Class Action Articles

Posted On: June 24, 2013 by Michael J. Hassen Email This Post

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Class Action Defense Cases–American Express v. Italian Colors: United States Supreme Court Reverses Second Circuit Refusal To Enforce Class Action Waiver Under Federal Arbitration Act (FAA)

Federal Arbitration Act (FAA) Compels Enforcement of Class Action Waiver in Contract Even if Cost of Pursuing Federal Claim will be Prohibitively Expensive to Arbitrate U.S. Supreme Court Holds

Plaintiffs – a group of merchants who accept American Express cards – filed a putative class action against American Express alleging of the Sherman Act and seeking treble damages under the Clayton Act; the class action complaint alleged that American Express violated federal antitrust laws by “us[ing] its monopoly power in the market for charge cards to force merchants to accept credit cards at rates approximately 30% higher than the fees for competing credit cards.” American Express Co. v. Italian Colors Restaurant, __ U.S. __, __ S.Ct. __, 2013 WL 3064410, *1-2 (June 20, 2013). Plaintiffs’ contract with American Express “contains a clause that requires all disputes between the parties to be resolved by arbitration” and further provides that “[t]here shall be no right or authority for any Claims to be arbitrated on a class action basis.” Id., at *1 (citing In re American Express Merchants’ Litig., 667 F. 3d 204, 209 (2d Cir. 2012)). Accordingly, American Express moved under the Federal Arbitration Act (FAA) to compel arbitration of Plaintiffs’ individual claims, id., at *2. Plaintiffs opposed dismissal of their class action complaint, submitting an expert witness declaration that estimated the cost of proving Plaintiffs’ antitrust claims could “exceed $1 million,” while the maximum recovery for any individual plaintiff would be less than $40,000. Id. The district court rejected Plaintiffs’ argument, granted the motion to compel arbitration of the individual claims and dismissed the class action complaint. Id. The Second Circuit reversed, holding that because pursuit of Plaintiffs’ antitrust claims would be prohibitively expensive if pursued individually, the class action waiver was unenforceable. Id. (citing In re American Express Merchants’ Litig., 554 F. 3d 300, 315-16 (2d Cir. 2009)). The Supreme Court reversed.

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Posted On: April 15, 2012 by Michael J. Hassen Email This Post

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Class Action Defense Cases–Brinker v. Superior Court: California Supreme Court Affirms, Reverses And Remand Class Action Certification Ruling In Labor Law Class Action Clarifying Meal And Rest Break Requirements

In Considering Class Action Certification Order in Labor Law Class Action, California Supreme Court Holds Rest Periods Not Mandated Prior to Meal Periods, and Employer must Provide Meal Breaks but need not Ensure Employee Takes Meal Breaks

Plaintiffs filed a putative class action in California state court against their employer, Brinker Restaurant, alleging various labor law violations; specifically, the class action complaint alleged that Brinker failed to provide employees with rest breaks, failed to provide employees with meal breaks, and that Brinker required employees to work “off-the-clock.” Brinker Restaurant Corp. v. Superior Court, ___ Cal.4th ___ (April 12, 2012) [Slip Opn., at 1, 4]. With respect to the meal period claim, plaintiffs argued that state law requires employers “to provide a 30-minute meal period at least once every five hours.” Id., at 5. Defense attorneys argued that state law does not so long as it provides one meal period for work shifts exceeding 5 hours and two meal periods for work shifts exceeding 10 hours, then it has complied with state law. Id. Brinker also argued that individual issues predominated so that class action treatment would be inappropriate, id. Specifically, Brinker argued that it was required only to permit its employees to take meal and rest breaks, but it was under no legal obligation to ensure that its employees take such breaks. Id., at 6. Plaintiffs moved the trial court to certify the litigation as a class action, id., at 5. The trial court agreed with plaintiffs, and granted plaintiffs’ motion to certify the lawsuit as a class action. Id., at 7. The Court of Appeal granted Brinker’s petition for writ relief and reversed. The Court of Appeal concluded that common issues did not predominate as a matter of law, and therefore the trial court erred in certifying the claims for class action treatment. Id., at 15. The California Supreme Court granted review and held (1) the trial court properly certified the rest break claim for class action treatment, (2) improperly certified the “off-the-clock” claim, and (3) needed to reconsider the meal period claim. Id., at 1-2. Importantly, with respect to the meal break claim, the Supreme Court held that “an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” Id., at 2.

The Supreme Court decision in Brinker has been awaited by both sides of the class action bar. Unfortunately, the decision creates as many questions as it solves. For example, with respect to the general rules governing class certification, the Supreme Court recognized that both state and federal decisions hold that consideration of the merits may overlap class certification issues. See Brinker, at 10-12. The Court also held that “[t]o the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them.” Id., at 13. However, in the next breath, the Supreme Court stated that “a court generally should eschew resolution of such issues unless necessary,” id. And relying on its prior decisions, the Court strongly discouraged trial courts from considering the merits of a claim in determining class certification. See id., at 11. But the Court summarized its holding as follows: “if the presence of an element necessary to certification, such as predominance, cannot be determined without resolving a potential legal issue, the trial court must resolve that issue at the certification stage.” Id., at 14. So precisely when trial court consideration of the merits is necessary or prohibited is less clear post-Brinker.

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Posted On: June 21, 2011 by Michael J. Hassen Email This Post

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Class Action Defense Cases–Wal-Mart v. Dukes: Supreme Court Reverses Class Action Certification Of Largest Labor Law Class Action In History Holding Sex Discrimination Claims Lacked Commonality

Class Action Treatment of Sex Discrimination in Promotion Claim Against Wal-Mart not Proper because Commonality Requirement not Met and because Rule 23(b)(2) Class Inappropriate given Monetary Relief Sought Supreme Court Holds

Plaintiffs filed a putative labor law class action against Wal-Mart Stores, alleging systematic discrimination against women in pay and promotion in violation of Title VII. Wal-Mart v. Dukes, 564 U.S. ___ (June 20, 2011) [Slip Opn., at 1]. The class action sought injunctive and declaratory relief, but also sought monetary damages in the form of backpay. Id. The theory underlying the class action against Wal-Mart was not that the company had “any express corporate policy against the advancement of women” but, rather, that Wal-Mart’s local managers “[exercised] discretion over pay and promotion…disproportionately in favor of men, leading to an unlawful disparate impact on female employees.” Id., at 4. As the Supreme Court explained, “The basic theory of the[] case is that a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers – thereby making every woman at the company the victim of one common discriminatory practice.” Id. The district court certified a nationwide class action against Wal-Mart consisting of approximately 1.5 million current and former female employees, id., at 1. The Ninth Circuit affirmed the class action certification order, id. The Supreme Court granted certiorari and reversed.

By way of background, the Supreme Court noted that Wal-Mart is the largest private employer in the United States, operating 4 types of retail stores (Discount Stores, Neighborhood Markets, Sam’s Clubs and Superstores) that are “divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece,” each with 40-53 separate departments and anywhere 80-500 employees. Wal-Mart, at 1-2. Decisions regarding pay and promotion “are generally committed to local managers’ broad discretion, which is exercised ‘ in a largely subjective manner.’” Id., at 2, quoting 222 F.R.D. 137, 145 (N.D. Cal. 2004). With respect to the individual named plaintiffs, Betty Dukes began working for Wal-Mart in 1994 and was eventually promoted to customer service manager before being demoted all the way down to greeter due to “a series of disciplinary violations.” Id., at 3. Dukes admitted that she violated company policy, but claimed that her demotions were “retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infractions.” Id. Christine Kwapnoski worked at Sam’s Club “for most of her adult life” and held various positions, “including a supervisory position,” but she claimed that her male manager yelled at her and other female employees (but not at men) and told her to dress better, wear makeup and “doll up.” Id. Edith Arana worked at Wal-Mart from 1995-2001, and in 2000 repeatedly asked her store manager about management training “but was brushed off.” Id. She followed internal complaint procedures and was advised to bypass her store manager and apply directly to the district manager for management training, but she elected not to do so. Id. Arana was fired in 2001 for failing to comply with the company’s timekeeping policy. Id.

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Posted On: March 24, 2011 by Michael J. Hassen Email This Post

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Class Action Defense Cases–Pineda v. Williams-Sonoma: California Supreme Court Holds ZIP Codes Constitute “Personal Identifiable Information” Within Meaning Of California’s Song-Beverly Act

Trial Court Erred in Dismissing Class Action Complaint because Retailer Request for ZIP Codes Violated Song-Beverly Consumer Protection Statute California Supreme Court Holds

Plaintiff filed a putative class action against retailer Williams-Sonoma alleging that it violated California’s Song-Beverly Credit Card Act of 1971 (one of the State’s consumer protection statutes) by asking her for her ZIP code at the time of her purchase. Pineda v. Williams-Sonoma Stores, Inc., 51 Cal.4th 524 (Cal. 2011) [Slip Opn., at 1]. In relevant part, Song-Beverly “prohibits businesses from requesting that cardholders provide ‘personal identification information’ during credit card transactions, and then recording that information.” Id. According to the allegations underlying the class action complaint, plaintiff provided her ZIP code because she believed it was required in order to complete her credit card purchase. Id., at 1-2. More importantly, the class action alleged that Williams-Sonoma “subsequently used her name and ZIP code to locate her home address.” Id., at 2. Defense attorneys demurred to the class action complaint on the grounds that a ZIP code is not personal identification information within the meaning of Song-Beverly. Id., at 3. The trial court sustained the demurrer, and the Court of Appeal affirmed based, in part, on Party City Corp. v. Superior Court, 169 Cal.App.4th 497 (Cal.App. 2008), which had previously held that “a ZIP code, without more, does not constitute personal identification information.” Id., at 3-4 (citation omitted). The California Supreme Court granted review and reversed.

As noted above, the class action complaint alleged that defendant requested that customers provide ZIP codes at point of sale. Pineda, at 2-3. The thrust of the class action complaint was that “[a]t the end of the transaction, defendant had plaintiff’s credit card number, name, and ZIP code recorded in its database.” Id., at 3. The Supreme Court summarized the critical facts as follows: “Defendant subsequently used customized computer software to perform reverse searches from databases that contain millions of names, e-mail addresses, telephone numbers, and street addresses, and that are indexed in a manner resembling a reverse telephone book. The software matched plaintiff’s name and ZIP code with plaintiff’s previously undisclosed address, giving defendant the information, which it now maintains in its own database. Defendant uses its database to market products to customers and may also sell the information it has compiled to other businesses.Id. (italics added). It is undisputed that defendant could not, consistent with Song-Beverly, have asked plaintiff for her home address; the issue presented was whether defendant could, consistent with Song-Beverly, have asked plaintiff for her ZIP code and then use it to obtain her home address.

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Posted On: March 19, 2011 by Michael J. Hassen Email This Post

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Creating A Class Action System–What A Country Should Consider

An Introduction To Issues That Must Be Addressed By Any Country Considering Enacting Or Modifying Class Action Legislation

Several countries are considering the use of class action lawsuits. This article’s purpose is to identify the important issues one should consider in evaluating the fairness and efficacy of class action litigation.

A class action lawsuit can be devastating. The staggering costs of merely defending against one — let alone the cost of actually losing — have forced many American corporations into bankruptcy or caused their management teams to be replaced. The U.S. Supreme Court has recognized that class action discovery can be a form of extortion; it can force a company to surrender and settle a lawsuit, because it cannot afford to properly defend itself.

When it devised the class action lawsuit as a procedure to streamline civil litigation, Congress did not anticipate it would be used as a weapon to injure companies which may have technically violated that law, but not caused any harm. In California, alone, up to 100 class action lawsuits are filed every week — thousands every year. Most are not properly class actions in the true sense; they are not legal proceedings in which persons represent interests common to a large group of persons who have been actually injured. Instead, most are premised on the technical violation of some statute, where the supposed violation has not actually harmed anyone. Frequently, an attorney files a class action so he can compel defendants to settle it, and he can demand attorney fees as a direct result. Essentially, most class action lawsuits are “attorney fee motions” disguised as “legitimate” lawsuits.

A country considering implementing a class action system should learn from our flawed system. The author cannot address all of the factors a country should consider in determining whether to implement a class action procedure, or what limits to impose to prevent lawsuits from being filed for the sake of generating attorney fees rather than helping injured people. But the author hopes it will give legislative bodies pause to consider consequences that follow class action litigation.

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