Class Action Fairness Act Blog

We're Not Worthy - CAFA Loser Style.

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Mon, 17 Nov 2008 06:30:00 -0600

Every corner of history is littered with famous losers. Who can forget ‘em?

Famous movie losers?

How about that dude who got his face kicked by a temporarily blinded Jean-Claude Van Damme in Bloodsport?

Or even better, what about the Cobra-Kai dude that got popped, by Ralph Machio for God’s sake, in Karate Kid?

Famous sports losers?

A nod to a fellow blogger; you can’t have a conversation about greatest losers without discussing the Loveable Loser Cubs.

Societal losers?

Where do we begin? Dewey!

Mondale/Ferraro!

Click here to see the oh - so close electoral college map.

The New Kids … and their hair!

Well, believe it or not, even some CAFA cases are Losers; and they don’t even deserve a post all of their own. As you know we cover "all things CAFA." We review hundreds of cases looking for CAFA cases for us to digest and post for you, our smart, sexy readers. However, we run across cases in which CAFA is only tangentially related. We collect those cases, and put them in our "Not Worthy" of a post category.

Here they are- the CAFA Losers for the quarter:

Stalnaker v. Allstate Ins. Co., 2008 WL 2945609 (D.Colo.

Hunt v. U.S. Tobacco Co., --- F.3d ----, 2008 WL 2967249 (3rd Cir.(Pa.), Aug 05, 2008

Wixon v. Wyndam Resort Development Co., Slip Copy, 2008 WL 2873326 (N.D.Cal., Jul 23, 2008)

In re Zyprexa Products Liability Litigation, Slip Copy, 2008 WL 2696916 (E.D.N.Y., Jul 02, 2008)(

In re HP Power Plug and Graphic Card Litigation, 2008 WL 2697192, *1

Harvey v. U.S. Life Ins. Co. in City of New York, Slip Copy, 2008 WL 2805608 (E.D.Pa., Jul 18, 2008)(NO. CIV. A. 08-2175)

Eufaula Drugs, Inc. v. TDI Managed Care Services, --- F.Supp.2d ----, 2008 WL 2568453 (M.D.Ala., Jun 25, 2008)(NO. 2:05-CV-293-MEF)

Bouaphakeo v. Tyson Foods, Inc., --- F.Supp.2d ----, 2008 WL 2645759 (N.D.Iowa, Jul 03, 2008)(NO. C 07-4009-MWB)

Attend College in your PJ's!!!!!

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Fri, 14 Nov 2008 06:30:00 -0600

Well, not exactly like the commercial we all see while watching re-runs of Seinfeld at 1:00 a.m., but very close. You can learn about the emerging trends in multi-state class actions from the plaintiff and defense bars from the comfort of your office. A 90 minute CLE teleconference will be held on December 9, 2008, from 1:00 – 2:00 p.m. Eastern that according to our friends at Strafford Publications should answer the following questions:

What are the new pleading strategies plaintiffs' counsel have employed to embrace or avoid CAFA?
What are the prevailing defense counsel perspectives on the continued viability of multistate class actions post-CAFA?
What settlement strategies have proven successful since CAFA’s passage?

How do you register? Simply click here .

What to do next? Sit back, enjoy and try to get a better night’s sleep – Seinfeld also comes on at 6:00 p.m.!

Plaintiff Sues Whirlpool over Washing Machines; Whirlpool Gives CAFA Removal a Spin; Court Says Plaintiff's Motion to Remand is All Washed Up

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Thu, 13 Nov 2008 06:30:00 -0600

Glazer v. Whirlpool Corp., No. 1:08-CV-1624, 2008 WL 4534131 (N.D. Ohio Oct. 6, 2008).

The moral of this story is, if you sue for “repair or replacement” of products with a collective retail replacement value of substantially more than $5 million, the CAFA amount-in-controversy requirement may well be met.

In Glazer, the plaintiff filed suit in state court, alleging that every Whirlpool Duet Sport Front-Loading washing machine sold in Ohio since 2004 had a defect and asked that Whirlpool repair or replace each machine.

Whirlpool removed the case to federal court under the Class Action Fairness Act. Apparently ‘agitated’ by the removal, the plaintiff moved for remand.

Whirlpool produced evidence that the cheapest Duet washing machine retailed for $699 and that 21,765 Duet washing machines had been wholesaled in Ohio during the relevant time period. According to Whirlpool, this meant that there was a “theoretical maximum amount in controversy” of more than $15 million, well more than the $5 million amount in controversy needed to shift things over to the federal laundromat under CAFA.

The plaintiff tried to pour cold water on this, arguing that wholesale numbers did not necessarily equal actual washing machine sales in Ohio and that the retail price might not accurately reflect the appropriate compensatory damages. The plaintiff said that Whirlpool’s wholesale-times-retail calculation failed to meet Whirlpool’s burden of proving by a preponderance of the evidence that there was $5 million in controversy.

The court preferred Whirlpool’s spin on the issue. The court found that the wholesale number was factual evidence and not a mere allegation, and found that a fair reading of the suit revealed an allegation of defects in all of the machines and a claim for repair or replacement of all the machines.

By combining its evidence with a fair reading of the plaintiff’s complaint, Whirlpool carried its burden and established that it was more likely than not that the amount in controversy exceeded $5 million. Because minimum diversity and class size were uncontested, the court found that it had subject matter jurisdiction under CAFA, and so it hung the plaintiff’s remand motion out to dry.

Aviation Cabin Cleaning Company Filed Sloppy Notice of Removal

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Wed, 12 Nov 2008 06:30:00 -0600

Navarro v. Servisair, LLC, 2008 WL 3842984, Case No. C-08-02716-MHP (N.D. Cal. Aug. 14, 2008)

The plaintiff filed a class action against his employer, Servisair, LLC (“Servisair”), in the Superior Court of California for the County of San Francisco, alleging inadequate compensation under the California Labor Code. Servisair provides aviation ground services including airline ramp services and cabin cleaning. All of the putative class members were employed in California.

Servisair removed the case to the Northern District of California, alleging federal question jurisdiction based on preemption of state law claims and diversity jurisdiction under CAFA. In the notice of removal, Servisair, which is a limited liability company failed to allege the residence of each of its members, and instead, treated itself as a corporation when alleging diversity, prompting the plaintiff to try to nose dive back into state court with a motion to remand.

In the motion to remand, the plaintiff argued that Servisair (1) failed to demonstrate that each member of the LLC was diverse from the putative class members, and (2) did not provide a factual basis for concluding that the amount in controversy under CAFA was met.

The Court found that both federal question jurisdiction and diversity jurisdiction under CAFA were present. With respect to CAFA jurisdiction, Servisair presented evidence in its opposition brief that neither of the two holding companies that owned Servisair held any tangible property or generated any revenue apart from their interest in Servisair and that neither had any employees. Servisair also argued that its members’ business operations did not “predominate” in California. The Court found no evidence to the contrary.

The plaintiff argued that since Servisair did not provide evidence of diversity until after the expiration of the thirty-day removal period, removal was time-barred and prohibited. The Court agreed with the plaintiff that the Notice of Removal was deficient, but held that, since diversity did in fact exist, it would consider Servisair’s opposition to the motion to remand as an “amendment” to its notice of removal. In order to dissuade sloppy drafting, however, the Court awarded the plaintiff the attorneys’ fees and costs associated with the motion to remand. Hopefully, Servisair’s cleaning services are not as sloppy as its removal drafting!

Want a Stock Tip? Be Wary of Viatical Settlement Investments, At Least If You're Trying To Remove under CAFA.

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Mon, 10 Nov 2008 06:30:00 -0600

Coit v. Fidelity Assurance Associates, LLC, 2008 WL 3286978 (N.D.Cal. Aug. 6, 2008).

Coit, a California resident, purchased interest in three viatical life insurance policy investments from the defendants (Editors’Note—we see you scratching your head. It’s ok, we’ll save you the time of hitting up Google. It has nothing to do with the Vatican. A viatical investment is the purchase of the death benefits of an insurance policy covering an individual (a/k/a a viator) whose life expectancy, whether through age or serious illness, is greatly diminished. Now you know.) While the opinion is not exactly clear what happened after Coit bought the viatical investment, given that a suit was filed, our penchant for deductive reasoning leads us to believe that things didn’t go so well for Coit’s investment.

In the class complaint, Coit sought damages from the defendants under a host of state law theories, claiming that the defendants: (1.) were not licensed to sell the investments; (2.) concealed the risk of the investments; (3.) failed to disclose adverse tax consequences associated with the investments; (4.) obtained fraudulent medical reports on the life expectancy of the viators; (5.) engaged in misleading advertising; and (6.) sold securities that were not qualified under California Law. In the complaint, Coit made no allegation as to the amount in controversy, and she made no mention of the size of the putative class.

The defendants removed the case to the Northern District of California under CAFA. Coit quickly filed for remand. In her motion to remand, Coit argued two grounds. First, Coit asserted that the threshold CAFA requirements of $5,000,000 in controversy and a class of 100 or more were not present. Second, in the alternative, Coit argued that, even if the threshold requirements were met, the case fell under the “securities” exception at 1332(d)(9).

At the outset, the court (citing Lowdermilk and Abrego) placed the burden of proving the threshold requirements on the defendants. From there, it was all downhill for the defendants. (Editors’ Note: See the CAFA Law Blog analysis of the Lowdermilk case from the 9th Circuit posted on July 30, 2007. See the CAFA Law Blog analysis of Abrego posted on May 25, 2006. You know exactly how we feel about this burden of proof issue. If not, see our law review article on the subject).

In the notice of removal, the defendants argued that, if at least 35 potential class members had purchased viatical investments of at least $166,000, then the amount in controversy would exceed $5,000,000. Unfortunately for the defendants, the calculation was only a hypothetical and was not backed up by any real evidence. Relying on Abrego and Lowdermilk, the court determined that, absent any evidence to back up the defendants’ theoretical calculation, the defendants had failed to meet their burden for establishing the amount in controversy.

After debunking the defendants’ $5,000,000 in controversy assertion, the Court decided to go for the sweep and turned its attention to the 100 member class requirement. In the notice of removal, the only mention of a potential class size came in the hypothetical used to support the defendants’ calculation of the amount in controversy—35 (we’re no math whizzes, but we’re pretty sure that 35 is just a tad short of 100). However, the defendants attached an affidavit to their opposition to the motion to remand stating that 106 California residents purchased the settlements. No additional information or documentation was provided to back up the 106 person class figure. Relying again on Lowdermilk, the court found that the defendants failed to meet their burden of proof on the class size. Based on the defendants’ failure to meet their burden on the amount in controversy and class size, the court granted the motion to remand without considering the plaintiff’s claim that the case fell under CAFA’s “securities exception.”

At that point, the defendant declared that "Coit interrupted us."

Forgotten How to Sign Up or Post a Comment on the CAFA Law Blog?

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Fri, 07 Nov 2008 06:30:00 -0600

Just a friendly reminder in case you have just woken up from a bad dream about global recession and you have forgotten how to use all the really cool functions of the CAFA Law Blog.

The CAFA Law Blog is designed to be interactive, and to allow you to respond immediately and easily to our posts with questions or comments, through the “Post A Comment/Question” buttons at the bottom of each post. The CAFA Law Blog further invites you to “Contact Us,” through the button found on the top tool bar, with questions or comments, or to submit articles, which you believe may be of interest to CAFA Law Blog or its readers.

The “Word Search” button found in the right hand column menu list, allows you to search CAFA Law Blog’s contents and hundreds of posts through word searches.

You can electronically receive new articles on CAFA Law Blog immediately when they are posted, without the need for you to check for new posts on the site itself. The CAFA Law Blog’s email notification system, available through the “Subscribe By Email” feature found in the right hand column menu list, allows you to subscribe to the CAFA Law Blog and receive immediate notice of new posts – sent to your email address – containing one?click links directly to those new posts. New CAFA Law Blog posts may also be syndicated or “pushed” to you through an RSS “news-feed” reader on your computer, available through the “Subscribe By RSS” feature found in the right hand column menu list.

No Dropped Call When Amount in Controversy Satisfied in California Cell Phone Case.

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Thu, 06 Nov 2008 06:30:00 -0600

Valikhani v. Qualcomm Incorporated, 08-cv-786 WQH JMA (S.D. Cal. August 21, 2008).

Qualcomm defeats motion to remand in S.D. Cal. by producing evidence of amount in controversy.

On April 18, 2008, the plaintiff filed a class action lawsuit against Qualcomm in California state Superior Court in San Diego, California. On April 30, 2008, Qualcomm removed the case to the Southern District of California under the provisions of CAFA. On May 16, 2008, the plaintiff filed his motion to remand the case back to California State Court.

The case surrounded allegations that Qualcomm did not license its wireless communication related patents in a fair, reasonable, and non-discriminatory manner. The Complaint also alleged that Qualcomm charged supra competitive prices for goods and licenses not related to its patents in wireless communication.

The plaintiff filed the suit on behalf of himself and others similarly situated alleging that Qualcomm acquired monopoly power by intentionally misrepresenting its patented licensing procedure. The plaintiff and his class members alleged that they have sustained anti-trust injuries from Qualcomm’s actions including artificially and unreasonably increased costs for cellular devices.

The Court began its opinion by outlining CAFA’s jurisdictional provisions and highlighting that the burden of establishing removal jurisdiction under CAFA in on the proponent of federal jurisdiction by citing Abrego. (Editors' Note: See the CAFA Law Blog analysis of Abrego posted on May 25, 2006, and you avid readers know our position on who bears the burden of proof, but if you have forgotten or if you are new, see our law review article on the subject).

The issue before the Court was whether Qualcomm had established the requisite five million dollar amount in controversy under CAFA. Qualcomm argued that the Complaint’s allegations made the amount in controversy facially apparent, particularly considering the size of the alleged classes and the fact that the plaintiffs sought treble damages, injunctive relief and attorneys fees.

The Court cited Guglielmino noting that a party must establish by a preponderance of the evidence that the plaintiff class members seek more than five million dollars. (Editors’ Note: See the CAFA Law Blog analysis of Guglielmino posted on November 6, 2007).

The Complaint alleged that one of the purported classes consisted of at least 76 million people. Qualcomm submitted evidence that its licensees earned over $2.5 billion on the sale of its licensed devices in the United States with total revenues of $2.77 billion. That sounds like it is just over the $5 million threshold, wouldn’t you say?

The Court concluded that Qualcomm had established that it was more likely than not that the the plaintiff class members sought greater than five million dollars in the case. The Court stated that the plaintiffs sought damages for a class of approximately 76 million members and injunctive relief related to defendant’s multi-billion dollar patent licensing business. The injunctive relief requested would itself be in excess of five million dollars and in addition to the other claims for restitution, treble damages, and attorneys fees the amount in controversy was more likely than not more than five million dollars.

The Critics Are Right; Video Games Are Dangerous To Your Health.

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Wed, 05 Nov 2008 06:30:00 -0600

Broquet v. Microsoft Corp., _____ F. Supp. 2d ______, 2008 WL 2965074 (S.D. Tex)

According to a study that will be featured in the Journal of Adolescent Health, "Exposure to violent electronic media has a larger effect than all but one other well known threat to public health." And what exactly is that threat, you ask? "Cigarette smoking." But you know what is REALLY dangerous? Smoking Video Games.

So says the plaintiff in Broquet v. Microsoft Corp. In August 2006, Bonnie Broquet filed suit in Texas state district court on behalf of her daughter who suffered injuries from a fire allegedly resulting from a defective Xbox. Apparently, the Xbox had a wee power chord issue that resulted in a nationwide recall. Daddy Amador Lazo intervened in the action on behalf of him and the siblings and then filed a class action on behalf of all Xbox customers.

Microsoft removed to federal court because, well, you know how much Microsoft loves federal court. Predictably, the plaintiffs moved to remand.

The plaintiffs and intervenor Daddy argued there was no jurisdiction under CAFA because the class was less than 100 members. Daddy defined his class as “each and every such Microsoft Xbox owner within the recall and defect at issue for the years made the subject of the recall.” The plaintiffs agreed that all owners of Xbox within the recall would be well over 100. The plaintiffs and intervenor Daddy claimed, however, that the class only consisted of owners of the Xbox that suffered a life threatening situation.

In my view, that class would also include any persons that owned an Xbox and Tiger Woods Golf and any persons living with the fore mentioned persons when they EIGHT putt in a video game. Although the District Court did not take up that issue, ALTHOUGH IT IS A VALID POINT, it agreed, with not much explanation, that the class exceeded 100, thus giving the federal court jurisdiction.

Hmmmm. Now that I think about it, a class action against Tiger Woods for the mental anxiety he causes untold millions of video gamers. Just think of it. How many people play that game? Shoot, we would be removed for sure. And I live in the Southern District of Texas. They would probably not be so sympathetic to my cause. But maybe I could notice up Tiger Woods depo before I am poured out of court. That would be cool! He is not doing much right now. I diverge.

The Court noted the kind of sticky point that Daddy, as class representative, was not a member of the class because he did not own the Xbox at issue and thus was not within the recall. Whether a class can be certified and Daddy could be the class representative was irrelevant to the determination of the Court’s jurisdiction under CAFA.

The Court also dismissed as irrelevant the issue of federal court jurisdiction under CAFA of Daddy’s request to amend his petition and drop the class action allegations. The Court stated that its analysis of jurisdiction is based on the operative pleadings at the time of removal.

Interestingly, after the Court denied the motion to remand, Daddy amended his petition and “corrected” the allegations of class now “clarifying” that the class included only persons similarly situated to Daddy, that is, persons who have relatives injured by an Xbox subject to the recall. The plaintiffs (representing the injured child) filed a motion to reconsider the motion to remand arguing that the child was not injured by the same Xbox defect that was the subject of the recall. The Court denied the motion for reconsideration and the 5^th Circuit denied the request to appeal by both the plaintiffs and Intervenor Daddy.

S. Tolson

Dow Chemical Cannot Get Removal Under CAFA to Stick.

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Tue, 04 Nov 2008 06:30:00 -0600

Cannon v. Dow Chemical Co., 08-1397 (E.D.La. June 2, 2008)

It makes INSTA STIK polyurethane roof adhesive, Dow Epoxy, and HYPOD™ Polyolefin Dispersions, but Dow Chemical cannot get removal to stick under CAFA.

The plaintiffs filed a putative class action asserting Dow Chemical released harmful chemicals from a facility in Taft, Louisiana. In their complaint, the plaintiffs did not identify the chemical substances allegedly released, nor did they specify the offending effects produced by these substances. Furthermore, no dollar value was attributed to these tort claims. The class was limited to “all persons and entities located on the west bank of St. Charles Parish on February 9, 10 or 11, 2008 and who sustained property damage, personal injuries, emotional, mental or economic damages and/or inconvenience or evacuation as a result of the incident.”

Both the plaintiff and Dow Chemical stipulated that the first two prongs for jurisdiction under CAFA were met ((1) a class of no fewer than 100 members; (2) minimal diversity between the parties).

Because the plaintiff’s complaint was hazier than any chemical Dow makes, Dow faced an uphill battle convincing the court, however, that jurisdiction under CAFA was proper.

The court relied on Patterson v. Dean Morris, L.L.P., 448 F.3d 736, 739 (5th Cir.2006) for the “well-established rule” that the proponent of removal bears the burden of persuasion under CAFA. Dow attempted to argue that the Court could “assume” what possible damages might be based upon “population estimates.” (Editors' Note: See the CAFA Law Blog analysis of Patterson posted on June 6, 2006).

Also, the court cited Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir.2007), noting that under CAFA, a court should not engage in speculation without the benefit of any actual evidence. Because any proposed number of the class would be based upon speculation at this point in the case, and the plaintiffs had not plead any specific damages or how those damages may be calculated, it denied jurisdiction under CAFA. (Editors' Note: See the CAFA Law Blog analysis of Lowery posted on May 15, 2007).

So in short – remember that it matters not what products you make – or how sticky they are – it matters what facts you can prove to get jurisdiction under CAFA.

Does Palin know CAFA? You Betcha! Thanks to the 2007 University of Pennsylvania Law Review Symposium and Accompanying Articles.

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Mon, 03 Nov 2008 06:30:00 -0600

Sure, we know, we know! Old Joe may know foreign policy, and O may know health care, and Mac may even know cutting congressional earmarks, but Palin knows CAFA! You know how we know, because this hockey-mom pulled off the CAFA hat-trick:

“Do I know CAFA? You betcha I do! I know (1) the statute, (2) the history, and (3) the impact, and I know all of this thanks to the University of Pennsylvania Law Review Symposium from 2007, Fairness to Whom? Perspectives on the Class Action Fairness Act of 2005.”

[The veracity of this direct quote cannot be verified, and in fact comes from one of our less reliable bloggers who smells of cabbage and liquor. But, the editorial staff is willing to bet that the substance is indeed attributable to Sarah Palin, or maybe Tina Fey, or maybe Sarah Baylin (the proprietor of Sarah’s Liquor Lodge).]

While you can’t attend the symposium now, the papers that comprised the discussion can be found in the University of Pennsylvania Law Review. We encourage you to check them out [listed below] and learn more about topics ranging from the history of the statute, its effect on jurisdictional questions, federalism, and settlements.

THE CLASS ACTION FAIRNESS ACT OF 2005 IN HISTORICAL CONTEXT: A PRELIMINARY VIEW, 156 U. Pa. L. Rev. 1439 (2008)

CAFA JUDICATA: A TALE OF WASTE AND POLITICS, 156 U. Pa. L. Rev. 1553 (2008)

CAFA'S IMPACT ON CLASS ACTION LAWYERS, 156 U. Pa. L. Rev. 1593 (2008)

THE IMPACT OF THE CLASS ACTION FAIRNESS ACT ON THE FEDERAL COURTS: AN EMPIRICAL ANALYSIS OF FILINGS AND REMOVALS, 156 U. Pa. L. Rev. 1723 (2008)

ASSESSING CAFA'S STATED JURISDICTIONAL POLICY, 156 U. Pa. L. Rev. 1765 (2008)

THE CLASS ACTION FAIRNESS ACT IN PERSPECTIVE: THE OLD AND THE NEW IN FEDERAL JURISDICTIONAL REFORM, 156 U. Pa. L. Rev. 1823 (2008)

LESSONS IN FEDERALISM FROM THE 1960S CLASS ACTION RULE AND THE 2005

CLASS ACTION FAIRNESS ACT: "THE POLITICAL SAFEGUARDS" OF AGGREGATE TRANSLOCAL ACTIONS, 156 U. Pa. L. Rev. 1929 (2008)

CAFA SETTLEMENT NOTICE PROVISION: OPTIMAL REGULATORY POLICY?, 156 U. Pa. L. Rev. 1971 (2008)

FEDERAL JURISDICTION AND DUE PROCESS IN THE ERA OF THE NATIONWIDE CLASS ACTION, 156 U. Pa. L. Rev. 2035 (2008)

OVERRULING ERIE: NATIONWIDE CLASS ACTIONS AND NATIONAL COMMON LAW, 156 U. Pa. L. Rev. 2135 (2008)

COMMENTARY ON CLASS SETTLEMENTS UNDER ATTACK, 156 U. Pa. L. Rev. 2143 (2008)

Free Gift From CAFA Law Blog and ACI for Our Smart, Sexy Readers

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Fri, 31 Oct 2008 06:30:00 -0600

Don’t say CAFA Law Blog never did anything for you. Other than making class action litigation a laughing matter, and that is no easy task!

Now you can attend a CLE at a cool location for a cool price. ACI is offerings a $500 discount to all CAFA Law Blog readers who sign up by November 21. First Up:

American Conference Institute’s 8^th Annual Conference on Consumer Finance Class Actions & Litigation, January 26-28, 2009 at the Affinia Manhattan Hotel in New York. Click here for the agenda. The essential defense forum that shapes the future of litigation strategies in the consumer finance industry.

That makes it sound like something big is going on in that area. You may have heard a little something in the news about changes in the consumer finance industry. Big changes are a commin’ for financial institutions and their legal counsel.

The event features a faculty of leading outside litigators, renowned jurists, and 24 senior in-house counsel from these companies: American Express • American General Finance • Bank of America • Capital One • Citi • Countrywide • Discover • GMAC • Greenpoint • First Data • Freddie Mac • Hyundai • iQor • MasterCard • Sovereign Bank • TCF National Bank • UBS • Wachovia • Wells Fargo

They will help you:

· DRAFT arbitration provisions that are effective in avoiding class treatment

· REASSESS litigation and preemption strategies as a result of increased investigations and enforcement actions by states and municipalities against lenders

· RESPOND to the latest TILA and UDAP inadequate disclosure claims

· DEFEND against allegations that unsuitable loans were made by lenders/brokers

· COUNTER claims based on predatory/unconscionable/improvident lending

· APPLY lessons learned from recent RESPA case law to prevent and cure errors when managing transactions

· USE recent and emerging FCRA litigation developments, including the “willfulness” issue, to your advantage when defending cases

· LITIGATE consumer class actions involving bankruptcies and foreclosures

· MINIMIZE litigation risks of using autodialers and prerecorded messages in collection activities

· DIRECT an adequate response to a data breach and the myriad details that ensue

Wow, I’m exhausted just thinking about doing all that work.

Additional details and registration information are available at www.AmericanConference.com/CFCA or by calling 888-224-2480.

If you register by or before November 21, you can save $500 off the full conference tuition price ($1695 instead of $2195) by quoting “discount code 649L09.S”

Jésus Hates Federal Court. Really, He Does.

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Thu, 30 Oct 2008 06:30:00 -0600

Jésus Trilla-Pinero v. Puerto Rico, 557 F.Supp.2d 258 (D.Puerto Rico, Jun. 04, 2008)

Have you ever thought about CAFA and wondered where it stands in the cosmic order? Ever ponder the mysteries of CAFA and think WWJD? Of course, we’re talking about Jésus Trilla-Pinero, pronounced “Hey, Zeus…” the plaintiff in today’s commencement tale. (Editors' Note: Who did you think we were talking about?) Well, we at the CAFA Law Blog recently unearthed this little gem of CAFA divinity and found that, strangely enough, Jésus doesn’t care much for CAFA, or federal court. Judge for yourself in this excerpt from the sacred book of CAFA:

And lo, it came to pass that on the 6th day of March in the year of 2000, Jésus did fileth a class action in the Court of the First Instance of the Commonwealth of Puerto Rico.

And in the sacred text of the original complaint, he did claim that Shell Company Puerto Rico and Total Petroleum, aka the Pharisees, were violators of Puerto Rico Law 157 by selling gasoline products without a mandatory temperature adjustment required under Puerto Rico Law 157, and by generally doing other funky stuff with their products. (Editors' Note: We’re not positive, but we’re pretty sure that this one didn’t make Moses’ top ten list of no-no’s).

Then, on February 8, 2008, Jésus, on behalf of the multitudes, filed a third amended complaint with the Puerto Rico Commonwealth court, redefining claims and adding nine new names to his list of sinners. In the third amended complaint, Jésus redefined his claims to change the method of measuring the temperature adjustment used by the defendants in terms of the amount of energy of a gallon of gasoline, rather than on the price of the gasoline.

Upon receipt the third amended complaint, Total and Shell filed a notice of removal under CAFA. In their notice of removal, Total and Shell asserted that the third amended complaint constituted the commencement of a new action.

Jésus disagreed and he filed a motion to remand. In his motion to remand he argued that CAFA did not apply to his case because it was commenced well before CAFA’s effective date.

After considering the nature of the amendments to the class claims from the third amended complaint, the Court sided with Jésus and found that amending the definition of the temperature adjustment did not change the nature of the claims. Instead, the court found that the change was nothing more than a “workaday change” in the terminology of the claim.

Shell and Total went on to argue that the addition of the nine new defendants constituted the commencement of a new suit for CAFA purposes. Shell and Total forgot one important detail—none of the newly added defendants joined in or sought the removal.

Jésus didn’t forget, and neither did the court. Noting that the First Circuit had not yet stated whether the addition of a new defendant constitutes the commencement of a new suit only as to the new defendant, or if it allowed an old defendant to remove, the District of Puerto Rico followed the Fifth Circuit (Braud v. Transp. Serv. Co., 445 F.3d 801, 804 (5^th Cir. 2006)) and the Seventh Circuit (Schillinger v. Union Pac. R.R., 425 F.3d 330. 333 (7^th Cir. 2005)) to hold that the addition of a new defendant results in the commencement of a new suit only as to the newly added defendant. And so, the court remanded the case. (Editors' Note: See the CAFA Law Blog analysis of Braud posted on May 24, 2006 and the CAFA Law Blog analysis of Schillnger posted on October 24, 2005).

All at once the offenders of Jésus grasped the reality of being thrown down from the mountain and back into the depths of state court from whence they had come. And, upon the recitation of the final ruling by the district court judge, wrote with the fiery fountain pen of divine justice, there was much wailing and gnashing of teeth. Then, at the end of the tribulation of the motion to remand, and after the Order of remand had been delivered from on high, Jésus did stand on the top step of the court house to extend his arm to point at the offenders and there he was heard to say with thunderous voice, just as Jesus Quinatana did in the Big Lebowski: “No one $#@!’s with the Jésus…”

Festivus for the Rest of Us - The ABA's 12th Annual National Institute on Class Actions

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Wed, 29 Oct 2008 06:30:00 -0600

Nothing like New York in November. Clear crisp skies, pigeons moving out of the way as you jog through central part, and meeting your friends for coffee at Monk’s while beginning to plan Festivus. What makes this November even better? Well the American Bar Association’s 12^th annual National Institute on Class Actions of course.

According to our friends at the ABA you should come to the seminar if you want to:

· Hear the real impact of the Class Action Fairness Act from leading experts;

· Stay up-to-date on the hot class action issues and the latest developments in class action case law;

· Learn how counsel and the courts are addressing class certification motions;

· Hear what the future has in store for consumer fraud class actions;

· Get the perspective of federal district judges on key class action issues; and

· Learn about the growing international impact of class action litigation.

· Go see Mama Mia and then sing the ABBA songs at the top of your lungs in Times Square. Okay, the ABA did not suggest this one. We just threw it in for fun.

Where is it you ask? New York Marriott Downtown, 85 West Street, New York, NY 10006.

How do you register? Click here to register. Hurry, though. This seminar is November 7, 2008.

Don't Be a Namby Pamby! Negotiate Your Own Amount in Controversy for CAFA Removal

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Tue, 28 Oct 2008 06:30:00 -0600

Hauer v. Priceline.com, Inc., et al, 3:08-cv-02608-JSW (N.D. Cal. August 6, 2008).

PRICELINE NEGOTIATOR!! Problems with Priceline’s negotiator in California subjects the online peddler of cheap travel to California state court jurisdiction.

On August 6, 2008, United States District Judge Jeffrey S. White entered an Order granting the plaintiffs’ motion to remand a California class action removed by Priceline.com. The plaintiff, Glen Hauer, filed this class action against Priceline, Alamo Rent-a-Car, and Vanguard Car Rental in California state court. Priceline removed the action pursuant to CAFA and the plaintiffs sought remand on the ground that CAFA’s amount in controversy had not been satisfied. It is interesting to note that both Alamo and Vanguard filed statements of non-opposition to the plaintiffs’ motion to remand. I guess they like California state court.

After outlining CAFA’s jurisdiction provisions, the Court cited Abrego for the proposition that the burden for establishing removal jurisdiction remains on the proponent of federal jurisdiction under CAFA. (Editors’ Note: See the CAFA Law Blog analysis of Abrego posted on May 25, 2006. You know exactly how we feel about this burden of proof issue. If not, see our law review article on the subject).

The plaintiffs’ motion to remand argued that the amount in controversy was under CAFA’s jurisdictional amount of five million dollars. The Court noted that the plaintiffs’ Complaint failed to plead specific amount of damages. Therefore, the Ninth Circuit opinion in Lowdermilk instructed the Court to look beyond the Complaint to determine whether the suit met the jurisdictional requirements of CAFA. (Editors’ Note: See the CAFA Law Blog analysis of the Lowdermilk case from the 9th Circuit posted on July 30, 2007).

To meet their burden, Priceline used the plaintiffs allegation that 40% of the reservations made through Priceline’s websites were improperly transferred to Priceline’s rental car partners. Priceline calculated that during the four year class period it received over $85 million in revenue from California rental car bookings through the “Name Your Own Price” service. This calculation came to $34 million, well above CAFA’s $5 million requirement. The Court noted, however, that there was evidence that the problems with the “Name Your Own Price” service were extremely rare and only occurred in 1% of reservations. The Court then calculated 1% of 85 million times equaling $85,000.00, which the Court stated was substantially below the $5 million threshold.

Priceline also argued that the cost of implementing an injunction along with punitive damage should be considered in determining the amount in controversy. Priceline, however, failed to submit any evidence of what the costs of those damages would be.

Accordingly, the Court found that Priceline failed to demonstrate by a proponderous of the evidence that the amount in controversy exceeded $5 million and granted the plaintiffs motion to remand.

Who? What? When? Where? Why? Three Scholars Discuss CAFA's Role Surrounding the Issue of Multidistrict Litigation.

cafalawblog@mcglinchey.com (McGlinchey Stafford PLLC) — Mon, 27 Oct 2008 06:30:00 -0600

Proceedings of the Tulane Law Review Symposium. The Problem of Multidistrict Litigation, 82 Tul. L. Rev. 2225, 2369, and 2423 (June, 2008).

Admit it. You watched every single presidential (and vice-presidential) debate waiting with bated breath to see the candidates actually debate an issue rather than deliver a stump speech. Because we know you were disappointed (like us), we went and found something even better for you: A debate on Multidistrict Litigation! What makes this debate so great, you ask? CAFA gets thrown into the mix, and the parties are not afraid to use it.

In June of 2008, the Tulane Law Review published a three part series entitled The Problem of Multidistrict Litigation. Part one, “A View from the Panel: Part of the Solution” by Chief Judge John G. Heyburn II, United States District Court for the Western District of Kentucky (who also serves as the Chair of the Judicial Panel on Multidistrict Litigation), focuses on the Judicial Panel’s role in coordinating and handling multi-district litigation.

While the article does not focus on CAFA, the author does believe that CAFA lessened the attractiveness of the class action to the plaintiffs’ bar. The Judge obviously never saw how attractive a person can look in one of our CAFA Law Blog T-shirts!

Part two, “Recovering the Social Value of Jurisdictional Redundancy” by Alexandra D. Lahav, an associate professor at the University of Connecticut School of Law, addresses the benefit of multicentered litigation. Opposing centralization of lawsuits on the whole, the author laments that CAFA expanded federal court jurisdiction “to encompass essentially any class action.” Apparently the author did not read this post on our CAFA Blog.

Robin J. Effron, an assistant professor at Brooklyn School of Law, wrote part three, “Disaster-Specific Mechanisms for Consolidation.” This section juxtaposes CAFA and the Multiparty, Multiforum Trial Jurisdiction Act in the context of a national event. Specifically, the author focuses on the importance of centralized litigation in the context of events like September 11th and Katrina, and how CAFA can help centralize litigation.