, this one in California, adding further support to Merck's claims that class action treatment of these cases would be inappropriate. Merck also must present a defense against a class action lawsuit brought by insurers that alleges Merck defrauded them. Alex Berenson of the New York Times reports today that Merck's aggressive stance and early successes have resulted in the voluntary dismissal of more than 300 federal lawsuits against the company, as plaintiffs' attorneys reevaluate the upside of pursuing weak claims, though that still leaves pending roughly 14,000 such lawsuits. The class action defense notes the case-specific nature of each claim; as Berenson explains, "plaintiffs in Vioxx cases are usually older and have other risk factors for heart disease," which makes it more difficult for the plaintiff's lawyer to establish the causal connection between the drug and the plaintiff's injury. Berenson also notes that several more cases are scheduled to go to trial this year, so it is still "far too early to declare a winner in the litigation."

Mr. Berenson's article, entitled "Legal Stance May Pay Off For Merck," may be found in the August 4, 2006 edition of the New York Times.

Posted On: August 4, 2006 by Michael J. Hassen Email This Post

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Class Action Defense Issues-Barnette v. Brook Road: 2003 Amendment to Federal Fair Credit Reporting Act (FCRA) Did Not Eliminate All Private Rights Of Action Under § 1681m But Only Those Under § 1681m(h) Virginia District Court Holds

Federal District Court Holds Use of Word "Section" Instead of "Subsection" in FCRA (Fair Credit Reporting Act) § 1681m(h)(8) was a Drafting Error and Denies Defense Motion for Judgment on the Pleadings

The federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq., enacted in 1970, has been described by courts as both "comprehensive" and "complex." In part, it sets forth statutory requirements governing the use of consumer reports. See 15 U.S.C. § 1681m. In 2003, Congress amended the FCRA by enacting the Fair and Accurate Credit Transactions Act (FACTA). The amendments included adding subsection (h) to § 1681m, which provides: Section 1681m(h)(8) states that no civil actions may be filed for "any failure by any person to comply with this section" (italics added); rather, such violations "shall be enforced exclusively under section 1681s" (italics added), which provides for administrative enforcement of FCRA violations.

Following a so-called "yo-yo" car sale, the consumer/purchaser filed suit in federal court against Brook Road, Inc. alleging violations of various state and federal laws, as well as common law causes of action. Barnette v. Brook Road, Inc., 429 F.Supp.2d 741 (D. Va. 2006). The complaint included an FCRA claim under § 1681m(a) and (b), based on the allegation that the lender had obtained and relied on her credit report, and had engaged in an "adverse action" in reliance on the report, but had failed to provide her with the required notice of the adverse action. Id., at 745. The defense moved for judgment on the pleadings on the grounds that FACTA eliminated private rights of action for all violations of § 1681m; the consumer argued that the use of the word "section" in § 1681m(h)(8) was a typographical error, and that Congress intended to bar private rights of action only for alleged violations of subsection (h). Id., at 746.

Continue reading "Class Action Defense Issues-Barnette v. Brook Road: 2003 Amendment to Federal Fair Credit Reporting Act (FCRA) Did Not Eliminate All Private Rights Of Action Under § 1681m But Only Those Under § 1681m(h) Virginia District Court Holds" »

Posted On: August 3, 2006 by Michael J. Hassen Email This Post

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15 U.S.C. § 1681c-2 – Block of Information Resulting from Identity Theft: Statutory Language for the Defense Lawyer of Class Action Lawsuits Under the FCRA (Fair Credit Reporting Act)

As a resource for attorneys defending against class actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. This article sets forth additional provisions concerning identity theft:

§ 1681c-2. Block of information resulting from identity theft

(a) Block.

Except as otherwise provided in this section, a consumer reporting agency shall block the reporting of any information in the file of a consumer that the consumer identifies as information that resulted from an alleged identity theft, not later than 4 business days after the date of receipt by such agency of–

(1) appropriate proof of the identity of the consumer;

(2) a copy of an identity theft report;

(3) the identification of such information by the consumer; and

(4) a statement by the consumer that the information is not information relating to any transaction by the consumer.

(b) Notification.

A consumer reporting agency shall promptly notify the furnisher of information identified by the consumer under subsection (a) –

(1) that the information may be a result of identity theft;

(2) that an identity theft report has been filed;

(3) that a block has been requested under this section; and

(4) of the effective dates of the block.

(c) Authority to Decline or Rescind

(1) In general.

A consumer reporting agency may decline to block, or may rescind any block, of information relating to a consumer under this section, if the consumer reporting agency reasonably determines that–

(A) the information was blocked in error or a block was requested by the consumer in error;

(B) the information was blocked, or a block was requested by the consumer, on the basis of a material misrepresentation of fact by the consumer relevant to the request to block; or

(C) the consumer obtained possession of goods, services, or money as a result of the blocked transaction or transactions.

(2) Notification to consumer.

If a block of information is declined or rescinded under this subsection, the affected consumer shall be notified promptly, in the same manner as consumers are notified of the reinsertion of information under section 1681i(a)(5)(B) of this title.

(3) Significance of block.

For purposes of this subsection, if a consumer reporting agency rescinds a block, the presence of information in the file of a consumer prior to the blocking of such information is not evidence of whether the consumer knew or should have known that the consumer obtained possession of any goods, services, or money as a result of the block.

Continue reading "15 U.S.C. § 1681c-2 – Block of Information Resulting from Identity Theft: Statutory Language for the Defense Lawyer of Class Action Lawsuits Under the FCRA (Fair Credit Reporting Act)" »

Posted On: August 3, 2006 by Michael J. Hassen Email This Post

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Centuori v. Experian-FCRA Class Action Defense Cases: Consumer Reporting Agency May Be Liable Under Federal Fair Credit Reporting Agency (FCRA) For Failing To Ensure Public Defender Sought Consumer Report For Permissible Purpose Arizona Court Hold

Federal District Court Denies Defense Motion to Dismiss FCRA Claims Against Consumer Reporting Agency Because a Jury Could Find that it Acted Recklessly in Allowing Public Defender's Investigator to Access Consumer's Credit Report Even Though Reasons Given were Facially Valid

A consumer filed suit against credit reporting agencies for violating the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq., after a public defender's office twice requested and received a credit report for the consumer, an alleged eyewitness to a crime, "in an attempt to impeach his credibility on the theory that his poor credit history created a financial motive to testify against the criminal defendant." Centuori v. Experian Information Solutions, Inc., 431 F.Supp.2d 1002 (D. Ariz. 2006). The investigator from the public defender's office gained access to the credit report through a written agreement with Merchants Information Solutions (MIS), which in turn had access to Experian's consumer records through an agreement whereby MIS promised to ensure that MIS's customers utilized Experian's records only for lawful purposes and in compliance with all state and federal laws. In 1998, the public defender's office had executed a "Permissible Purpose Certificate" for MIS "which listed the permissible and impermissible purposes of access a credit history under the FCRA." Id., at 1004-05 (footnote omitted).

In 2001, Experian allowed MIS customers direct access to its database via the Internet, thereby saving Experian's millions of dollars. Experian's internal policies required that access requests be "properly validated and authorized before access is provided." Centuori, at 1005. Experian's policies also generally disallowed access to records by private investigators and attorneys (save for attorneys involved in debt collection) "because of a 'high risk' that they would access credit reports for impermissible purposes"; nonetheless, Experian accepted an application from the "Chief Criminal Investigator" of the "Pima County Public Defender," and provided him with a user ID and password. Id. The access underlying the lawsuit consisted of two requests by the investigator for "collection purposes" and "government fee for service" - both of which are "facially proper purposes under the FCRA," id., at 1006, though the true purpose is noted above, id., at 1007-08.

Continue reading "Centuori v. Experian-FCRA Class Action Defense Cases: Consumer Reporting Agency May Be Liable Under Federal Fair Credit Reporting Agency (FCRA) For Failing To Ensure Public Defender Sought Consumer Report For Permissible Purpose Arizona Court Hold" »

Posted On: August 2, 2006 by Michael J. Hassen Email This Post

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Beneficial Mortgage TILA Class Action Defense Case: By Joining Class Action Settlement Homeowners Released Any Federal Truth In Lending Act (TILA) Claims Against Lender Virginia Court Holds

Federal District Court Grants Defense Motion to Dismiss TILA Claims Against Lender Upholding Releases Signed by Plaintiffs and Distinguishing Case from Others that Held TILA Releases Void

Two homeowners filed suit against a lender seeking rescission and statutory damages for its alleged failure to make disclosures required under the federal Truth in Lending Act (TILA), 15 U.S.C. §§ 1601 et seq. Tucker v. Beneficial Mortgage Co., ___ F.Supp.2d ___, 2006 WL 1975769 (E.D. Va. 2006). Defense attorneys moved to dismiss the complaint on the grounds that plaintiffs were bound by a class action settlement negotiated by the Virginia Attorney General, and that the action was brought outside TILA's one-year limitations period. The district court agreed with the defense, specifically holding that plaintiffs released their TILA claims as part of the class action settlement, and that "[p]laintiffs may waive their rights to bring TILA claims in a class action lawsuit." Slip Opn., at 2.

Briefly, plaintiffs refinanced their home with Beneficial Mortgage in September 2002 - three months before the Virginia Attorney General negotiated a settlement of a consumer class action lawsuit against the lender. Plaintiffs affirmatively joined the settlement and in October 2003 signed a general release absolving Beneficial of liability for "all civil claims . . . whether known or unknown." Slip Opn., at 3-4 (citation omitted). In September 2004, plaintiffs sought to rescind their Beneficial loan on the grounds that Beneficial "failed to make certain material TILA and Home Ownership and Equity Protection Act ('HOEPA') disclosures regarding the loan, including finance charges, the amount financed, and the annual percentage rate." Id., at 4. Plaintiffs then filed suit in October 2005, alleging that these failures extended their right to rescind the transaction to three years. Id. The district court disagreed.

Continue reading "Beneficial Mortgage TILA Class Action Defense Case: By Joining Class Action Settlement Homeowners Released Any Federal Truth In Lending Act (TILA) Claims Against Lender Virginia Court Holds" »

Posted On: August 1, 2006 by Michael J. Hassen Email This Post

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Levine v. World Financial-FCRA Class Action Defense Cases: Facially Valid Request for Consumer Credit Report Does Not Relieve Consumer Reporting Agency Of Duty To Evaluate Permissible Purpose Of Request Pursuant To Federal FCRA (Fair Credit Reporting Act

Federal District Court Order Granting Defense Motion to Dismiss FCRA Action Against Consumer Reporting Agency Reversed

A consumer (Stephen Levine) opened a store credit card account with a clothing retailer (Structure) through its financial affiliate (World Financial National Network Bank) that the consumer closed in 1998. Credit reports at a consumer reporting agency (Experian Information Solutions) showed that the account had been paid in full and closed. Nonetheless, in 2002 Structure requested credit reports on Levine from Experian, stating that it needed them for purposes of "account review." Structure had not reported Experian with any new information on Levine's account during the preceding four years, and Levine had not made any inquiries to Experian or Structure concerning his closed account. Experian provided copies of Levine's credit report to Structure in May 2002 and in August 2002. Levine sued Experian and Structure for violating the federal Fair Credit Reporting Act (FCRA). 15 U.S.C. §§ 1681 et seq. Experian's defense attorneys moved to dismiss the complaint. The district court granted the motion on two grounds: (1) "FCRA does not suggest that a credit report may only be permissibly obtained for account review during particular points in the parties' relationship" and "Experian had not duty to investigate a facially valid request for a consumer report," and (2) Levine failed to adequately allege damage. Levine v. World Financial Network Nat'l Bank, 437 F.3d 1118, 1119-20 (11th Cir. 2006). The Eleventh Circuit reversed.

Continue reading "Levine v. World Financial-FCRA Class Action Defense Cases: Facially Valid Request for Consumer Credit Report Does Not Relieve Consumer Reporting Agency Of Duty To Evaluate Permissible Purpose Of Request Pursuant To Federal FCRA (Fair Credit Reporting Act" »