Around the Blogosphere - Washington Legal Foundation files amicus brief in Cappuccitti
Here's a post from the Washington Legal Foundation blog regarding its recent filing of an amicus curiae brief in the Cappuccitti v. DirecTV litigation:
On August 18, 2010, WLF urged the U.S. Court of Appeals for the Eleventh Circuit to reconsider a recent panel opinion that would severely undermine the Class Action Fairness Act (CAFA). In a brief filed in Cappuccitti v. DirecTV, Inc., WLF argued that the panel’s decision to dismiss the case for lack of federal jurisdiction under CAFA was not only contrary to binding circuit precedent, but wholly subverts the plain text of CAFA, which looks only to the aggregated amount of the class’s claims and not at the individual amount of any particular claim. As detailed in WLF’s brief, the primary goal of CAFA was to expand federal jurisdiction over large, multi-state class actions that did not satisfy the traditional requirements for diversity jurisdiction.
Copies of the amicus brief and of the press release are included. Read the brief - it's very well done - enough so that we'll do a complete post focusing on it in the near future.
Posted By McGlinchey Stafford at 08:50 PM
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Around the Blogosphere: More Musings on Cappuccitti
The Blogosphere's been buzzing (relatively speaking) since the Eleventh Circuit's decision last month in Cappuccitti v. DirecTV. It's probably not up there with Lindsay Lohan getting out of jail or Levi Johnston breaking off the engagement to Bristol Palin (again), but we think it's hotter than either of those in the class action world. We promised to bring you more news and opinion as they become available, so here's a post from Andrew Trask at McGuire Woods, who publishes the Class Action Countermeasures blog, positing the idea that Cappuccitti will encourage forum shopping (we at the CAFA Law Blog agree, and have so stated). Take a look at Andrew's post:
CAFA Opinion Encourages Forum-Shopping - Cappuccitti v. DirecTV
Followers of this blog have probably noted (and probably with some chagrin) that I rarely discuss just-released cases, because I'm more interested in what we can learn about the strategies in a case than breaking the latest legal news. This case, though, is different, because last week the Eleventh Circuit released an opinion on jurisdiction under the Class Acton Fairness Act (CAFA) that is baffling in large part because it ignores the ways in which parties actually litigate a class action. [Read the rest of the post here.]
Posted By McGlinchey Stafford at 08:41 AM
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Around the Blogosphere: Commentary on Recent CAFA Decision (Cappuccitti v. DirecTV)
We told you this case was a big deal, and predicted that it would attract attention all over the country (no major crystal ball required for that prediction). We also told you that the CAFA Law Blog would try to bring you information on what was going on around the blogosphere about the Cappuccitti v. DirecTV Eleventh Circuit decision, and in keeing with that commitment, here's a commentary from Professor Adam Steinman of Seton Hall University School of Law with his thoughts on the "puzzling" decision rendered in Cappuccitti:
Commentary on Recent CAFA Decision (Cappuccitti v. DirecTV)
Last week the Eleventh Circuit issued a very significant (though a bit puzzling) decision on the 2005 Class Action Fairness Act (CAFA). The case is Cappuccitti v. DirecTV, Inc., No. 09-14107, ___ F.3d ___, 2010 U.S. App. LEXIS 14724, 2010 WL 2803093 (11th Cir. July 19, 2010), covered earlier here. One of CAFA’s most significant changes was an amendment to the diversity jurisdiction statute, codified at 28 U.S.C. § 1332(d), to authorize federal diversity jurisdiction over class actions for which there is (a) minimal diversity between the parties, and (b) an aggregate amount in controversy in excess of $5,000,000. Neither party in Cappuccitti disputed that federal subject matter jurisdiction was proper under § 1332(d); DirecTV's appeal challenged only the district court’s refusal to compel arbitration. But the Eleventh Circuit raised the jurisdictional issue sua sponte and dismissed the case entirely. It held that even if a class action’s aggregate amount-in-controversy exceeds $5,000,000, CAFA jurisdiction applies only if at least one class member’s claim exceeds the $75,000 threshold that applies for ordinary diversity jurisdiction under 28 U.S.C. § 1332(a). [Read the rest of the post here.]
Posted By McGlinchey Stafford at 07:00 PM
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Around the Blogosphere: What to do with Cappuccitti?
In keeping with our promise at the CAFA Law Blog to keep you up to date on what's happening in the world of the Class Action Fairness Act and particularly, last week's blockbuster decision by a panel of the Eleventh Circuit in the Cappuccitti v. DirecTV case, here's a blog post from the Carlton Fields' Class Action Blog posted by Matt Allen, a partner in the Tampa office of Carlton Fields who also chairs the firm's Class Action Task Force, in which he gives his opinion as to how Eleventh Circuit litigants should react to the decision: do nothing. Interesting reading. Take a look.
Posted By McGlinchey Stafford at 07:26 PM
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Around the Blogosphere - Eleventh Circuit Decision Threatens To Eliminate Federal Jurisdiction Over Most Consumer Class Actions, Undermining The Goals Of The Class Action Fairness Act
The Eleventh Circuit's decision last week in Cappuccitti v. DirecTV has already caused quite a stir aound the Blogosphere. We're going to bring you some of the commentary from other blogs over the next few days. Here's a post from the Mayer Brown site to whet your appetite:
| The US Court of Appeals for the Eleventh Circuit has just issued a decision that, if it is allowed to stand, will preclude federal jurisdiction over virtually all class-action lawsuits filed in, or removed to, federal courts within that circuit. In Cappuccitti v. DirecTV, Inc., the Eleventh Circuit held sua sponte that the Class Action Fairness Act of 2005 (CAFA) does not allow for jurisdiction over class actions unless the amount in controversy for at least one plaintiff (or class member) exceeds $75,000. So long as Cappucitti remains in force, federal courts in the Eleventh Circuit will lack jurisdiction over virtually all consumer class actions and similar types of employment class actions under state law, as individual plaintiffs in those actions typically have modest claims. That result would undercut the core purpose of CAFA—to ensure a federal forum for significant class actions—and could transform state courts in the Eleventh Circuit into magnet jurisdictions for class actions that (under Cappuccitti) cannot be removed. [Read the rest here.] |
Posted By McGlinchey Stafford at 07:04 PM
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Aound the Blogosphere: Class Action Confusion in the Eleventh Circuit
The blogosphere is humming (figuratively speaking) with the news of the Eleventh Circuit decision on Monday, July 19th in the Cappuccitti v. DirecTV litigation. The CAFA Law Blog has already posted a copy of the decision and a synopsis of the facts. We're working feverishly on some other posts with our critique of the decision and its possible effects on class action practice, so stay tuned. In the meantime, we're going to share some of buzz from Around the Blogosphere with you. Here's a teaser from Carlton Fields' Class Action Blog:
Yesterday, July 19, 2010, a three judge panel of the Eleventh Circuit issued Cappuccitti v. DirecTV, Inc., No. 09-14107 (11th Cir. July 19, 2010), a decision on the requirements of the Class Action Fairness Act of 2005 (“CAFA”) that injected mass confusion in Eleventh Circuit jurisprudence. For the first time, the panel ruled that class actions filed in federal court must satisfy the general diversity requirement that a plaintiff have $75,000 in controversy, along with the specific requirements of CAFA that minimal diversity be satisfied and an aggregate of $5 million for the entire putative class be in controversy.
The panel relied on cases construing the “mass action” portion of CAFA to reach its conclusion, even though a mass action is fundamentally distinct from a class action and contains separate requirements for federal court jurisdiction to be present. To our knowledge, no other court in the country has reached this conclusion outside the mass action context.
It is unclear from the decision whether the court intended its rationale to apply to diversity class actions removed to federal court as well as class actions originally filed in federal court by a plaintiff. There appears to be no basis in the decision for not applying the court’s rationale to removed cases.
Posted By McGlinchey Stafford at 07:36 AM
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Around the Blogosphere: Pharmaceutical Representatives Reap Millions as Whistleblowers
Around the Blogosphere: Pharmaceutical Representatives Reap Millions as Whistleblowers
Anytime we at the CAFA Law Blog see a post that has “millions” in the headline, we’re interested. Even though this post doesn’t directly relate to our bread and butter, the Class Action Fairness Act, we thought our readers might be interested in this post from the Class Action Blog describing some recent qui tam actions, with settlements in the 10-figure (yes, billions, with a “B”) range in the pharmaceutical industry in which the relator ended up with 7 and 8 figure fees. Interesting stuff – take a look.
Pharmaceutical Representatives Reap Millions As Whistleblowers
Posted by Jerome Noll
More so than ever, pharmaceutical companies are getting caught offering incentives to their sales representatives to advocate to medical providers to prescribe their medications for off-label use. That is, for use in treating various diseases which have not been approved by the Food & Drug Administration (“FDA”). As a result, a number of pharmaceutical representatives have reaped huge rewards from successful Qui-Tam actions which are lawsuits filed under the False Claims Act. [Read the rest of the post here.]
Posted By McGlinchey Stafford at 07:46 AM
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Around the Blogosphere - Judge in Circuit City Bankruptcy Denies Class Treatment of Proofs of Claim, Questions Whether Proofs of Claim Can Ever Be Filed on Account of Class of Creditors
We at the CAFA Law Blog have an interest in class actions in the bankruptcy courts and the wide variation on what the bankruptcy judges themselves think about their power to certify classes in and beyond their courts. Those of you who follow the issue know that different judges are all over the roadmap – from “I can certify anything anywhere” to “I can certify anything in my district” to “I don’t think I can certify a class, period.” Here’s an update on the Circuit City bankruptcy in which Eastern District of Virginia Bankruptcy Judge Kevin R. Huennekens observes "[c]onsiderable question persists as to whether class claims are ever permissible in bankruptcy . . .” and declines to answer the question. Take a look at the post, courtesy of the Corporate Restructuring & Bankruptcy Blog.
Last week, Judge Kevin R. Huennekens of the United States Bankruptcy Court of the Eastern District of Virginia entered an opinion refusing to apply Bankruptcy Rule 7023 to proofs of claim asserting claims against Circuit City Stores, Inc. and its affiliates on behalf of alleged classes of former employees. The four class action complaints, all filed in California state courts between 2002 and 2009, seek (1) "damages for conversion and for violations of the California Labor Code and Business and Professions Code" approaching $150 million and (2) injunctive relief against Circuit City on account of the alleged labor violations." A class has not been certified in any of the suits. Nonetheless, the proofs of claim filed by the named plaintiffs in the four suits seek to assert claims on account of the entire class of potential plaintiffs, including unnamed plaintiffs. As such, the named class claimants sought application of Bankruptcy Rule 7023, which provides for the application of Federal Rule of Civil Procedure 23 (which sets forth the requirements for filing a class action lawsuit in federal court), to the claims filing and objection process as it relates to their proofs of claim. [Here’s the rest of the post.]
Posted By McGlinchey Stafford at 06:29 PM
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Around the Blogosphere - The Heartburn (Litigation) Is Gone...For Now
Arnold & Porter’s Consumer Advertising Law Blog, reported late last week on the status of the long-running Nexium class action litigation – the plaintiffs and their counsel likely had terrible cases of acid reflux over the weekend after learning that U. S. District Judge Eduardo Robreno had granted AstraZeneca’s motion to dismiss for failure to state a claim. Take a look at the post by Randy Shaheen and John Eason.
The Heartburn (Litigation) Is Gone ... For Now
Posted by Randy Shaheen
AstraZeneca, maker of the blockbuster acid reflux drug Nexium, may have finally ended its five-year class action litigation battle with the Pennsylvania Employee Benefit Trust Fund, other third party payors, and individual plaintiffs. On May 6, 2010, in Pennsylvania Employee Benefit Trust Fund v. Zeneca, Inc., the US District Court of Delaware granted AstraZeneca's motion to dismiss plaintiffs' amended complaint for failure to state claims of consumer fraud, unjust enrichment, and negligent misrepresentation. The court's opinion, written by Judge Eduardo Robreno, is enlightening in its canvassing of several state consumer protection statutes and, in the process, detailing some nuanced distinctions in consumer protection law, such as the difference between a causation and reliance requirement and between a product purchased for "personal, family or household purposes" and for commercial purposes. It also underscores the high threshold for pleading causation and reliance in consumer fraud actions. [Here’s the rest of the post.]
Posted By McGlinchey Stafford at 06:03 PM
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Around the Blogosphere - Facebook Groups and Class Actions
OK, gang – this post from Sean Wajert over at the Mass Tort Defense Blog has something for everybody – parents griping about diaper rash on Facebook, which leads to a putative national class action against Procter & Gamble alleging that the new Pampers causes chemical burns. Most interesting to us at the CAFA Law Blog is how the parental “expert” opinions on causation through Facebook apparently spurred the litigation. Anyway, take a look at the post.
Facebook Groups and Class Actions
Posted on June 4, 2010 by Sean Wajert
Plaintiffs have sued the Procter & Gamble Co. in a proposed national class action, alleging that new Pampers diapers containing “Dry Max” technology is causing rashes and "chemical burns" in some infants. See Clark, et al. v. Procter & Gamble Co., No. 10-301 (S.D. Ohio, 5/11/10). Plaintiffs seek reimbursement for the cost of diapers, as well as for alleged medical expenses and treatment. The plaintiffs allege that P&G knew or should have known that the diapers with Dry Max technology could harm kids' bottoms. They assert causes of action for breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, violation of consumer fraud acts, negligence, unjust enrichment, and strict liability. Then came word that the Consumer Product Safety Commission would review consumer complaints regarding Pampers with the new Dry Max technology. [Here’s the rest of the post.]
Posted By McGlinchey Stafford at 06:49 PM
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Around the Blogosphere: The Supremes Decide No Agreement, No Class Arbitration
The U. S. Supreme Court applied an ancient Chinese maxim to a class arbitration entitlement questions in an opinion issued earlier this week: “No tickee, no washee.” Or something like that. Anyway, here’s the scoop from Stanford law student Vivian Wang on the SCOTUS Blog.
Stolt-Nielson S.A. v. AnimalFeeds International (08-1198)
In Stolt-Nielsen v. AnimalFeeds (No. 08-1198), the Supreme Court held that the Federal Arbitration Act prohibits arbitrators from imposing class arbitration on parties who have not agreed to authorize class arbitration. Justice Alito authored the majority opinion, which was joined by the Chief Justice and Justices Thomas, Kennedy, and Scalia. Justice Ginsburg filed a dissenting opinion that was joined by Justices Stevens and Breyer. Justice Sotomayor did not participate in the case. [Here’s the rest of the post.]
Posted By McGlinchey Stafford at 04:13 AM
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Around the Blogosphere: Federal Court Passes on Condom Suit, Deferring to FDA's Primary Jurisdiction
OK, so this doesn’t really have anything to do with CAFA, but hey – how many times do we have an opportunity to pass on a legitimate post about condoms? This may, in fact, be the first time in our five-year history. So, as a public service, we’re referring you to Russell Jackson’s post over at the Consumer Class Actions & Mass Torts blog on the Trojan-Enz litigation, rather than make sophomoric jokes (as we’re sometimes prone to do). Hey, this is stuff you really need to know. Here’s the post.
Federal Court Passes on Condom Suit, Deferring to FDA's Primary Jurisdiction
Posted on April 7, 2010 by Russell Jackson
When I teach Product Safety and Liability, I often find that one of the most difficult questions to answer is who -- or really, what branch of government -- should be making a decision on a particular issue. Institutionally, courts have inherent limitations. They work within the confines of actual disputes between individuals; they are not legislators and have no broad factfinding powers. They often have limited capabilities when it comes to questions of science and require expert testimony. And when the causes of action at issue allow for a jury trial, a group of individuals who are "scientifically challenged" may be the ones actually charged with finding the facts. [Here’s the rest of the story . . .]
Posted By McGlinchey Stafford at 04:30 AM
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Around the Blogosphere: Wells Fargo Class Action Defense Cases-Martinez v. Wells Fargo: Ninth Circuit Court Affirms Dismissal Of Class Action Holding RESPA and UCL Claims Preempted By National Bank Act
Here’s an interesting post from Michael Hassen at the Class Action Defense Blog on a recent Ninth Circuit case involving RESPA and California UCL claims and preemption. Take a look:
Plaintiffs filed a putative class action against Wells Fargo alleging violations of the federal Real Estate Settlement Procedures Act (RESPA) and California’s Unfair Competition Law (UCL); specifically, the class action complaint alleged that Wells Fargo violated RESPA’s prohibition against “unearned fees” by “overcharging” its customers, and that “Wells Fargo’s conduct was ‘unfair,’ ‘fraudulent’ and ‘illegal,’ all in violation of the UCL.” Martinez v. Wells Fargo Home Mortgage, Inc., ___ F.3d ___ (9th Cir. March 9, 2010) [Slip Opn., at 3763, 3767]. According to the allegations underlying the class action complaint, Wells Fargo charged plaintiffs an $800 underwriting fee in connection with refinancing their home loan. [Read the rest of the post here . . .]
Posted By McGlinchey Stafford at 04:07 AM
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Around the Blogosphere: Seventh Circuit Mandates Daubert Ruling Before Class Certification
Here’s another take on the Seventh Circuit’s ruling in Honda Motor v. Allen case that came down last week - this time, from Barry Barnett over at Blawgletter.
Seventh Circuit Mandates Daubert Ruling Before Class Certification
A panel of the Seventh Circuit extended the court's status as the circuit that puts the most hurdles in the way of class certification under Rule 23 of the Federal Rules of Civil Procedure. It held that district courts "must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling on a class certification motion. Am. Honda Motor Co., Inc. v. Allen, No. 09-8052, slip op. at 6 (7th Cir. Apr. 6, 2010) (per curiam).
The appeal involved the question of whether an expert for the plaintiffs met the requirements of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Rule 702 of the Federal Rules of Evidence.
The expert opined that Honda motorcycles wobbled too much. The district court doubted the reliability of the conclusion, but chose not to strike it and instead, granted a motion to certify a class of Honda owners.
The Seventh Circuit ruled that the court couldn't demur on Honda's Daubert challenges before granting certification, that Daubert principles required exclusion of the wobbling motorcycle expert's views, and that the district court erred in overruling Honda's objections and in certifying a class.
Posted By McGlinchey Stafford at 04:09 PM
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Around the Bogosphere: District Courts May Need to Conduct Full Daubert Inquiry Before Class Certification Decision
In keeping with the CAFA Law Blog's commitment to poke around the blogosphere and bring you readers items of interest to the Class Action practitioner, here's an interesting post from the Mass Tort Defense Blog regarding last week's Seventh Circuit decision in the American Honda v. Allen case related to expert testimony as part of the certification decision and the need for the district court to take on the "tough questions." Enjoy.
American Honda Motor Co., Inc. v. Allen, 2010 WL 1332781 (7th Cir., April 7, 2010).
District Courts May Need to Conduct Full Daubert Inquiry Before Class Certification Decision
Posted on April 13, 2010 by Sean Wajert
The Seventh Circuit issued a very interesting opinion on the interplay of class certification and Daubert issues. American Honda Motor Co., Inc. v. Allen, 2010 WL 1332781 (7th Cir. April 7, 2010). Specifically, the defendant asked the court to resolve whether the district court must conclusively rule on the admissibility of an expert opinion prior to class certification when that opinion is essential to the certification decision. Since this is the type of question that Rule 23(f) was designed to address, the court of appeals took the appeal -- and agreed with Honda.
Plaintiffs were purchasers of Honda's Gold Wing GL1800 motorcycle; they alleged that the motorcycle has a design defect that prevents the adequate dampening of “wobble,” that is, side-to-side oscillation of the front steering assembly. Plaintiffs moved for class certification pursuant to Rule 23(b)(3). [Read the rest of the entry.]
Posted By McGlinchey Stafford at 04:47 AM
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Around the Blogosphere - CSPI Lacks Standing to Sue Bayer over Vitamins with Selenium
As we were poking around the blogosphere today looking for all things class action-wise (instead of doing productive work), we came across this post from Russell Jackson at the Consumer Class Actions & Mass Tort Blog, and being the kind and generous souls we are, we wanted to share it with our faithful readers. Soooo, here you go, Russell Jackson's blog post, CSPI Lacks Standing to Sue Bayer over Vitamins with Selenium
Posted By McGlinchey Stafford at 04:38 PM
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Around the Blogosphere - Federal Court Dismisses Device "Consumer" Claims
Posted By McGlinchey Stafford at 04:22 PM
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Cliffnote: Shady Grove for Class Action Practitioners
Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Company, ___ U. S. ___, No 08-1008 (March 31, 2010)
OK - this decision isn't about the Class Action Fairness Act, but it's important nevertheless in the class action world. At least you need to know a little something about it. Like it's the latest, modern-day take on Erie or something like that. Short version - federal Rule 23, not the states, controls the issue of when a class action may be filed in federal court, and thus, a state doesn't have the authority to limit a right to sue.
Longer version - take a look at the synopsis from Scotus Wiki by Lyle Denniston and the SCOTUSblog team. Or Lyle's post with an analysis of the decision. both are worth the time and effort. Besides, you can then impress your friends at the next neighborhood cocktail party with your wit and insight (they already know about your charm) when you casually mention the split on the court, and how Justices Scalia, writing for the majority, and Stevens, concurring in part, may have set the tone, but that Justice Ginsburg might have carried the day had she narrowed her opinion only slightly. Or you can talk about sex, the weather, sex, politics, sex, health care reform, sex, the Final Four, sex, the children (or grandchildren) or sex. We know what faithful CAFA Law Blog followers would rather talk about . . . (Editor's Note: the now famous "wet t-shirt" post still ranks as our all-time most popular post, measured by number of hits. Go figure. And we thought our readers really liked CAFA. Huh.)
Posted By McGlinchey Stafford at 04:49 AM
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Around the Blogosphere: Seventh Circuit Decides FDCPA Class Claims and Offers Survey Guidance
The Mass Tort Defense Blog has a good post this week on the Seventh Circuit decision on the FDCPA in Dekoven v. Plaza Associates, with an interesting twist on certification-related expert testimony. Take a look.
Seventh Circuit Decides FDCPA Class Claims And Offers Survey Guidance
The Seventh Circuit recently issued an interesting decision in two consolidated consumer cases. Dekoven v. Plaza Associates, Nos. 09-2016, 09-2249 (7th Cir. 3/17/10). In the two closely related class action suits under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p, which the appeals court had consolidated for decision, the plaintiffs complained about dunning letters sent to them by the a debt collection agency. What is most interesting to our readers is not the Fair Debt Collection Practices Act issues, perhaps, but the court's guidance on survey evidence. In both cases the district court had entered summary judgment in favor of defendant after rejecting the survey evidence prepared by the plaintiffs’ expert witness . . .
Posted By McGlinchey Stafford at 04:17 AM
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