CLASS ACTION DEFENSE BLOG OFF FOR NEW YEARS
The author of the Class Action Defense Blog is taking the day off for the New Year holiday. A new class action article will be published on Friday, January 2.
The author of the Class Action Defense Blog is taking the day off for the New Year holiday. A new class action article will be published on Friday, January 2.
Class Action Plaintiff Alleging Violations of Fair Labor Standards Act (FLSA) Entitled to Summary Judgment because Employers Improperly took “Tip Credits” Against Employee Wages and Failed to Pay Overtime Required by FLSA Texas Federal Court Holds
Plaintiff filed a class action against his former employers – TDS Entertainment (which owns Dixie's Country Bar), Chicago Bar and Vankar Enterprises (which owns Babcock Bar) – alleging violations of the federal Fair Labor Standards Act (FLSA); the class action complaint asserted that defendants failed to pay employees minimum wage because they unlawfully credited tips against their employees’ salaries. Bernal v. Vankar Enterprises, Inc., 579 F.Supp.2d 804, 805 (W.D.Tex. 2008). Specifically, the class action alleged that plaintiff worked at defendants' bars for less than the federal minimum wage, that plaintiff received tips from customers, and that defendants required that plaintiff contribute a portion of his tips to a “tip pool” to be shared with “managers and/or other employees who do not customarily and regularly receive tips.” Id., at 805-06. The class action alleged that defendants were not permitted to take “tip credits” against plaintiff’s minimum, and so violated the FLSA by paying him less than minimum wage. Id., at 806. The class action complaint prayed to recover as wages the difference between the federal minimum wage and the actual wage paid by defendants., id. The district court granted plaintiff’s motion for class action certification, id. Plaintiff’s counsel then moved for summary judgment as to “(1) whether the bars failed to pay the applicable minimum wage under circumstances in which the bars were not permitted to claim a tip credit; and (2) whether the bars failed to pay overtime as required by the FLSA.” Id. The federal court granted the motion.
The district court explained that “[t] he primary issue before the Court is whether a genuine issue of material fact exists regarding Defendants' entitlement to use the amount of tips its employees received in satisfaction of a portion of Defendants' minimum wage obligations.” Bernal, at 806. After summarizing the well-known standards governing summary judgment motions, see id., at 806-07, the court discussed the FLSA’s authorization, under “limited circumstances,” to pay a “tipped employee” less than the federal minimum wage, id., at 807. A “tipped employee” – defined as an employee who customarily receives more than $30 per month in tips, see 29 U.S.C. § 203(t), may be paid less than minimum wage (but no less than $2.13 per hour) “if the amount of the tips the employee actually receives, added to the hourly wage the employer pays, is at least equal to the minimum wage in effect,” a practice known as “taking a ‘tip credit.’” Bernal, at 807. The district court explained, however, that “An employer may not…take a tip credit ‘with respect to any tipped employee unless such employee has been informed by the employer of the [tip credit] provisions’” and that “no tip credit may be taken ‘with respect to any tipped employee unless ... all tips received by such employee have been retained by the employee,’ except in cases in which tips are pooled ‘among employees who customarily and regularly receive tips.’” Id. (citations omitted).
Class Action Complaint’s Anti-Cybersquatting Protection Act Claims do not Warrant Class Action Treatment because Rule 23(b)(3)’s Predominance Requirement for Class Action Certification not Met due to Individualized Issues Surrounding Trademarks or Personal Names Illinois Federal Court Holds
Plaintiffs filed a class action against Google and others alleging “a wide-ranging scheme whereby they receive ‘billions of dollars in ill-gotten advertising and marketing revenue’ by knowingly and intentionally registering, licensing and monetizing purportedly deceptive domain names at the expense of the plaintiff-mark owners.” Vulcan Golf, LLC v. Google Inc., ___ F.Supp.2d ___ (N.D.Ill. December 18, 2008) [Slip Opn., at 1]. In part, the class action alleged that Google’s conduct violated the Anti-Cybersquatting Protection Act (ACPA), id. Plaintiffs filed a motion for class action certification, id.; defense attorneys countered that class action treatment was not warranted because plaintiffs’ claims are not typical and because they are not adequate class representatives, see id., at 4, and because the predominance and superiority tests of Rule 23(b)(3) had not been met, see id., at 7. The district court rejected the first defense challenges, finding the requirements for class action certification under Rule 23(a) were satisfied. However, the district court concluded that Rule 23(b)(3)’s requirements for class action treatment had not been met. Accordingly, the court refused to certify the litigation as a class action.
With respect to the requirements for class action certification set forth in Rule 23(a), the district court easily found that numerosity and commonality had been satisfied. Vulcan Golf, at 4-5. Defense attorneys argued that plaintiffs’ claims were atypical and that they were not adequate class representatives “because intra-class conflicts exist.” Id., at 5. For reasons we do not detail here, the district court rejected the defense arguments and found that each of Rule 23(a)’s requirements for class action treatment had been met. See id., at 5-7. In sum, the federal court explained at page 7, “The representatives’ claims arise from the same course of conduct as the other class members and the class representatives have the same interests and have suffered the same injury as the putative class members.” It turned, therefore, to whether the class action requirements of Rule 23(b)(3) had been met.
Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Unopposed by Class Action Plaintiffs, and Transfers Actions to Southern District of New York
Six class actions – three in California, and one each in Kansas, Missouri and New York – were filed against Time Warner and Time Warner Cable, and others, alleging violations of the Sherman Antitrust Act. In re Set-Top Cable Television Box Antitrust Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. December 8, 2008) [Slip Opn., at 1]. Defense attorneys filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Southern District of New York; plaintiffs in two of the California class actions and plaintiffs in the Kansas, Missouri and New York class action all supported the motion, but argued that the class actions should be centralized in the District of Kansas. Id. The Judicial Panel granted the motion to centralize the class action lawsuits because “All actions allege that Time Warner improperly tied and bundled the lease of cable boxes to the ability to obtain premium cable services in violation of Section 1 of the Sherman Antitrust Act.” Id. The Panel also agreed with defense attorneys that the Southern District of New York would best serve as the appropriate transferee court, because “Time Warner is headquartered there, and relevant documents and witnesses will likely be located in that district.” Id. Accordingly, the Judicial Panel ordered all of the class actions transferred to the Southern District of New York, id., at 2.Download PDF file of In re Set-Top Cable Television Box Antitrust Litigation Transfer Order
The author of the Class Action Defense Blog wishes all of you a very happy holiday season. A new class action article will be published tomorrow.
The author of the Class Action Defense Blog is taking the day off for the Christmas holiday. A new class action article will be published on Friday, December 26.
District Court Independently Analyzes Class Action Certification Requirements of ERISA Class Action Complaint, despite Lack of Defense Objection to Class Action Treatment, and Concludes Class Action Certification Warranted Texas Federal Court Holds
Plaintiffs, retirees of BellSouth Corporation, a subsidiary of AT & T, filed a class action against AT&T and BellSouth alleging violations of the he Employee Retirement Income Security Act of 1974 (ERISA); specifically, the class action complaint alleged “that (1) a benefit known as telephone concession, which was provided to certain employees of BellSouth after retirement, constitutes a defined benefit pension plan under ERISA (hereinafter, ‘plan claims’); and (2) that Defendants violated ERISA in administering and maintaining the telephone concession plan (hereinafter, ‘benefit claims’).” Boos v. AT&T, Inc., 252 F.R.D. 319, 321 (W.D. Tex. 2008). Plaintiffs’ lawyers filed a motion with the district court to certify the litigation as a class action. Id. Defense attorneys did not oppose plaintiffs’ motion for class action treatment; nonetheless, the district court conducted a thorough analysis of the propriety of class action certification under Rule 23 because Rule 23(c)(1)(A) requires that the district court “determine by order whether to certify the action as a class action.” Id. The federal court further observed at page 321 that “[t]he Fifth Circuit has also held that in order to certify a class, a district court must specifically find that the proposed class satisfies the requirements of Rule 23.” (citing Vizena v. Union Pac. R.R. Co., 360 F.3d 496, 503 (5th Cir. 2004)). Based on its detailed analysis, see id., at 321-26, the district court concluded that the requirements for class action certification had been satisfied and therefore granted plaintiffs’ motion. Id., at 326-27.
NOTE: We discuss this case only to make the point that Rule 23 requires a district court to independently determine whether class action treatment is warranted, whether the defendant objects or whether the parties stipulate to class action certification as part of a settlement agreement.Download PDF file of Boos v. AT&T
Class Action Claims Alleging DuPont knew but Failed to Disclose Health Risks Associated with use of Non-Stick Cookware Coatings (including Teflon) not Entitled to Class Action Treatment because Class Definition Failed and Membership in Proposed Class could not be Objectively Established Iowa Federal Court Holds
Thirteen class action lawsuits were filed against E.I. DuPont De Nemours concerning its production and marketing of Teflon non-stick cookware coatings; specifically, the class action complaints alleged that “DuPont made false, misleading and deceptive representations regarding the safety of its product.” In re Teflon Products Liab. Litig., ___ F.Supp.2d ___ (S.D. Iowa December 5, 2008) [Slip Opn., at 1]. In essence, the class action plaintiffs asserted that the non-stick coatings “can decompose at temperatures within the realm of ‘normal use,’ potentially releasing a synthetic chemical” that is harmful to humans and could even cause birth defects. Id., at 2. Ultimately, the Environmental Protection Agency brought claims against DuPont under the Federal Toxic Substances Control Act, which DuPont settled in 2005 by paying “‘the largest civil administrative penalty [the] EPA has ever obtained under any federal environmental statute.’” Id., at 2-3. The Judicial Panel on Multidistrict Litigation centralized the class actions in the Southern District of Iowa pursuant to 28 U.S.C. § 1407, see id., at 1 n.2. According to the allegations underlying the class action, DuPont knew of these dangers prior to 1960, but failed to disclose them to consumers, id., at 3. Plaintiffs’ attorneys moved the district court to certify the litigation as a class action. Id. Defense attorneys argued against class action treatment, id., at 1. The district court determined that class action treatment was warranted and therefore granted plaintiffs’ class action certification motion.
After outlining the rules governing class action certification under Rule 23, see In re Teflon, at 5-7, the district court observed that there are two additional “implicit” requirements: “1) that the class definition is drafted to ensure that membership is ‘capable of ascertainment under some objective standard;’ and 2) that all class representatives are in fact members of the proposed class,” id., at 7 (citations omitted). The federal court began its analysis, then, with the definition of the class, which it noted “is at the heart of any decision” on class action treatment, id., at 8. Because several putative class representatives testified in deposition that they were uncertain whether the products they purchased in fact had been manufactured by DuPont, or that they mistakenly believed that all non-stick cookware coatings were manufactured by DuPont, the district court concluded that the class definition failed. See id., at 8-14. Additionally, the court could not conclude “that each proposed representative is in fact a member of the proposed class, or…sub-class” because “the vast majority of plaintiffs must rely on memory to establish crucial facts [which] will prevent the parties and the Court from ever being able to establish membership with objective certainty.” Id., at 14. Accordingly, it held that it “cannot in good conscience grant certification.” Id.
To assist class action defense attorneys anticipate the types of cases against which they will have to defend in California state and federal courts, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits filed in the state and federal courts located in Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. We include only those categories that include 10% or more of the class action filings during the preceding week. This report covers the period from December 12 - 18, 2008, during which time 43 new class action lawsuits were filed. Class action lawsuits alleging employment-related claims generally top the list of the new class action filings by a wide margin. This past week did not disappoint. During this reporting period, 22 new labor law class action lawsuits were filed, representing 51% of the total number of new class actions filed. The only other category to meet the 10% threshold involved class actions alleging violations of California's Unfair Competition Law (UCL), which include false advertising claims, with 8 new filings (19%).
California State Law does not Require Testing Accommodations for Reading-Related Learning Disabilities so Class Action Against Association of American Medical Colleges for Failing to Afford Accommodations, other than those Required by Federal Americans with Disabilities Act (ADA), Fails California State Court Holds
Plaintiffs, individuals with reading-related learning disabilities who applied to take the MCAT in California, filed a putative class action against the Association of American Medical Colleges (AAMC) for violations of California’s Unruh Civil Rights Act and Disabled Persons Act; specifically, the class action complaint alleged that plaintiffs “requested more time and/or a private room in which to take the test,” but that the AAMC denied the requests, thus failing to afford them accommodations for reading-related disabilities. Turner v. Ass’n of American Medical Colleges, 167 Cal.App.4th 1401, ___ Cal.Rptr.3d ___, 97-98 (Cal.App. 2008). The Association of American Medical Colleges (AAMC) is a nonprofit organization that, among other things, develops and administers the Medical College Admission Test (MCAT) in an effort to “predict success during medical school.” Id., at 97. Because the MCAT is timed, the AAMC gives reasonable accommodations to individuals with reading disabilities “such as additional time to complete the examination or a separate room to minimize distractions.” Id. The AAMC also “flags” such tests “to alert medical schools that the score should carry less weight relative to other factors in the admissions process.” Id. In the end, however, the accommodations made by the AAMC are “designed to level the playing field, not to give those individuals an advantage.” Id. The AAMC reviews accommodation requests under the federal Americans with Disabilities Act (ADA), which requires that one seeking such accommodation demonstrate “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Id., at 98 (citation omitted). “This case presents the question of whether persons taking such tests in California are additionally entitled to accommodations under the State's Unruh Civil Rights Act and Disabled Persons Act.” Id., at 97. The trial court, following a bench trial, ruled against the AAMC, and awarded plaintiffs’ counsel $2 million in fees, id., at 98-99. The Court of Appeal reversed, holding that California state law does not require testing accommodations for reading-related disabilities.
We do not discuss the appellate court opinion in detail. In brief, the Court of Appeal held: (1) that the Unruh Act “does not require the alteration of standardized testing conditions to accommodate applicants with learning and reading-related disabilities,” see Turner, at 100-03, and (2) that California’s Disabled Persons Act “guarantees access to public places but does not require a modification of standardized testing procedures to accommodate learning and reading-related disabilities,” see id., at 103-04. The appellate court concluded at page 104, “Individuals with learning and reading-related disabilities affecting their ability to rapidly process written information are entitled to reasonable accommodations when taking the MCAT, assuming they suffer from an impairment that ‘substantially limits’ the major life activities of reading and/or test-taking within the meaning of the ADA.” However, “AAMC is not required to utilize the more inclusive standard for assessing disabilities under the Unruh Act and DPA.” Id. Accordingly, it reversed the judgment of the trial court, id., at 105.Download PDF file of Turner v. Association of American Medical Colleges
U.S. Supreme Court Affirms First Circuit Decision Reinstating Class Action Against Tobacco Companies Holding District Court Erred in Dismissing Class Action Challenging Advertising of “Light” and “Low Tar” Cigarettes as Expressly Preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA)
Plaintiffs filed a class action against Philip Morris and its parent, Altria, for violations of Maine’s Unfair Trade Practices Act; specifically, the class action complaint alleged that defendants’ design, marketing and sale of “light” and “low tar” cigarettes “fraudulently conveyed the message that their ‘light’ cigarettes deliver less tar and nicotine to consumers than regular brands despite [defendants’] knowledge that the message was untrue.” Altria Group, Inc. v. Good, ___ U.S. ___, 2008 WL 5204477, *2 (December 15, 2008). Defense attorneys insisted that the advertisements were factually accurate, but moved for summary judgment on the ground that the claims in the class action complaint were preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA), id. The district court agreed the dismissed the class action, but the First Circuit reversed, concluding that the class action claims were not preempted. See Good v. Altria Group, Inc., 501 F.3d 29 (1st Cir. 2007). The First Circuit’s decision conflicted with a decision out of the Fifth Circuit, which held that state-law challenges to the use of “light” and “low tar” descriptors was expressly preempted by the FCLAA. See Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383 (5th Cir. 2007). The Supreme Court granted certiorari in Good to resolve this conflict. 2008 WL 5204477, *3
The class action plaintiffs alleged that they had smoked for 15 years, and the class action allegations did not contest that under the “Cambridge Filter Method” test conducted using a machine that “smokes” cigarettes and collects tar and nicotine for weighing, less tar and nicotine is in fact drawn into the filter using “light” or “low tar” cigarettes. Altria Group, at *2 and n.2. The heart of the class action complaint, rather, was the allegation smokers unconsciously engage in behavior that negates the benefits sought to be achieved by the cigarette filter design “[b]y covering filter ventilation holes with their lips or fingers, taking larger or more frequent puffs, and holding the smoke in their lungs for a longer period of time.” Id., at *2. The class action further alleged that defendants knew of this compensation effect yet marketed “light” cigarettes with an intent to deceive smokers into believing that the cigarettes “would pose fewer health risks.” Id. Defense attorneys moved for summary judgment on the grounds, inter alia, that the FCLAA expressly preempted the class action claims, id. In granting the defense motion, the district court likened the class action claims to a “failure to warn” claim, akin to the claim found to be preempted in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). Id. The First Circuit reversed, holding that the class action instead presented “in substance a fraud claim that alleges that [defendants] falsely represented their cigarettes as ‘light’ or having ‘lowered tar and nicotine’ even though they deliver to smokers the same quantities of those components as do regular cigarettes.” Id., at *3 (citing 501 F.3d at 36). The First Circuit analyzed the controlling authority – the plurality opinion in Cipollone – and concluded that a claim is not preempted merely because it is grounded on the advertising or promotion of cigarettes with FCLAA-compliant labels, or because it arises out of the adverse health consequences of such cigarettes. See 501 F.3d at 36-43.
The American Conference Institute is sponsoring its 8th Annual Conference on Consumer Finance Class Actions & Litigation. The conference will be held at the Affinia Manhattan Hotel in New York on January 27 and 28, 2009, and will feature an impressive panel of speakers. Details on the conference and its topics may be found at www.americanconference.com/CFCA or by calling (888) 224-2480. An early registration discount of $400 is available until December 31 by entering the code "649DX15".
Also, ACI is sponsoring a conference on Managing Complex Litigation, which will be held at the Helmsley Park Lane in New York on February 25 and 26, 2009, and features a faculty of 25 in-house counsel as well as a distinguished panel of outside counsel litigators. Details on the conference and its topics may be found by calling (888) 224-2480. Please note there is a discounted registration fee for in-house counsel of $1395.
These conferences promise to be well worthwhile for class action defense attorneys.
Class Action Complaint Alleging Computer Problems Systematically Caused Sprint to Pay Employees Less than they were Due Warranted Class Action Treatment as Common Issues – Centered on Sprint’s Computer System – Predominated Class Action Claims Kansas Federal Court Holds
Plaintiffs filed a class action against Sprint Nextel Corporation and Sprint/United Management (collectively “Sprint”) alleging labor law violations; the class action complaint asserted that a computer error caused Sprint to systematically fail to properly calculate commissions due employees of Sprint’s Business Direct Channel. Harlow v. Sprint Nextel Corp., ___ F.Supp.2d ___ (D.Kan. December 10, 2008) [Slip Opn., at 1-2]. According to the allegations underlying the class action, these computer problems resulted in Sprint employees receiving each month $500-$1000 less than the amounts they were due, id., at 2. The class action centered, then, on a “problem with Sprint’s computer system that affects the amount of commissions the class members received.” Id. Originally, the class action complaint alleged causes of action for violations of Kansas’s Wage Payment Act, breach of contract, quantum meruit, promissory estoppels and unjust enrichment, but the parties stipulated to the dismissal of all claims except the Wage Payment Act and breach of contract class action claims. Id., at 4-5. Plaintiffs’ attorneys moved the district court to certify the litigation as a class action; defense attorneys argued against class action treatment. Id., at 1. The district court determined that class action treatment was warranted and therefore granted plaintiffs’ class action certification motion.
In ruling on the class action certification motion, the federal court stressed that the class action “centers on Sprint’s computerized procedures for calculating and paying commissions and not, for example, [on] a policy-based decision by Sprint to award a particular commission to one employee over another.” Harlow, at 5. The district court stressed that “[t]his distinction is key to the certification analysis.” Id. As the district court had little difficulty in finding that the requirements for class action certification under Rule 23(a) had been met, see id., at 13-17 (discussing numerosity, commonality, typicality, and adequacy of representation), we focus here – like the court – on the class action requirements set forth in Rule 23(b)(3). And in that regard, the federal court had little difficulty in determining that a class action is a superior means of resolving the issues presented in the complaint, rejecting Sprint’s objection that “a class action of this magnitude would be unmanageable because of the individualized inquiries to each plaintiffs’ claims” because the individual questions involved damage calculations. See id., at 11-13.
FDCPA Class Action Complaint Warranted Class Action Treatment because Plaintiff Satisfied Requirements for Rule 23(b)(3) Class Illinois Federal Court Holds
Plaintiff filed a class action against Revenue Production Management, Inc., a debt collection agency, alleging violations of the federal Fair Debt Collection Practices Act (FDCPA); the class action complaint asserted “that Defendant had a policy and practice of violating Section 1692e of the FDCPA by: (1) sending [debt collection letters] after the expiration of the 30-day validation period outlined in the initial communication; (2) informing the consumer that the debt must be disputed in writing after expiration of the 30-day validation period outlined in the initial communication; and (3) informing the consumer that a dispute must be made within 30 days of the initial communication, after the expiration of the 30-day validation period outlined in the initial communication.” Quiroz v. Revenue Production Management, Inc., 252 F.R.D. 438, 440 (N.D. Ill. 2008). Plaintiff’s lawyers filed a motion with the district court to certify the litigation as a class action. Id. The district court concluded that class action treatment was warranted and granted plaintiff’s motion.
Plaintiff incurred debts in connection with medical treatment he received, but “[he] did not pay the debt because he believed it was covered by his employer's workers' compensation insurance.” Quiroz, at 440. After plaintiff defaulted on the obligation, it was assigned to defendant who sent plaintiff an initial debt collection letter on April 17, 2007. Id. It was not until June 6, 2007, however, that defendant sent a letter to plaintiff advising him that “[i]f you dispute the validity of this debt then you must notify us in writing within 30 (thirty) days of our initial notice to you.” Id. Plaintiff’s class action certification motion asserted that a Rule 23(b)(3) class action should be certified, id., at 440-41.
Class Action Seeking Statutory Damages on behalf of all Applicants could not Survive Defense Motion for Summary Judgment because Class Action Representatives Suffered no Injury and Legislature did not Intend to Permit Unaffected Individuals to Recover Statutory Damages California State Court Holds
Plaintiffs filed a class action against Starbucks alleging violations of California labor law provisions concerning information collected from prospective employees during the application process; specifically, the class action complaint asserted that Starbucks improperly asked applicants “about prior marijuana convictions that are more than two years old.” Starbucks v. Superior Court, 168 Cal.App.4th 1436 (Cal.App. 2008) [Slip Opn., at 2]. According to the class action, “Starbucks uses the same two-page job application form nationwide for store level employees” and that one of the questions asked is, “Have you been convicted of a crime in the last seven (7) years?” Id. The application makes clear that “arrests are not convictions,” and advises that a conviction “will not necessarily disqualify you for employment.” Id. The class action sought statutory damages in the amount of $200 per applicant – “a remedy which, by Starbucks’ estimation, could total a whopping $26 million.” Id. The trial court granted plaintiffs’ motion for class action treatment, certifying a class of approximately 135,000 applicants. Id. The trial court certified the class action on behalf of all applicants who completed a questionnaire with the convictions question and who sought no more than $200 in damages, id., at 5. In the trial court’s words, “The mere offering of the application containing the impermissible question is a violation of the Labor Code. [¶] Damages may be calculated simply by multiplying the probable number of applicants during the class period times $200.00.” Id. Defense attorneys moved for summary judgment of the class action claims, asserting in part that class members suffered no damage. Id., at 2. The trial court denied the motion, and defense attorneys sought extraordinary relief from the Court of Appeal, id. The California Court of Appeal reversed, concluding that “[n]othing in the statutes in question authorizes job applicants to automatically recover $200 per person without proof they were aggrieved persons with an injury the statute was designed to remedy,” and ordered the trial court to enter judgment in favor of Starbucks.
The thrust of the class action was that California prohibits employers “from asking about marijuana-related convictions that are more than two years old.” Starbucks, at 4. The class action further argued that California law permits applicants “to recover actual damages or $200 each, whichever is greater.” Id. (citations omitted). The appellate court observed, however, that Starbucks disclosed on the reverse side of the application that California applicants need not disclose marijuana-related convictions that are more than two years old, stating in full: “CALIFORNIA APPLICANTS ONLY: Applicant may omit any convictions for the possession of marijuana (except for convictions for the possessions of marijuana on school grounds or possession of concentrated cannabis) that are more than two (2) years old, and any information concerning a referral to, and participation in, any pretrial or post trial diversion program.” Id., at 2-3. Notably, each of the named plaintiffs had read the disclaimer on the reverse of the Starbucks application and each understood that they were not required to disclose any marijuana convictions that were more than two years old; moreover, none of the named plaintiffs had been arrested for or convicted of a marijuana-related crime. Id., at 4-5. The Court of Appeal summarized at page 2, “Plaintiffs’ lawsuit suffers from two fundamental flaws, either of which provides ample grounds for writ relief. First, Starbucks attempted to disclaim an interest in such prohibited information, and two of the plaintiffs understood Starbucks not to be seeking it. Second, no plaintiff had any marijuana-related convictions to reveal.”
As a resource for California class action defense attorneys, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. We include only those categories that include 10% or more of the class action filings during the preceding week. This report covers the period from December 5 - 11, 2008, during which time only 31 new class action lawsuits were filed. Labor law class actions generally top the list of the new class action filings by a wide margin, and this again proved true. During this reporting period, 15 new labor law class action lawsuits were filed, representing a relatively low 48% of the total number of new class actions filed during that time period. The only other categories to meet the 10% threshold involved class actions alleging violations of California's Unfair Competition Law (UCL), which include false advertising claims, with 5 new filings (16%), and class actions alleging violations of federal securities laws, with 3 new class actions (10%).
Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Unopposed by Class Action Plaintiffs, but Transfers Class Actions to Eastern District of Wisconsin
Eight class actions – one in New Jersey and one in Pennsylvania – were filed against common defendants Velocity Express Corp., Velocity Express, Inc., and Velocity Express Leasing, Inc. (collectively “Velocity Express”), and others, alleging labor law violations; specifically, the class action complaints alleged that defendants misclassified package delivery drivers as independent contractors rather than as employees. In re Velocity Express, Inc., Wage & Hour Employment Practices Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. October 8, 2008) [Slip Opn., at 1]. The several class action complaints had been filed in seven district courts – two in the Central District of California, and one each in the Northern District of California, the District of Connecticut, the Southern District of Florida, the Western District of New York, the Western District of North Carolina, and the Eastern District of Wisconsin. Id. Defense attorneys for Velocity Express filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Northern District of California or, alternatively, in the Southern District of Texas. Id. Plaintiffs in the three California class actions supported centralization but argued that the Central District of California was the transferee district. Id. Plaintiffs in each of the other five class actions, as well as the lone potential tag-along class action, also supported pretrial coordination but argued for the Eastern District of Wisconsin as the appropriate transferee district. Id.
The Judicial Panel granted the motion to centralize the class action lawsuits: The court recognized that “While it is possible there are certain regional differences in the application of work rules, whatever differences exist do not negate the many common factual issues. On balance, centralization under Section 1407 will eliminate duplicative discovery; prevent inconsistent pretrial rulings, especially with respect to class certification; and conserve the resources of the parties, their counsel and the judiciary.” In re Velocity Express, at 1. The Panel rejected the defense requests for transfer to either California or Texas, agreeing instead with those class action plaintiffs that argued for the Eastern District of Wisconsin as the transferee court. Id. The Judicial Panel reasoned, “Given the geographic dispersal of pending actions, as well as the nationwide business of Velocity Express, no particular district or region emerges as the focal point for this litigation. We are persuaded that the Eastern District of Wisconsin is an appropriate transferee forum for this litigation. It is a centrally located district with the time and resources to devote to this litigation.” Id. Accordingly, the Panel ordered all class actions pending outside of Wisconsin transferred to that district, id., at 2.Download PDF file of In re Velocity Express Transfer Order
Approval of Class Action Settlement of Labor Law Class Action must be Vacated and Remanded because Trial Court Lacked Sufficient Evidence to Determine Reasonableness of Proposed Class Action Settlement and because Objector (Plaintiff in a Separate Class Action) Wrongfully Denied Discovery Regarding Class Action Settlement California State Court Holds
Plaintiff filed a class action against Foot Locker alleging violations of California’s Labor Code; the class action complaint asserted that defendant failed to reimburse employees for expenses related to mandatory uniforms as required by California law. Kullar v. Foot Locker Retail, Inc., ___ Cal.App.4th ___ (Cal.App. November 7, 2008) [Slip Opn., at 2]. The class action complaint later was amended to include allegations concerning security checks performed by Foot Locker, and to include class action claims for missed meal and rest periods, and for overtime. Id. Foot Locker denied the allegations and asserted 23 affirmative defenses, id., at 3. Plaintiff’s discovery was limited, as were defendant’s responses, and did not include any of the theories advanced in the amended class action complaint (such as the meal period claim); further, while defense attorneys deposed the named plaintiff, plaintiff did not depose any of defendant’s officers or employees. Id. Eventually, the parties reached a proposed settlement of the class action, and the trial court gave preliminary approval to the class action settlement. Id., at 4. As finally approved, the class action settlement called for Foot locker to pay a maximum of $2 million, of which $500,000 would be sought as attorney fees by plaintiff’s counsel, with the settlement proceeds payable on a sliding scale, depending on the length of time worked by the employee and the number of forms returned by members of the class. See id., at 4-6. It was estimated that approximately $1.3 million would be available for the class, and that individual payments could fall within a wide range – for example, the highest amount an individual class member may receive ranged from $2,900 to more than $30,000, depending on the number of participants in the settlement. See id., at 6. Before the parties requested preliminary approval of the class action settlement, a separate class action was filed by Crystal Echeverria against Foot Locker alleging inter alia failure to provide meal breaks, id., at 7. Echeverria objected to the proposed class action settlement and sought discovery from the parties, including the deposition of Foot Locker’s person most knowledgeable about “meal period breaks, record keeping for meal period breaks, and payment of compensation for missed meal period breaks.” Id. The trial court denied leave to depose Foot Locker as “irrelevant because it related either to liability, which ‘doesn’t matter for the settlement,’ or to the amount of damages.” Id., at 8. The trial court ultimately approved the class action settlement over Echeverria’s objection, id., at 9-11, and she appealed. The California Court of Appeal reversed.
The appellate court recognized the limited scope of its review: “Our task is not to make an independent determination of whether the terms of the settlement are fair, adequate and reasonable, but to determine ‘only whether the trial court acted within its discretion.’” Kullar, at 11 (citation omitted). “Great weight” is afforded to trial courts in approving class action settlements, and the trial court’s finding will not be reversed absent an abuse of discretion. Id. Here, the trial court concluded that the class action settlement warranted approval because the four relevant factors were met – viz., the settlement was reached at arm’s-length, sufficient investigation and discovery had been pursued so as to allow the parties and the court to act intelligently, counsel were experienced in similar litigation, and only a small percentage of putative class members objected to the class action settlement. Id., at 11-12. Echeverria conceded that most of these factors indeed had been met, but she insisted that the second factor was missing because plaintiff plainly failed to conduct the investigation necessary to settle the meal period claim, id., at 12. The appellate court agreed.
FDCPA Class Action Claims Certified as a (b)(2) Class after Modification of Class Definition but (b)(3) Class Lacked Predominance as Mini-Hearings would be Required to Establish Damages for each Class Member Ohio Federal Holds
Plaintiffs filed a class action against Cheek & Zeehandelar (an Ohio-based law firm that litigates debt collection actions) and two of its attorneys alleging violations of the federal Fair Debt Collection Practices Act (FDCPA) and Ohio's Consumer Sales Practices Act (CSPA); specifically, the class action complaint alleged that defendant “seeks to garnish or attach the property of Ohio consumers who have defaulted on credit and loan agreements, without having first investigated the nature of the debtors' property to determine if it is legally exempt from garnishment or attachment.” Stewart v. Cheek & Zeehandelar, LLP, 252 F.R.D. 387, 388-89 (S.D. Ohio 2008). Plaintiffs moved the district court to certify the litigation as a class action: the class action certification motion sought a Rule 23(b)(2) class for declaratory and injunctive relief, and a Rule 23(b)(3) sub-class for monetary damages. Id., at 389. . Id. The district court granted plaintiffs’ motion to certify the Rule 23(b)(2) class, but denied class action treatment as to the Rule 23(b)(2) sub-class.
Ohio law permits a judgment creditor to garnish property based on an affidavit stating “that the person named in the affidavit as the garnishee may have property, other than personal earnings, of the judgment debtor that is not exempt under” Ohio or federal law. Stewart, at 389. According to the class action, defendants execute such affidavits for the purpose of attaching property without conducting a proper investigation. Defendants, by contrast, testified to procedures they had in place to ensure that the affidavits were accurate, though the person who executed the affidavits “never personally contacted the debtors to determine whether their property or funds were exempt, nor did he contact the debtors' banks, or conduct debtors' examinations.” Id., at 389-90. Moreover, defendants testified that they did not being sending out discovery “to ascertain the status of their property or funds” until after the class action lawsuit had been filed, id., at 390.
Motion to Dismiss FDCPA Class Action Claim Premised on Filing Untimely Debt Collection Lawsuits Fails but Motion to Dismiss State Law Class Action Claims and to Dismiss FDCPA Class Action Claim based on Attorney Fees Sought in Debt Collection Lawsuits were Meritorious Florida Federal Court Holds
Plaintiff filed a class action against Portfolio Recovery Associates (PRA) and certain individuals (PRA’s lawyers) alleging violations of the federal Fair Debt Collection Practices Act (FDCPA) and Florida’s Consumer Collections Practices Act (FCCPA); the class action complaint asserted that in violation of state and federal law, defendants engaged in a pattern and practice of filing lawsuits to collect debts after the statute of limitations had expired for doing so, and that defendants sought a standard amount of attorney fees without supporting documentation and without actually having incurred the stated amount in attorney fees. Gaisser v. Portfolio Recovery Associates, LLC, 571 F.Supp.2d 1273, 1274-75 (S.D. Fla. 2008). According to the class action, “Defendants’ practice of attempting to collect on debts after expiration of the applicable statute of limitations and Defendants’ practice regarding attorney’s fees runs afoul of the FDCPA.” Id., at 1275. More specifically, the class action complaint alleged that “Defendants used false or misleading representations to collect or attempt to collect a debt in violation of 15 U.S.C. § 1692e,” and “used unfair or unconscionable means to collect or attempt to collect a debt in violation of 15 U.S.C. § 1692f.” Id. The class action further alleged that defendants’ conduct violated Florida state law. Id. Defense attorneys moved to dismiss the first amended class action complaint. Id., at 1274. The district court granted the motion in part and denied the motion in part.
Plaintiff incurred credit card debts but was unable to keep up with the required payments. Gaisser, at 1274. The debt was assigned to PRA, who retained counsel to file suit against plaintiff to collect on the debt. Id. The first issue the district court addressed was whether New Hampshire’s three-year statute of limitations applied or Florida’s five-year statute of limitations applied to the debt collection lawsuits filed by defendants. Id., at 1275-76. The Court concluded that New Hampshire law applied, id., at 1276-77, and that defense attorneys failed to establish that the lawsuit – filed against plaintiff four years after the commencement of the statute of limitations – was filed timely, id., at 1277-78. But the district court granted the defense motion to dismiss the class action claims premised on the lawyer’s attorney fees, concluding that the lawyer verified only what a “reasonable fee” would be for the services rendered, not that the amount sought represented his “actual fee.” Id., at 1278. Because defendants did not represent the amount of attorney fees requested was a “sum certain,” and because defendants invited the court to determine the “reasonable fee” to be awarded, the class action claims based on the attorney fee requests failed. Id., at 1277-78.
To assist class action defense attorneys anticipate the types of class actions against which they will have to defend in California, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. We include only those categories that include 10% or more of the class action filings during the preceding week. In light of the Thanksgiving holiday, this report covers the extended period from November 21 - December 4, 2008, during which time 65 new class action lawsuits were filed. Class actions alleging employment-related claims generally top the list of the new class action filings by a wide margin, and this again proved true. During this reporting period, 38 new labor law class action lawsuits were filed, representing 58% of the total number of new class actions filed during that time period. The only other categories to meet the 10% threshold involved class actions alleging violations of federal securities laws, with 10 new class actions (15%), and class actions alleging violations of California's Unfair Competition Law (UCL), which include false advertising claims, with 8 new filings (12%).
Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 in the Northern District of Texas but Excludes two Class Actions from the Scope of its Transfer Order
Four class actions – in the District of Arizona, the Southern District of Indiana, the Northern District of Mississippi and the Northern District of Texas – were filed against Indianapolis Life and others alleging In re Indianapolis Life Ins. Co. I.R.S. § 412(i) Plans Life Ins. Marketing Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. October 7, 2008) [Slip Opn., at 1]. Specifically, the class action complaints alleged claims “relating to (1) the design, marketing and sale of life insurance policies used by plaintiffs to fund defined benefit pension plans for their small businesses which were represented to be in compliance with U.S. Internal Revenue Service (I.R.S.) § 412(i), and (2) the alleged failure by defendants to disclose that the I.R.S. might deem these policies to be invalid tax shelters.” Id., at 2. Defense attorneys for common defendant Indianapolis Life and its related entities filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Northern District of Texas as to the four class actions in which it was a defendant; certain class action defendants joined this motion, while other class action defendants simply did not oppose the motion. Id., at 1. Plaintiffs in the Texas class action and in the Arizona class action supported the motion for pretrial coordination but argued for the District of Arizona as the appropriate transferee court. Id. Plaintiffs in the Mississippi class action and the Indiana class action, on the other hand, opposed inclusion of their cases in any centralization order, id. Additionally, two defendants in the Arizona class action opposed the motion for pretrial coordination, id.
The Judicial Panel granted the motion to centralize the class action lawsuits involving Indianapolis Life, but agreed it would not promote the interests of justice to include the Mississippi class action or the Indiana class action within the scope of its order because of the “the advanced stage of pretrial proceedings.” In re Indianapolis Life, at 2. The Panel further concluded that the Northern District of Texas was the appropriate transferee court “because (1) the judge assigned to the action pending there has a relatively low caseload, and (2) this action is progressing well.” Id.Download PDF file of In re Indianapolis Life Transfer Order
Discrimination Class Action Against eHarmony.com Granted Class Action Status as to Claims by Gay, Lesbian and Bisexual People Denied Services on Basis of Sexual Orientation, but Class Action Treatment Denied as to Claims by Gay, Lesbian and Bisexual People who were “Deterred” from using eHarmony because of its Refusal to Serve Homosexual and Bisexual Individuals California State Trial Court Holds
Plaintiffs filed a class action against matchmaking website eHarmony.com alleging discrimination under California state law for failing to serve people who are homosexual or bisexual; specifically, the class action complaint asserted that eHarmony’s policy violates California’s Unruh Civil Rights Act, Cal. Civ. Code, § 51 et seq., by denying equal treatment on the basis of sexual orientation. Carlson v. eHarmony.com, Los Angeles Superior Court Case No. BC371958 (November 19, 2008) [Slip Opn., at 2]. Plaintiffs moved the trial court to certify the litigation as a class action, defining the general class as all gay, lesbian and bisexual individuals who were denied services on the basis of sexual orientation. Id. Plaintiffs also sought class action treatment on behalf of two subclasses: (1) all gay, lesbian and bisexual people who tried to use eHarmony but were denied service (essentially tracking the definition of the general class), and (2) all gay, lesbian and bisexual people who were deterred from using eHarmony because of its refusal to provide service to homosexual and bisexual individuals. Id. Defense attorneys argued that class action treatment was not warranted because “the proposed class is not ascertainable and individual issues will predominate.” Id. The trial court granted plaintiffs’ motion and certified the lawsuit as a class action with respect to the general class and first subclass, but denied class action treatment to claims brought on behalf of people “deterred” from using eHarmony’s services. Id.
In addressing the ascertainability of the proposed class, the trial court noted that the class definition first limited membership to “gay, lesbian, and bisexual” people, and that “this part of the proposed class is ascertainable” because it falls within the class of people protected by the Unruh Act. Carlson, at 4. The further limitation in the proposed definition, restricting membership to individuals “who allegedly have been ‘denied’ services,” was also ascertainable because defense attorneys “acknowledge that eHarmony.com does not offer same-sex matching services, which is the functional equivalent of denying such services to plaintiffs.” Id., at 5. As to Subclass 1, that group of individuals who “attempted” to use eHarmony’s services but could not was deemed ascertainable, id., at 6, but the group of individuals allegedly “deterred” from even attempting to use eHarmony’s services was not ascertainable because “[d]eterrence is inherently a subjective inquiry” and “individual facts would overwhelm common issues of fact and law,” id., at 6-7. Accordingly, Subclass 2 was not ascertainable, so the trial court refused to certify a class action on behalf of that proposed class. Id., at 7.
Securities Class Action Complaint Properly Dismissed because Class Action Failed to Satisfy Heightened Pleading Requirements under Private Securities Litigation Reform Act (PSLRA) Ninth Circuit Holds
Plaintiffs filed a class action against InVision Technologies and two of its officers alleging violations of federal securities law; the class action complaint arose because after InVision announced that it had entered into a merger agreement with General Electric, the company disclosed that the merger may not occur because of the discovery of potential violations of the Foreign Corrupt Practices Act causing an immediate drop in InVision’s stock price, even though the merger eventually went through. Glazer Capital Management, LP v. Magistri, 549 F.3d 736 (9th Cir. 2008) [Slip Opn., at 15765-66]. The class action alleged that defendants violated Section 10(b) of the Securities Exchange Act of 1934, as well as Rule 10b-5. Id., at 15768. Defense attorneys moved to dismiss the class action for failure to plead adequately falsity or scienter under the heightened standards established by the Private Securities Litigation Reform Act (PSLRA); the district court granted the motion and dismissed the class action complaint. Id., at 15766. (Plaintiffs had amended the class action complaint twice, but the district court denied them leave to file a third amended class action complaint. See id., at 15768.) The Ninth Circuit affirmed.
We do not discuss here the facts detailed in the Circuit Court’s opinion, see Glazer Capital, at 15766- 68. The pertinent facts are that, after announcing the merger agreement, (1) “on July 30, 2004, InVision issued a press release stating that an internal investigation had revealed possible violations of the FCPA in connection with certain foreign sales transactions,” and (2) “InVision announced that it had voluntarily reported the activities to the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ), but warned that subsequent investigations could potentially delay or terminate the merger.” Id., at 15767. InVision’s stock price plummeted on the news, and only a few days later the class action complaint was filed. Id. Within a few months, InVision settled with DOJ and with the SEC, and the merger with GE went through. Id., at 15767-78.
Putative Class Action Alleging Violations of FACTA not Entitled to Class Action Treatment because Rule 23(b)(3)’s Superiority Requirement for Class Action Certification not Met California Federal Court Holds
Plaintiff filed a putative class action against American Multi-Cinema for violating the federal Fair and Accurate Credit Transactions Act (FACTA); specifically, the class action complaint alleged that defendant printed not only the last four digits of a consumer’s credit or debit card on the customer’s receipt, but the first four digits as well. Bateman v. American Multi-Cinema, Inc., 252 F.R.D. 647, 648 (C.D. Cal. 2008). Notably, the class action complaint did not allege that plaintiff, or any putative member of the class action, suffered any harm as a result of the violation. Id. Defendant corrected its sales practices within two weeks of the filing the class action, id. Plaintiff moved the district court to certify the litigation as a class action; the district court denied the motion on the grounds that Rule 23(b)(3)’s superiority requirement had not been met: “The Court found that if certified, the potential statutory damages to be awarded could be enormous and completely out of proportion to any harm suffered by Plaintiff.” Id. (A copy of the district court order denying plaintiff's initial motion for class action treatment may be found here.) However, the district court denied class action treatment without prejudice pending the Ninth Circuit’s decision in Soualian v. Int’l Coffee & Tea LLC, CV 07-502-RGK (JCx), 2007 WL 4877902 (C.D. Cal. filed June 11, 2007). Soualian, however, was settled so the Ninth Circuit dismissed the appeal. Id. The district court permitted plaintiff to renew his motion for class action certification, and again denied the motion.
After summarizing the legal standard for class action certification under Rule 23, see Bateman, at 648-49, the district court summarized the legislative history of FACTA and the statutory penalties provided for FACTA violations, see id., at 649. The federal court also discussed the 2007 Congressional amendment to FACTA, which clarified that the statute was not intended to provide for private rights of action based solely on the failure of a merchant to include the expiration date of the credit/debit card on the customer’s receipt. See id., at 649-50. The amendment, however, “does not provide Defendant with a safe-harbor for truncating its credit card receipts to eight (8) digits rather than five (5).” Id., at 650. Plaintiff argued that class action treatment was warranted because Congress essentially reaffirmed that the failure to truncate the credit or debit card account numbers supported such lawsuits. Id. But the district court observed that the purpose of the statute was to prevent identity theft, and that “the congressional record also supports an inference that members of Congress were primarily concerned with credit card receipts displaying the entire credit card account number.” Id. Accordingly, the federal court concluded that “it is far from clear whether Congress intended to approve class actions for printing eight (8) digits rather than five (5).” Id. However, the court found persuasive the purpose of the statute – viz., “The purpose of this Act is to ensure that consumers suffering from any actual harm to their credit or identity are protected while simultaneously limiting abusive lawsuits that do not protect consumers but only result in increased cost to business and potentially increased prices to consumers.” Id. (quoting Pub.L. 110-241, § 2(b), 122 Stat. 1565 (June 3, 2008)). Because no one suffered any harm as a result of the technical violation of the statute, the court denied class action treatment. Id.
Labor Law Class Action Dismissed because Class Action Predominance Test of Rule 23(b) could not be Satisfied and, Absent Potential for Class Action Certification, Federal Court Lacked Subject Matter Jurisdiction because Class Action Fairness Act (CAFA) was Inapplicable Mississippi Federal Court Holds
Plaintiffs filed a class action lawsuit against Wal-Mart Stores alleging violations of Mississippi’s labor laws; specifically, the class action complaint alleged that Wal-Mart required plaintiffs to work hours “off the clock,” and to work through meal and rest periods for which they were not paid in violation of state law. Robinson v. Wal-Mart Stores, Inc., 253 F.R.D. 396, 397-98 (S.D. Miss. 2008). The class action sought to represent “all current and former hourly-paid employees of Wal-Mart Stores, Inc., in the State of Mississippi that were employed from May 28, 1999 until the present,” and prayed for compensatory and punitive damages. Id., at 398. Defense attorneys moved to dismiss the class action for lack of subject matter jurisdiction, and the district court granted the motion with leave to amend because plaintiffs had failed to allege citizenship as required to establish diversity jurisdiction, id. The amended class action complaint is “virtually identical” to the original class action complaint, and defense attorneys again moved to dismiss for lack of subject matter jurisdiction because the class action failed to allege the $5 million amount in controversy required for federal court jurisdiction under the Class Action Fairness Act (CAFA). Id. Also, the defense asked the federal court to dismiss the class action allegations in the complaint. Id. The district court granted the defense motion in part, and denied it in part.
Consistent with Fifth Circuit authority, the district court began its analysis with the jurisdictional attack under Rule 12(b)(1): “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Robinson, at 398 n.1 (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001)). After noting that the burden of establishing federal court jurisdiction rested on “the party seeking to litigate in federal court,” id., at 398, the district court turned to Wal-Mart’s argument that CAFA’s $5 million amount in controversy requirement had not been met, id., at 399. Plaintiffs’ argued that the putative class consisted of 80,000 people and, accordingly, “each class member's claim would only need to equal $62.50 to satisfy the $5,000,000 jurisdictional requirement.” Id., at 399. Plaintiffs’ noted also that they sought punitive damages, id. Defense attorneys made several arguments in support of the position that the $5 million threshold had not been met, but the district court concluded “it is not apparent, to a legal certainty, that Plaintiffs cannot recover the jurisdictional amount of $5,000,000 as claimed in their Amended Complaint.” Id. On this ground, then, the district court denied the motion to dismiss the class action, id. It rejected also Wal-Mart’s claim that the federal court lacked subject matter jurisdiction because the claims of some of the class members arose prior to CAFA’s effective date. Id., at 399-400.