Class Action Defense Blog

DC Circuit Agrees With Defense that Attorney Fee Awards in Section 1983 Class Action to Enforce IDEA (Individuals with Disabilities Education Act) are Capped by IDEA, but Holds that Federal District Court Failed to Properly Certify Two Attorney Fee Orders for Appeal

Following substantial litigation in multiple consolidated class action lawsuits against the District of Columbia, the federal district court rejected defense arguments and entered three separate attorney fees awards against the District. Defense attorneys sought interlocutory review of the attorney fee orders; the D.C. Circuit Court of Appeals held (1) it did not have jurisdiction over two of the orders because the district court failed to properly certify them for appeal, and (2) the district court erred in concluding that the Individuals with Disabilities Education Act (IDEA) did not limit the amount of fees that could be awarded in section 1983 actions to enforce the IDEA. Blackman v. District of Columbia, 456 F.3d 167 (D.C. Cir. 2006).

Congress enacted legislation limiting the amount of attorney fees that could be awarded to prevailing parties in IDEA cases against the District of Columbia to stem “‘the growth in legal expenses and litigation associated with special education in the District of Columbia and the usurping of resources from education to pay attorney fees.’” Blackman, at 170 (quoting H.R.Rep No. 195-670, at 50 (1998)). Four separate class action lawsuits were filed against the District under section 1983 seeking to enforce the IDEA, two of which were consolidated as a single lawsuit leaving three distinct albeit consolidated class actions pending. Id., at 171-72. The district court ordered injunctive relief in two of the cases, but not the third. Eventually the plaintiffs in all three actions sought attorney fees. The District argued that IDEA capped any attorney fee award against it, and that attorney fees were not warranted in the action in which the district court failed to order injunctive relief because the plaintiffs therein were not “prevailing parties.” The district court rejected both arguments and awarded attorney fees in all three actions. Id., at 173-74.

Continue reading "Class Action Defense Cases-Blackman v. District of Columbia: Federal Court Failed To Properly Certify Orders For Appeal And Defense Correct That Attorney Fees In Section 1983 Class Actions To Enforce IDEA Are Capped DC Circuit Holds" »

Posted In: Class Action Court Decisions

Court of Federal Claims Rejects Federal Government’s Defense Arguments and Certifies Class Action Under RCFC 23

On June 22, 2006, the Court of Federal Claims certified, over defense objections, only the third class action under RCFC 23 since the statute’s substantial revision in May 2002. Land Grantors in Henderson, Union & Webster Counties, Kentucky v. United States, 71 Fed.Cl. 614 (Ct. Cl. 2006). Briefly, the federal government acquired about 36,000 acres of land in Kentucky to establish what became Camp Breckinridge. Most of the land had been family farms, and it was acquired - either by settlement or jury verdict - after the government initiated condemnation proceedings. From 1942-1944, the government paid approximately $3.1 million for fee simple title to the land. In 1951, the government learned of gas and oil reserves on the property, and from 1957-1964 it realized more than $1.8 million in lease revenues. After Camp Breckinridge became inactive, in 1966 the governmental sold the coal rights for $7.4 million, and the gas, oil and mineral rights for almost $24.6 million. Former landowners claimed “they were paid nothing for their coal, gas, oil, and other mineral rights or a de minimus amount for existing leases when their land was condemned in 1942-1944.” Id., at 617-18. Still later, the government sold the surface rights to the condemned land for almost $6 million. Id., at 618. In 1993, Congress intervened. Id., at 618-19.

Continue reading "Class Action Defense Cases-Land Grantors v. United States: Over Defense Objection Federal Claims Court Certifies Only Third Class Action Under Revised RCFC 23" »

Posted In: Certification of Class Actions, Class Action Court Decisions

As Defections Mount, Class Action Firm Offers Financial Incentives to Retain Lawyers

We have devoted several articles to the trials facing class action plaintiff firm Milberg Weiss Bershad & Schulman, from its federal indictment for allegedly paying millions in kickbacks to clients to serve as class representatives to the continual loss of top attorneys. Now Nathan Koppel of the Wall Street Journal reports that Milberg Weiss has decided to fight defections with a different kind of kickback - bonuses and higher salaries for attorneys who stay with the firm. Koppel reports that almost half of the Milberg Weiss partners have abandoned ship in the wake of the firm’s federal indictment on fraud charges. In addition to the 20 partners who have left (or soon will leave) the firm, about 20 more lawyers have left as well.

Koppel reports that the firm that once had about 110 lawyers and now has about 70 “has promised special bonuses and fatter paychecks for people who stay.” Koppel further reports Weiss has offered partners “a greater share of the firm’s equity or higher salaries” and that the salaries of some partners may double.

Nathan Koppel’s article, entitled “At Milberg Weiss, A Move to Stanch Loss of Top Talent,” may be found on page B1 of the September 9, 2006 online edition of the Wall Street Journal.

Posted In: Class Actions In The News

District Court did not Abuse Discretion in Denying Class Certification for Lack of Commonality and Numerosity even though Class Contained 84 Members and in Granting Defense Motion for Summary Judgment Tenth Circuit Holds

Thirty-three individuals filed a putative class action against Salt Lake City and certain law enforcement officers alleging “gross improprieties from the SWAT-style police raid” and setting forth “a litany of horrific facts to support their claims.” Trevizo v. Adams, 455 F.3d 1155, 1158, 1159 (10th Cir. 2006). The district court denied a motion to certify the action as a class action, and subsequently granted a defense motion for summary judgment that dismissed all claims as to the ten plaintiffs who failed to appear for deposition. The court denied class certification based on numerosity and commonality. Id., at 1162. The Tenth Circuit affirmed.

As to the defense summary judgment motion, the Circuit Court held that because plaintiffs did not appear for deposition “it was incumbent upon [them] to provide – at the very least – affidavits detailing what happened to them” but they didn’t. Trevizo, at 1160.

Continue reading "Class Action Defense Cases—Trevizo v. Adams: Tenth Circuit Affirms Dismissal of § 1983 Class Action Claims Against City And Denial Of Class Certification" »

Posted In: Certification of Class Actions, Class Action Court Decisions

MDL Judicial Panel Transfers Class Action Lawsuits to Massachusetts Despite Fact that No Cases were Pending in that State

After four statewide class actions were filed against Volkswagon of America arising out of its August 1004 warranty extension/reimbursement program for certain Volkswagon and Audi vehicles, defense and plaintiff attorneys filed a § 1407 motion for centralization of the litigation. In re Volkswagon and Audi Warranty Extension Litig., ___ F.Supp.2d ___, 2006 WL 2548199 (Jud.Pan.Mult.Lit., August 29, 2006). The lawsuits had been filed in California, Florida, Illinois and Pennsylvania. The plaintiffs requested transfer to the Southern District of Illinois, and the defense requested centralization in the Eastern District of Pennsylvania. Pursuant to 28 U.S.C. § 1407, the Judicial Panel granted the joint motion for centralization, but transferred the cases to the District of Massachusetts because “[b]y centralizing this litigation before Judge Joseph Tauro, we are assigning this litigation to a jurist who has both the time and experience to steer this litigation on a prudent course.”

NOTE: This case illustrates that the Judicial Panel takes its job quite seriously. While the orders granting § 1407 motions often seem identical, the similarity in language - necessitated by the statutory requirements for centralization - belies the care the Judicial Panel exercises in ruling upon these motions.

Posted In: Multidistrict Litigation, Class Action Court Decisions

As a resource for class action defense attorneys who defend against class actions brought under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. Congress outlined in detail the responsibilities of those who furnish information to consumer reporting agencies in Section 1681s-2 as follows:

§ 1681s-2. Responsibilities of furnishers of information to consumer reporting agencies

(a) Duty of Furnishers of Information to Provide Accurate Information

(1) Prohibition

(A) Reporting information with actual knowledge of errors.

A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.

(B) Reporting information after notice and confirmation of errors.

A person shall not furnish information relating to a consumer to any consumer reporting agency if

(i) the person has been notified by the consumer, at the address specified by the person for such notices, that specific information is inaccurate; and

(ii) the information is, in fact, inaccurate.

(C) No address requirement.

A person who clearly and conspicuously specifies to the consumer an address for notices referred to in subparagraph (B) shall not be subject to subparagraph (A); however, nothing in subparagraph (B) shall require a person to specify such an address.

(D) Definition.

For purposes of subparagraph (A), the term “reasonable cause to believe that the information is inaccurate” means having specific knowledge, other than solely allegations by the consumer, that would cause a reasonable person to have substantial doubts about the accuracy of the information.

(2) Duty to correct and update information.

A person who

(A) regularly and in the ordinary course of business furnishes information to one or more consumer reporting agencies about the person's transactions or experiences with any consumer; and

(B) has furnished to a consumer reporting agency information that the person determines is not complete or accurate, shall promptly notify the consumer reporting agency of that determination and provide to the agency any corrections to that information, or any additional information, that is necessary to make the information provided by the person to the agency complete and accurate, and shall not thereafter furnish to the agency any of the information that remains not complete or accurate.

(3) Duty to provide notice of dispute.

If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.

(4) Duty to provide notice of closed accounts.

A person who regularly and in the ordinary course of business furnishes information to a consumer reporting agency regarding a consumer who has a credit account with that person shall notify the agency of the voluntary closure of the account by the consumer, in information regularly furnished for the period in which the account is closed.

(5) Duty to Provide Notice of Delinquency of Accounts

(A) In general.

A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall, not later than 90 days after furnishing the information, notify the agency of the date of delinquency on the account, which shall be the month and year of the commencement of the delinquency on the account that immediately preceded the action.

Continue reading "15 U.S.C. § 1681s-2 – Responsibilities of Furnishers of Information to Consumer Reporting Agencies: Statutory Provisions of the FCRA (Fair Credit Reporting Act) for Class Action Defense Attorneys" »

Posted In: FCRA Class Actions, Statutes & Rules

As a service to class action defense attorneys, we recently began providing unofficial summaries of the categories of new class action lawsuits filed in California. It is our hope that this will permit defense attorneys to anticipate claims against which they may have to defend. This weekly, unofficial summary covers 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 September 1 - September 7, 2006. We include only those categories that include 10% or more of the class action filings during the relevant timeframe.

Approximately 22 class action lawsuits were filed in these California state and federal courts during that time period, and employment law cases once again head up the list. Of the weekly filings, more than half involved employment law claims. In all, a dozen of the new class action cases (55%) alleged labor law violations. The only other category of cases to crack the 10% threshold involved unfair business practice/unfair competition (UCL) claims. During the reported time period, five (5) UCL class action lawsuits, accounting for 23% of the new cases, were filed.

Posted In: Class Actions In The News

Judicial Panel on Multidistrict Litigation (MDL) Grants § 1407 Motion Over Objection of Some Defense Attorneys to Avoid Inconsistent Rulings on Class Action Certification in Federal Antitrust Cases

Six class action lawsuits were filed against Merck, Medco Health, PAID Prescriptions (now part of Medco), ExpressScripts, Caremark, and AdvancePCS (now known as CaremarkPCS) alleging violations of federal antitrust laws based on the “conduct by the pharmacy-benefit manager (PBM) defendants – including the negotiation of rates for the sale of prescription drugs by retail pharmacies.” In re Pharmacy Benefit Managers Antitrust Litig., ___ F.Supp.2d ___, 2006 WL 2548205 (Jud.Pan.Mult.Lit., August 24, 2006). These class action cases were pending in Alabama, California, Illinois and Pennsylvania. One of the Pennsylvania plaintiffs filed a motion pursuant to 28 U.S.C. § 1407 to transfer each of the actions to the Eastern District of Pennsylvania; defense attorneys for ExpressScripts, Caremark and AdvancePCS opposed centralization based on the “unique questions of fact relating to each PBM.” The Panel disagreed, explaining that even though “the contracts between each plan sponsor/PBM will spawn unique discovery, all plaintiffs allege that these contracts create a price-fixing conspiracy” and that “all actions can be expected to focus on similar PBM practices and procedures.” The Judicial Panel concluded that centralization would “avoid duplication of discovery, prevent inconsistent or repetitive pretrial rulings (especially on the issue of class certification), and conserve the resources of the parties, their counsel and the judiciary.” Accordingly, the Panel transferred the cases to the Eastern District of Pennsylvania.

Posted In: Multidistrict Litigation, Class Action Court Decisions

MDL Judicial Panel Centralizes Class Action Lawsuits in Illinois Because Action in that State is More Procedurally Advanced

Three lawsuits were filed against JP Morgan Chase alleging misrepresentations in connection with its merger in 2004 with Bank One; two lawsuits were filed in Delaware, and one lawsuit was filed in Illinois. The plaintiff in the Delaware lawsuits moved for centralization of the class actions in Delaware. The defense supported centralization, but requested that the cases be transferred to the Southern District of New York. The Illinois plaintiff opposed centralization but if the motion is granted requested that the Delaware cases be transferred to Illinois. In re JP Morgan Chase & Co. Securities Litig., ___ F. Supp.2d ___, 2006 WL 2548202 (Jud.Pan.Mult.Lit., August 24, 2006). Pursuant to 28 U.S.C. § 1407, the Judicial Panel granted the motion for centralization, but selected the Northern District of Illinois as the transferee court because the first lawsuit had been filed in that court and that litigation “is more procedurally advanced than the two Delaware actions.”

Posted In: Multidistrict Litigation, Class Action Court Decisions

As a resource for the class action defense lawyer who defends against class actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The FCRA specifically addresses the question of information needed in connection with overdue child support obligations as follows:

§ 1681s-1. Information on overdue child support obligations

Notwithstanding any other provision of this title, a consumer reporting agency shall include in any consumer report furnished by the agency in accordance with section 1681b of this title, any information on the failure of the consumer to pay overdue support which

(1) is provided

(A) to the consumer reporting agency by a State or local child support enforcement agency; or

(B) to the consumer reporting agency and verified by any local, State, or Federal government agency; and

(2) antedates the report by 7 years or less.

Posted In: FCRA Class Actions, Statutes & Rules

Illinois Federal Court Gives Defense Latest Victory in Spyware Class Action Lawsuits

Eric Benderoff of the Chicago Tribune reports today that a federal district court has granted a motion to dismiss a putative class action against 180solutions (now known as Zango), and quotes the company’s Chief Compliance Officer as stating, “[Plaintiffs] claimed we were a spyware company and that we trespass on people’s computers. We don’t do that; we are invited on the customer’s computer.” This is but the latest defense victory against such class actions: Benderoff states, “So far, there has not been a successful class-action suit against software firms that are accused of planting unwanted and irritating spyware programs on computers.” However, the article identifies at least one lawsuit where plaintiff’s lawyer “successfully argued that spyware companies were trespassing on personal property” which Benderoff describes as “a tactic lifted from environmental law.” Recent governmental efforts to attack the spyware problem may prove more successful, and Benderoff notes that the Federal Trade Commission “has brought six cases to date under its unfair and deceptive practices authority while the Justice Department has pursued spyware cases using the Wiretap Act.”

Continue reading "Class Action Defense Cases-Federal District Court Grants Motion To Dismiss Putative Class Action Alleging 180Solutions Was A Spyware Company" »

Posted In: Class Actions In The News

Federal District Court Properly Granted Defense Motion to Dismiss RESPA Class Action Because Congress did not Expressly Prohibit Servicers from Charging Fees for Payoff Statements

Borrowers filed a putative class action against GMAC Mortgage Corporation alleging that it violated the federal Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601-2617, “by charging a $20 fee each time the plaintiffs requested their payoff amount from GMAC’s website,” and alleging also breach of contract. The defense moved to dismiss the complaint. The district court granted the motion to dismiss the RESPA claim, but declined to exercise jurisdiction over the contract claim. The Eighth Circuit affirmed. Watt v. GMAC Mortgage Corp., 457 F.3d 781, 782 (8th Cir. 2006).

Plaintiffs argued that RESPA requires responses to “qualified written requests” be provided free of charge because RESPA does not affirmatively state that loan servicers may charge fees for such responses: “Since RESPA imposes a duty to respond but does not stated that servicers may charge fees for statements sent in response to qualified written requests, the [plaintiffs] argue, servicers are prohibited from charging fees.” Watt, at 783. The Circuit Court disagreed, holding at page 783:

Continue reading "Watt v. GMAC Mortgage-RESPA Class Action Defense Cases: Defense Motion To Dismiss RESPA Class Action Properly Granted Because RESPA Does Not Prohibit Servicer From Charging A Fee For Payoff Statements And Does Not Cap Fee Charged Eighth Circuit Holds" »

Posted In: Class Action Court Decisions, RESPA/TILA Class Actions

Hot on the heels of Julie Creswell’s New York Times article on options backdating comes a report on the costs to shareholders as estimated by a new study expected to be published in the Michigan Law Review next year. That study, according to Eric Dash of the New York Times, was prepared by three University of Michigan researchers and reportedly concludes that while the backdating of stock options increased executive pay by an average of slightly more than 1%, the average decrease in market value was 8%. Put in terms of dollars, Dash reports that the study concludes, “For about $600,000 a year to the executives, shareholders are being put at risk to the tune of $500 million.”

Care should be exercised in reviewing the statistics, however, as Dash reports that the study employs several assumptions and limitations that may not be valid. For example, Dash notes that the study assumes that the stock prices of affected companies “would not recover” - an assumption that appears contrary to information in Ms. Creswell’s article. The study also apparently assumes that the options “were backdated over a 90-day period,” when in fact - as Ms. Creswell’s article explains - many of the options were backdated so long ago that statutes of limitation have run.

Eric Dash’s article, entitled “Report Estimates the Costs Of a Stock Options Scandal,” may be found in Section C. of the September 6, 2006 edition of the New York Times.

Posted In: Class Actions In The News

As a Matter of First Impression in Seventh Circuit, Court Holds that Class Action Fairness Act of 2005 (CAFA) Shifts Burden to Plaintiff to Establish Exceptions to Federal Court Jurisdiction

After plaintiff filed a putative labor law class action against FedEx in Pennsylvania state court, defense attorneys removed the case to federal court under CAFA (Class Action Fairness Act of 2005). The Judicial Panel on Multidistrict Litigation transferred the class action to the Northern District of Indiana, and plaintiff moved to remand the case to Pennsylvania state court under the “local controversy” or “home-state controversy” exceptions to federal court jurisdiction under CAFA. The district court denied the motion on the ground that plaintiff had failed to meet his burden of establishing that the exceptions applied. Plaintiff appealed the order, and the Seventh Circuit held that CAFA shifted the burden to plaintiff and affirmed. Hart v. FedEx Ground Package System Inc., 457 F.3d 675, 676-77 (7th Cir. 2006).

Plaintiff’s class action alleged the FedEx delivery drivers were misclassified as “independent contractors.” Hart, at 676. The complaint alleged that “greater than two-thirds of the members of the plaintiff class, if not all of the members of the plaintiff class, are citizens of Pennsylvania.” Id., at 677. FedEx removed the lawsuit to federal court under CAFA alleging in the notice of removal that “[u]pon information and belief, some of the proposed class members are not residents of Pennsylvania,” id. Absent CAFA, diversity jurisdiction would not exist. Id., at 676. Plaintiff sought to remand the action under CAFA’s “local controversy” and “home-state controversy” exceptions, see § 1332(d)(4)(B), and urged that under Brill v. Countrywide Home Loans¸ 427 F.3d 446 (7th Cir. 2005), FedEx bore the burden of establishing jurisdiction under CAFA and “also that none of the mandatory exclusions from CAFA jurisdiction found in § 1332(d)(4) applied,” id., at 677.

Continue reading "FedEx Class Action Defense Case-Hart v. FedEx: CAFA (Class Action Fairness Act) Shifts Burden Of Persuasion From Defense To Plaintiff To Establish Exceptions To Federal Court Jurisdiction Seventh Circuit Holds" »

Posted In: Class Action Fairness Act (CAFA), Removal & Remand, Class Action Court Decisions

Class Action Fairness Act (CAFA) Permits Removal to Federal Court by Any Primary Defendant Without Consent of Other Defendants and States have no Citizenship for Purposes of CAFA's "Local Controversy" Exception

A putative class action was filed in Louisiana state court against a Canadian company, Pioneer Americas, and Louisiana’s Department of Environmental Quality arising following the release of excessive amounts of mercury into the atmosphere at Pioneer’s hydrogen processing facility. Frazier v. Pioneer Americas LLC, 455 F.3d 542 (5th Cir. 2006). Pioneer’s defense removed the class action to federal court without DEQ’s consent, and the district court denied plaintiffs’ motion to remand it back to state court. In the face of the Class Action Fairness Act of 2005 (CAFA), plaintiffs “did not challenge defendants’ allegation of prima facie CAFA jurisdiction - minimal diversity and at least $5 million in controversy” - but rather argued that two exceptions applied: the exception for class actions against States and the “local controversy exception.” Id., at 544. The district court agreed with the defense that neither exception applied, and the Fifth Circuit affirmed.

Preliminarily, the Circuit Court addressed the $5 million threshold requirement for jurisdiction, even though it found that plaintiffs had not properly raised the issue. The Court explained that CAFA requires only “minimal diversity” and concluded that “the petition, seeking damages for severe injuries suffered by at least 500 people and attorneys’ fees, makes it ‘facially apparent’ that at least $5 million is in controversy, in the aggregate.” Frazier, at 545 (footnotes omitted).

Continue reading "Class Action Defense Cases-Frazier v. Pioneer: Removal Of Putative Class Action Under CAFA (Class Action Fairness Act) Proper Because Removing Primary Defendant Not A State And Local Controversy Exception Inapplicable Fifth Circuit Holds" »

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Plaintiff Lawyers Focus on Derivative Actions Rather than Class Action Lawsuits to Attack Stock Option Backdating Programs

Defense attorneys have expressed surprise at the relatively limited number of class action lawsuits filed in the wake of options-backdating disclosures; Julie Creswell of the New York Times has noticed this, too. In today’s edition of the New York Times, Creswell provides a possible explanation for the dearth of class action filings: “Even when it is clear that options grant dates were manipulated, it is less clear how to calculate damage to specific shareholders. And in many cases, the statute of limitations has expired.”

As a result, plaintiff lawyers have turned to derivative actions to challenge options-backdating programs. Creswell reports that while only 15 securities class action lawsuits challenge stock-option plans, at least 57 derivative actions attacking options-backdating have been filed.

Julie Creswell’s article, entitled “One Route Seems Closed, So Lawyers Try Different Lawsuit in Stock-Option Scandal,” may be round in Section C. of the September 5, 2006, edition of the New York Times.

Posted In: Class Actions In The News

Tenth Circuit Holds that Interlocutory Review of Class Certification Orders Must be Sought within 10 days of Initial Order, not Order Denying Reconsideration, and that Plaintiffs’ Statistical Evidence Failed to Establish Prima Facie Case of Disparate Impact Because Males may have Worked more Overtime Hours for Reasons Other than Gender

Female employees filed a putative employment class action in federal district court alleging Title VII Civil Rights Act sex discrimination against Boeing on theories of both disparate impact and disparate treatment. Following substantial litigation, that included class certification of certain subclasses, the district court granted a defense motion for summary judgment as to the “hourly” wages subclass “disparate impact” overtime claim. Plaintiffs appealed this ruling - which the district court certified as a final judgment under FRCP Rule 54(b) - and several other class-certification ruling. The Tenth Circuit affirmed. Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006).

The Circuit Court began with the class certification rulings, noting that interlocutory appeal of class certification orders may be granted only if sought within 10 days of entry of the order. Carpenter, at 1189 (citing FRCP Rule 23(f)). In this appeal, plaintiffs filed a motion for class certification, which the district court granted in part and denied in part. Almost a year later, plaintiffs filed a “Renewed Motion for Class Certification”; the motion was denied. A few months later plaintiffs filed a “Second Renewed Motion for Class Certification”; this, too, was denied and plaintiffs filed their Rule 23(f) application within 10 days thereafter. Id., at 1188. Boeing argued that the application was untimely, id., at 1189; the Circuit Court agreed and dismissed the application for lack of jurisdiction, id., at 1190-92.

Continue reading "Boeing Class Action Defense Case-Carpenter v. Boeing: Federal District Court Orders In Labor Law Class Action Decertifying Subclass And Granting Defense Motion For Summary Judgment Affirmed By Tenth Circuit" »

Posted In: Certification of Class Actions, Employment Law Class Actions, Class Action Court Decisions

As a resource for the class action defense lawyer who defends 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 administrative enforcement of the FCRA by the Federal Trade Commission:

§ 1681s. Administrative enforcement

(a) (1) Enforcement by Federal Trade Commission. Compliance with the requirements imposed under this title shall be enforced under the Federal Trade Commission Act [15 U.S.C. §§ 41 et seq.] by the Federal Trade Commission with respect to consumer reporting agencies and all other persons subject thereto, except to the extent that enforcement of the requirements imposed under this title is specifically committed to some other government agency under subsection (b) hereof. For the purpose of the exercise by the Federal Trade Commission of its functions and powers under the Federal Trade Commission Act, a violation of any requirement or prohibition imposed under this title shall constitute an unfair or deceptive act or practice in commerce in violation of section 5(a) of the Federal Trade Commission Act [15 U.S.C. § 45(a)] and shall be subject to enforcement by the Federal Trade Commission under section 5(b) thereof [15 U.S.C. § 45(b)] with respect to any consumer reporting agency or person subject to enforcement by the Federal Trade Commission pursuant to this subsection, irrespective of whether that person is engaged in commerce or meets any other jurisdictional tests in the Federal Trade Commission Act. The Federal Trade Commission shall have such procedural, investigative, and enforcement powers, including the power to issue procedural rules in enforcing compliance with the requirements imposed under this title and to require the filing of reports, the production of documents, and the appearance of witnesses as though the applicable terms and conditions of the Federal Trade Commission Act were part of this title. Any person violating any of the provisions of this title shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though the applicable terms and provisions thereof were part of this title.

(2) (A) In the event of a knowing violation, which constitutes a pattern or practice of violations of this title, the Commission may commence a civil action to recover a civil penalty in a district court of the United States against any person that violates this title. In such action, such person shall be liable for a civil penalty of not more than $2,500 per violation.

(B) In determining the amount of a civil penalty under subparagraph (A), the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.

(3) Notwithstanding paragraph (2), a court may not impose any civil penalty on a person for a violation of section 1681s-2(a)(1) of this title unless the person has been enjoined from committing the violation, or ordered not to commit the violation, in an action or proceeding brought by or on behalf of the Federal Trade Commission, and has violated the injunction or order, and the court may not impose any civil penalty for any violation occurring before the date of the violation of the injunction or order.

(b) Enforcement by other agencies.

Compliance with the requirements imposed under this title with respect to consumer reporting agencies, persons who use consumer reports from such agencies, persons who furnish information to such agencies, and users of information that are subject to subsection (d) of section 1681m of this title shall be enforced under

Continue reading "15 U.S.C. § 1681s – Administrative Enforcement: Statutory Provisions of the FCRA (Fair Credit Reporting Act) for Class Action Defense Attorneys" »

Posted In: FCRA Class Actions, Statutes & Rules

As a resource for class action defense attorneys who must defend against actions brought under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. The statutory provisions concerning obtaining information under false pretenses and concerning unauthorized disclosure by officers or employees are set forth in Sections 1681q and 1681r, respectively, as follows:

§ 1681q. Obtaining information under false pretenses

Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under title 18, United States Code, imprisoned for not more than 2 years, or both.

§ 1681r. Unauthorized disclosures by officers or employees

Any officer or employee of a consumer reporting agency who knowingly and willfully provides information concerning an individual from the agency's files to a person not authorized to receive that information shall be fined under title 18, United States Code, imprisoned for not more than 2 years, or both.

Posted In: FCRA Class Actions, Statutes & Rules

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 25 - August 31, 2006, and employment law cases regained sole possession of the top spot on the list. 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 16 involved labor law claims (46%). At least ten (10) of the employment law class action filings allege unpaid overtime (63% of the employment law class action filings and 29% overall). The only other group of class action claims that pass the 10% threshold are six (6) cases transferred by the Judicial Panel on Multidistrict Litigation (17%), MDL 06-1791, concerning the warrantless disclosure of customer telecommunications information.

Posted In: Class Actions In The News