Third Circuit Rules That Private Plaintiffs Must Plead Individual “Justifiable Reliance” To Sustain Class Claims Under Pennsylvania’s Consumer Protection Law.
A recent decision by the Court of Appeals for the Third Circuit has made class actions under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) even more difficult. In Hunt v. U.S. Tobacco, --- F.3d ----, 2008 WL 2967249, (3d. Cir. Aug. 05, 2008), the court considered whether a private consumer must prove that he individually relied on the defendants’ alleged deceptive conduct or statements to sustain a claim under the UTPCPL.
United States District Court for District of Kansas denies plaintiff’s motion for class certification
“Light” Cigarettes Bring Heavy Cost for Tobacco Industry as a New York District Court Grants Class Certification
This case involved a class action against numerous tobacco companies brought on behalf of a class of Louisiana smokers and former smokers.
SEE ALSO: CADS Report Fall 2007 Newsletter |
SEE ALSO: Tobacco Products Liability Project
More Case Notes
A panel of the Eleventh Circuit found that a putative class complaint seeking only declaratory relief satisfied the Class Action Fairness Act's $5 million aggregate amount in controversy requirement.
Atwell v. Boston Sci. Corp., No. 13-8031; Evans v. Boston Sci. Corp., No. 13-8032; Taylor v. Boston Sci. Corp., No. 13-8033, (8th Cir. Nov. 18, 2013)
The cases were properly removed under CAFA as one "mass action."
At least one plaintiff must satisfy $75,000 individual amount in controversy requirement for federal removal.
The Ninth Circuit vacates a district court's order in Mondragon.
Roth v. CHA Hollywood Med. Ctr., L.P., —F.3d—, No. 13-55771, 2013 WL 3214941,(9th Cir. June 27, 2013)
The holding comes in Roth vs. CHA Hollywood Medical Center.
In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, No. 10-4188 (6th Cir. July 18, 2013)
The ruling comes in light of the court's Comcast decision.
Ninth Circuit rules on payment of incentive awards issue. The plaintiffs alleged that defendant credit reporting agencies violated the Fair Credit Reporting Act and its California state-law analogues.
Ninth Circuit rules on payment of incentive awards issue. The plaintiffs alleged that defendant credit reporting agencies violated the Fair Credit Reporting Act and its California state-law analogues.
Court unanimously holds that a plaintiff cannot avoid CAFA jurisdiction by stipulating to seeking less than $5 million on behalf of a putative class.
Supreme Court concludes there is no need to require proof of materiality at the class-certification stage in order to invoke the "fraud-on-the-market" theory.
Court finds BMW Financial's removal was timely, and the order remanding the case to state court was an error.
The Sixth Circuit affirmed the denial of certification of a class of minority borrowers who had Countrywide-originated mortgages.
Court rules that alleged misconduct on the part of plaintiff's counsel in a class-action lawsuit does not require denial of class certification.
The Eighth Circuit rejected the NLRB's reasoning that Concepcion did not apply in the employment context and upheld the enforceability of a class or collective-action waiver contained in an employment arbitration agreement.
A summary of oral argument in this critical case which is sure to impact class-action litigation, specifically related to CAFA's amount in controversy requirement, in the future.
Judge Posner's opinion in Johnson v. Meriter Health Services Employee Retirement Plan, focuses on one question arguably left open by Wal-Mart Stores v. Dukes—what kind of incidental monetary relief may be certified in a Rule 23(b)(2) case?
Delaware Court of Chancery holds that filing a Caremark claim without conducting a meaningful investigation constitutes inadequate representation.
Eastern District judge orders putative class plaintiffs to share in defendant costs of responding to pre-certification requests for discovery.
The Eleventh Circuit confirmed that state laws purporting to invalidate class action waivers are preempted by the Federal Arbitration Act (FAA) in contracts requiring arbitration.
A Florida district court concluded that the court had subject-matter jurisdiction under CAFA over putative class claims against a West Virginia bank.
The district court abused its discretion in approving a settlement because the cy pres award was not sufficiently related to the consumer-protection laws underlying the case.
The Eleventh Circuit has rejected a collateral attack on a limited-fund class settlement by a member of the certified settlement class.
If the Court rules in Comcast's favor, plaintiffs would have to show at certification that they have a method of proving damages that is admissible and common for all plaintiffs.
The district court did not abuse its discretion when it distributed residual settlement funds to a cancer research center over the objections of dissident class members.
The court determined that the statute of limitations begins when the plaintiffs could have discovered wrongdoing, not when they first started looking.
The Second Circuit refused to find all class-action waivers per se enforceable.
The Seventh Circuit reversed the denial of class certification in an antitrust class action.
The Supreme Court concluded that an agreement providing for the arbitration of claims under the CROA was enforceable, reversing the Ninth Circuit.
The Third Circuit says settlement classes can include members who wouldn't prevail on the merits and affirms $295 million DeBeers settlement.
Creating a circuit split, the Seventh Circuit endorsed a defendant's offer of full relief to a named plaintiff, mooting a class action.
The Third Circuit held that the Hydrogen Peroxide requirements are satisfied and affirmed the antitrust class action.
Some courts are increasingly relying on the requirement that states that a class must be ascertainable before it is capable of being certified.
The Supreme Court found that the Anti-Injunction Act cannot be used to enjoin unnamed class members from relitigating class certification in a state court.
The Court held that Rule 23(b)(2) does not apply where class members are entitled to individualized awards of monetary damages.
The Supreme Court reversed a Fifth Circuit decision holding that plaintiffs must prove loss causation to certify a class action in securities fraud cases.
The Supreme Court held that California's Discover Bank decision is preempted by section 2 of the Federal Arbitration Act.
The Delaware Supreme Court reversed the Court of Chancery, holding that a stockholder can still have a proper purpose to inspect books and records after filing a derivative suit.
The Tenth Circuit held that an order withdrawing the approval of a class settlement does not constitute an appealable order under 28 U.S.C. § 1291.
The Seventh Circuit held that removal was premature and that Boeing's own desire for a joint trial could not support removal under CAFA.
The Seventh Circuit confirmed that opt-in FLSA collective actions and opt-out class actions under Rule 23 may coexist within the same case.
The New Jersey Supreme Court unanimously reversed the denial of a class certification in the Credence diet pill case.
The Ninth Circuit has rejected "mass manifestation" as a requirement for class certification in consumer product defect class actions.
The Eleventh Circuit requires class-action plaintiffs to satisfy both CAFA and traditional diversity amount-in-controversy requirements.
On May 24, 2010, the Supreme Court issued a unanimous decision in American Needle, Inc. v. National Football League.
In an opinion addressing the interplay between motions for class certification and expert testimony, the Seventh Circuit ruled that when deciding motions for class certification supported by expert testimony, district courts “must conclusively rule on the admissibility of an expert opinion prior to class certification . . . [where] that opinion is essential to the certification decision.”
On April 27, 2010, the U.S. Supreme Court issued its opinion in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S., Case No. 08-1198, deciding “whether imposing class arbitration on parties whose arbitration clauses are ‘silent’ on that issue is consistent with the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq.” Slip op. at 1.
The Supreme Court’s decision in Merck & Co. Inc. v. Reynolds resolved three important issues concerning the application of the statute of limitations for securities-fraud actions.
U.S. Supreme Court clarifies Rule 23’s application where contrary state law prohibits particular types of class action.
The Seventh Circuit finds that a counterclaim defendant can’t remove an action under CAFA.
The Supreme Court of Georgia decided Holmes et al. v. Grubman et al., S.E.2d, 2010 WL 424255 (Ga. Feb 8, 2010), which dealt with the scope of common-law torts in the context of securities fraud.
In Mayor and City Council of Baltimore v. Citigroup, No. 08-CV-7746, No. 08-CV-7747, 2010 U.S. Dist. LEXIS 13193 (S.D.N.Y. Jan. 26, 2010), Southern District of New York dismisses two antitrust class actions brought against auction rate securities (“ARS”) underwriters and broker-dealers. The court, applying the holding of Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264, 127 S. Ct. 2383, 168 L. Ed. 2d 145 (2007), held that federal securities laws provided implied immunity from application of the antitrust laws.
In In re eBay Seller Antitrust Litigation, C 07-01882 JF (RS), 2010 U.S. Dist. LEXIS 19480 (N.D. Cal. Mar. 4, 2010), the plaintiffs filed a putative class action against eBay for alleged violations of the Sherman Act and California’s Business and Professional Code.
The Maryland Court of Appeals held, among other things, that directors of Maryland corporations owe common-law fiduciary duties of candor and maximization of shareholder value directly to shareholders, at least in negotiating the merger price where the board has decided to sell the corporation in a cash-out merger.
In the context of a multidistrict-litigation (MDL) proceeding, the Eighth Circuit Court of Appeals opined on the preclusive effect of a district court’s refusal to certify a class on subsequent attempts by absent class members to certify a similar class in state court.
On January 29, 2010, the three-and-one-half-month-long class-action securities-fraud trial against Vivendi Universal
Eighth Circuit Holds that Denial of Class Certification in Federal Case Bars Subsequent Certification in State Court
Aligning itself with the Seventh Circuit’s decision in In re Bridgestone/Firestone, 333 F.3d 763, 767–68 (7th Cir. 2003), the Eighth Circuit recently upheld an injunction under the “relitigation exception” to the Anti-Injunction Act prohibiting plaintiffs in a state-court action from seeking class certification after a federal court had denied certification under a similar legal theory.
The Eleventh Circuit in In re CP Ships Ltd. Securities Litigation rejected a challenge to a securities class action settlement where the objector argued that the court lacks subject matter jurisdiction over foreign class members.
Two recent Delaware cases have raised the bar for plaintiffs challenging how a public company’s board of directors handled a potential merger transaction that had the potential to or did result in a change of control.
Chief Judge Scirica of the Third Circuit delivered the opinion of the court in In re Hydrogen Peroxide Antitrust Litigation. Coming as it does from Judge Scricia, who is a member of the Advisory Committee on Civil Rules, has served as chairman of the Judicial Conference’s Standing Committee on the Rules of Practice, and is Chair of the Judicial Conference Working Group on Mass Torts, the opinion has considerable weight.
Delaware Supreme Court Rules Officers of a Delaware Corporation Owe Same Fiduciary Duties to Corporation as Directors
The Delaware High Court for the first time explicitly held that “officers of Delaware corporations, like directors, owe fiduciary duties of care and loyalty, and that the fiduciary duties of officers are the same as those of directors.” The opinion proceeds to address major issues that have long been pending in Delaware law, including when shareholder ratification can effectively shield board action.
Ninth Circuit Determines No Private Right of Action Under SOX Section 304
In this case of first impression, the Ninth Circuit determined that there is no private right of action under Section 304 of the Sarbanes-Oxley Act, 15 U.S.C. § 7243 (which provides for the forfeiture of certain bonuses and profits when corporate officers fail to comply with the reporting requirements of the securities laws).
The First Appellate District of the California Court of Appeals has ruled that the pass-on defense is available to defendants accused of price-fixing under California law.
In a case of first impression the Eleventh Circuit opined on whether, in multi-defendant litigation, the limitations period for removal expires upon thirty days from service on the first-served or the last-served defendant under 28 U.S.C. § 1446(b).
On July 22, 2008, in a case involving nationwide claims that purchasers of jars of peanut butter contaminated with Salmonella bacteria suffered financial and personal injury losses, the MDL judge rejected proposed national classes for both consumer and personal injury claims.
On May 22, 2008, the Massachusetts Supreme Judicial Court held that due process concerns precluded certification of a nationwide class of purchasers of “disappearing premium” insurance policies. The court also denied without prejudice plaintiffs’ alternative request to certify a statewide class because of individual statute of limitations issues.
See also: Court Decision
Second Circuit Finds Corporate Scienter Possible Absent Showing of Individual Scienter
In Teamsters Local 445 Freight Division Pension Fund v. Dynex Capital Inc., 06-2902-cv, the 2nd Circuit Court of Appeals reversed the trial court's denial of a motion to dismiss based on failure to adequately plead scienter but held that a finding of scienter by individual defendants is not required to support a showing of corporate scienter. Judge Walker, writing for the court, stated: "Congress has imposed strict requirements on securities fraud pleading, but we do not believe they have imposed the rule urged by defendants, that in no case can corporate scienter be pleaded in the absence of successfully pleading scienter as to an expressly named officer." The 2nd Circuit's dismissal is with leave for plaintiffs to replead.
In Krueger v. Wyeth, Inc., 2008 U.S. Dist. LEXIS 12236 (D. Cal. 2008), Judge Janis Sammartino of California’s Southern District denied without prejudice plaintiff April Krueger’s motion for 23(b)(3) class certification for “[a]ll California consumers who purchased Wyeth's Hormone Replacement Therapy products, Premarin, Prempro, and/or Premphase, between January 1995 and January 2003.”
See also: Court Decision |
On February 20, 2008, the United States Supreme Court found: (1) the FDA’s rigorous Class III premarket approval process met the burden of establishing federal requirements concerning specific medical devices and (2) the Medical Device Amendments of 1976 (“MDA”) preempted petitioner’s New York common law claims for strict liability, breach of implied warranty, and negligence. The plaintiff sought reversal of the lower court’s finding that the MDA Amendments preempted their state law claims against the manufacturer of a type of catheter.
On February 14, 2008, the California Supreme Court decided an important issue of shareholder derivative standing in Grosset v. Wenaas, et al., S139285, and dismissed the appeal because the shareholder plaintiff could not satisfy the “continuous ownership” requirement after his stock was acquired in a merger transaction.
On January 29, 2008, Judge Pauley of the United States District Court, Southern District of New York, granted the summary judgment motion of defendants Omnicare Group, Inc. and certain members of management in a class action captioned In re Omnicom Group, Inc.
On remand from the U.S. Supreme Court to reconsider the sufficiency of the complaint in light of the uniform standard announced by the Supreme Court in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007), the Seventh Circuit held that the plaintiff investors’ allegations of securities fraud create the strong inference of scienter required by the Private Securities Litigation Reform Act of 1995 (the PSLRA).
On December 6, 2007, the United States District Court for the District of Kansas denied the plaintiffs’ motion to certify an 18-jurisdiction class of customers allegedly overcharged by a title company for the cost of recording their real-estate documents.
On December 19, 2007, Chief District Judge B. Lynn Winmill issued a thoughtful and detailed Memorandum Decision and Order granting plaintiffs’ motion for class certification in a securities class action against Micron.
On May 31, 2007, the New Jersey Supreme Court joined several other courts in reversing lower court decisions refusing to certify claims of thousands of hourly workers for missed rest and meal breaks and off-the-clock work against Wal-Mart Stores, Inc.
New Jersey Supreme Court rejects national consumer fraud class action involving Vioxx
In Higginbotham, the Seventh Circuit affirmed dismissal of the securities fraud class action, which involved alleged financial improprieties and a three-year restatement of financials. Specifically, the court held that allegations in the complaint that were attributed to five confidential witnesses must be "discounted" in assessing scienter in the wake of Tellabs. The court pointed out that, under Tellabs, a complaint will survive a motion to dismiss only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged and, in applying this standard, the court must take into account plausible opposing inferences. The Court went on to note that it would be hard to see how information from anonymous sources could be deemed "compelling" under the dictate of Tellabs. Indeed, "[t]o determine whether a strong inference of scienter has been established, the judiciary must evaluate what the complaint reveals and disregard what it conceals." The court held that the plaintiffs failed to proffer concrete evidence of knowledge on the part of Baxter's leadership in the United States, and that the arguments in support of scienter were inadequate.
On Thursday, June 21, 2007 the Supreme Court issued a significant opinion in Tellabs, Inc. et al., v. Makor Issues & Rights Ltd. et al., 551 U.S. ___ (2007), regarding the pleading standard for scienter under the Private Securities Litigation Reform Act of 1995 (“PSLRA”). Specifically, the Court considered what constitutes the requisite “strong inference” of scienter under the PSLRA and a majority of the Court held that “[t]o qualify as ‘strong’ within the intendment of Section 21D(b)(2), we hold, an inference must be more than merely plausible or reasonable—it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent ” In so holding, the Court expressly reversed the determination of the Seventh Circuit that courts need not consider competing inferences in determining whether a securities fraud complaint gives rise to a “strong” inference of scienter and instead stated that “the court must take into account plausible opposing inferences.”
Federal Judge slams lawyer-cooked class action.
On May 16, 2007, a divided panel of the Court of Appeals for the Fifth Circuit issued a significant decision reversing class certification in a federal securities class action based on plaintiff’s inability to establish loss causation at the class certification stage in Oscar Private Equity Investments, et al. v. Allegiance Telecom, Inc., ___ F.3d ____, No. 05-10791, 2007 WL 1430225, (C.A. 5 May 19, 2007). The Fifth Circuit held that absent a showing of loss causation, made by the preponderance of the admissible evidence, plaintiffs were not entitled to rely on the fraud-on-the-market presumption established by the Supreme Court in Basic v. Levinson, 485 U.S. 224, 244 (1998). Accordingly, the Court concluded that plaintiffs had failed to make the necessary showing under Rule 23 that common issues would prodominate over individualized issues of reliance.
Eleventh Circuit holds that in a CAFA mass action, any one defendant authorized under CAFA to remove the claims against that defendant to federal court may remove the action as a whole, regardless of whether other defendants in the action would be authorized to remove their claims. Eleventh Circuit also limits use of discovery to support amount in controversy for removal purposes.
Fifth Circuit holds that secondary actors cannot be primarily liable under securities laws for conduct alone.
Delaware Court of Chancery issues two watershed opinions in shareholder derivative actions.
SEC and USDOJ file Amicus Curiae and urge a heightened legal standard for shareholders in actions against corporations and their directors and officers.
Eastern District of Louisiana declines to certify nationwide class action in pharmaceutical personal injury case, and joins long line of federal decisions with similar holdings.
See also: Order & Reasons |
New Jersey Appellate Division issues important decision that holds out the possibility of a medical monitoring remedy in class action pharmaceutical product liability cases involving claimed latent injuries.
Eleventh Circuit holds that in seeking discretionary review of a district court's remand decision in a CAFA case, Rule 5 of the Federal Rules of Appellate Procedure must be followed.
Dukes v. Wal-Mart, Inc.
On February 6, 2007 the United States Court of Appeals for the Ninth Circuit affirmed the district court’s “historic” certification of a class of 1.5 million female current and former Wal-Mart employees. The Ninth Circuit ruled that monetary damages do not predominate over the womens’ class claims for injunctive relief brought pursuant to Rule 23 (b)(2) to enjoin Wal-Mart’s alleged discrimination in pay and promotion practices. The Court ruled that back pay and punitive damages are equitable in nature, and sufficient procedural safeguards exist to allow the case to proceed as the largest employment class action in American History.
On January 11, 2007, Judge Marilyn Hall Patel of the Northern District of California certified a nationwide gender discrimination class action challenging promotion practices for senior retail warehouse management positions at Costco. The class was certified under Rule 23(b)(2) and includes compensatory and punitive damages. The court ordered notice and opt out for class members.
Tobacco Litigation Still Has A Pulse: Judge Weinstein Certifies Class Action on "Light" Cigarettes.
The California Court of Appeal holds that where a class action is brought under California's unfair competition law or the false advertising law (Business and Professions Code, Section 17200 and 17500) all of the members of the class must meet the new Prop. 64 standing requirements, not just the Class Representative.
In the subject action, the Eleventh Circuit Court of Appeals examined the local controversy exception to CAFA. The Court of Appeals held that: (1) once defendants met CAFA's basic jurisdictional requirements for removal, that at least one plaintiff and one defendant are from different states and the amount in controversy exceeds $5,000,000, the burden of proving the local controversy exception to CAFA shifts to the plaintiffs; (2) the plaintiffs failed to satisfy the local controversy exception because less than two-thirds of the proposed class members were Alabama citizens; and (3) plaintiffs failed to satisfy the local controversy exception requirement that at least one defendant is a defendant from whom significant relief is sought by the class, whose alleged conduct forms a significant basis for the class claims asserted and who is a citizen of the state in which the action was originally filed.
Eleventh Circuit reverses 23(b)(2) ERISA certification.
See also: Court Opinion |
The Sixth Circuit concludes that plaintiff failed to satisfy Rule 23(b)'s "predominance" test and, therefore, upheld a district court order denying plaintiff's motion to certify class in antitrust action.
The United States District Court for the District of Massachusetts grants motion for final class certification and approves $75 million dollar settlement between class plaintiffs and drug manufacturer defendants. Further, the Court sets forth its reflections on the state of class action litigation and the American jury system today.
The Seventh Circuit holds, inter alia, that:
a) a party seeking to remove an action to federal court under CAFA bears the burden of establishing jurisdiction; and
b) the amount in controversy dictates whether the jurisdictional amount requirement has been satisfied—the amount the plaintiff actually will recover is not relevant to the jurisdictional amount analysis.
of Decision on Motion (New Jersey Supreme Court) |
On October 6th, the Ninth Circuit (J. Bybee) ruled that CAFA does not apply retroactively to cases pending in state court.
Illinois Supreme Court reverses $1 billion judgment against State Farm in
a nationwide class action limiting the reach of nationwide class actions
in Illinois courts.
See also: Court Decision
A Ringing Endorsement of the Business Judgment Rule: Decision After Trial of
Derivative Action Attacking Ovitz Compensation as a Breach of Fiduciary Duty
and Constituting Bad Faith.
Read also: Disney Affirmed by Stephen C. Norman
Supreme Court Slip Opinion: The U.S. Supreme Court holds in this decision
that class actions may be filed in or removed to federal court as long as at
least one named class representative's claim satisfies the $75,000 amount-in-controversy
requirement of 28 U.S.C. Section 1332(b), even if other class members' claims
fall below this amount.
See also: Analysis by Scott Nelson |
Second Circuit Decision: Reversing certification of nationwide class of cigarette smokers.
The California Supreme Court has held that class action waivers in consumer adhesion contracts (including but not limited to class action waivers in arbitration clauses) are unconscionable and unenforceable in circumstances where "disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money ...."