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Entries for category:   Other Jurisdictions

 
Oct 27, 2014

Is the Aggregation of Job References Mass Credit Reporting?
 

Plaintiffs recently filed a putative class action suit against the networking site LinkedIn in California federal court. The claim, brought under the Fair Credit Reporting Act, raises questions as to whether the law should apply more broadly than just to the reporting of consumer credit. This Recorder story details the plaintiffs’ theory of the case:

According to the suit, LinkedIn can mine the information provided by users of its professional networking website to find potential references for job applicants without the applicants' knowledge. Searches yield a list of the names and current job titles for potential references, along with the common employer they share with the applicant and time worked together.

The complaint claims that these reference lists amount to a consumer report under the Fair Credit Reporting Act, and that LinkedIn fails to abide by safeguards required under the law.

"In essence, LinkedIn has created a marketplace in consumer employment information, where it sells employment information, that may or may not be accurate, and that it has obtained in part from unwitting members, and without complying with the FCRA," write the plaintiffs lawyers at Greenwald Davidson in Boca Raton, Fla., and the Law Offices Todd Friedman in Beverly Hills. Plaintiffs are asking for statutory damages for willful violation of the FCRA, which run from $100 to $1,000 per violation.

More details on this case are available here and here.


 
Posted by S. Shimeall in  Consumer Credit Industry  Federal Class Action Law  Other Jurisdictions    |   Permalink

 

Mar 23, 2014

California district judge denies plaintiff's motion for class certification against Google for failing to meet the predominance requirement of Rule 23(b)(3)
 

On March 18, 2014, Judge Lucy Koh of the United States District Court for the Northern District of California denied the plaintiff’s motion for class certification with respect to claims against Google, Inc. premised on its operation of Gmail and its Google Apps services. The plaintiffs in the multi-district litigation, In re: Google, Inc. Gmail Litigation, 5:13-md-02430-LHK (N.D. Cal. 2014), alleged that Google had engaged in unlawful interceptions of the content of their email communications through the use of various processing devices for the purpose of gathering data about users. Judge Koh, in rejecting the plaintiff’s request to certify four different classes, with three subclasses of Google Apps and Gmail users, found that no class could meet the predominance requirement of Rule 23(b)(3).

Noting that the predominance inquiry requires a court to wade into the merits in order to predict to some degree what issues will control the outcome of the case, Judge Koh observed that “the question of whether Class members have consented to the alleged interceptions has been central to this case since its inception.” The so-called “consent exception” in each of the various wiretap statutes at issue made it lawful to intercept communications when a party (or all parties) consented, and consent could have been express, or implied from the circumstances.  Judge Koh held that, because Google argued that each of the users had consented to the interception of their communications either expressly or impliedly (in light of user disclosures, news articles about interceptions, and other sources of notice about the practice), no class-wide adjudication was possible.

The Court found that, particularly with respect to the fact-intensive determinations about implied consent, “individual issues regarding consent are likely to overwhelmingly predominate over common issues,” because “there is a panoply of sources from which email users could have learned of Google’s interceptions….” As a result, certification was denied as to all classes, because “a fact-finder would have to determine to what disclosures each Class member was exposed and whether such disclosures were sufficient to conclude, under the Wiretap Act, that Class members consented to the alleged Google interceptions of email.” In concluding, Judge Koh closed the door on any re-filing of a certification motion by denying the plaintiffs’ motion with prejudice, noting that they had already had three chances to succeed.


 
Posted by D. Gibson in  Civil Rule 23 Requirements  Other Jurisdictions    |   Permalink

 

Jul 12, 2013

Second Circuit rules that equitable tolling principles do not apply to the statute of repose under the Securities Act
 

Last week, the Second Circuit Court of Appeals affirmed a district court's decision, holding that the American Pipe tolling doctrine does not apply to the three-year statute of repose under the Securities Act of 1933.

In re IndyMac Mortgage-Backed Securities Litigation, the Second Circuit found that the U.S. Supreme Court's ruling in American Pipe & Construction Co. v. Utah that held that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action" does not apply to statutes of repose. These statutes, in general, have an "absolute" three-year limitation that is stricter than the statute of limitations, which can be subject to tolling.

The Second Circuit’s decision resolved a split of authority within the Second Circuit, but other U.S. Courts of Appeals, including the Federal, Fourth and Tenth Circuits, remain split.  For more, read the full decision.


 
Posted by A. Haque in  Civil Rule 23 Requirements  Federal Class Action Law  Other Jurisdictions    |   Permalink

 

Jul 08, 2013

Ninth Circuit Court expands period in which defendants can remove a case to federal court
 

Recently, the Ninth Circuit Court of Appeals reversed a district court's remand to state court under the Class Action Fairness Act (CAFA) of a wage-and-hour class action when it rejected an interpretation of 28 U.S.C. § 1446(b)(1) and (b)(3) that says defendants can remove a case to federal court "only during the two thirty-day periods specified in those subsections," which are "thirty days after a complaint has been filed or within that same time frame after plaintiffs provide defendants with a document with facts supporting the removal of the case."

In Amy Roth et al. v. CHA Hollywood Medical Center et al., the Ninth Circuit found that these two time periods "operate as limitations on the right to removal rather than as authorizations to remove" and that they "do not otherwise affect the time during which a defendant may remove" under the federal removal statute, 28 U.S.C. § 1441.

The Ninth Circuit concluded that when 28 U.S.C. §§ 1441 and 1446 are read together, a defendant may remove a case outside the two thirty-day periods under 28 U.S.C. § 1446 as long as one of the two thirty-day periods is not triggered.  For more, read the full opinion.


 
Posted by A. Haque in  Class Action Fairness Act  Federal Class Action Law  Other Jurisdictions    |   Permalink

 

Nov 19, 2012

Choice of Law Decision Leads to Dismissal of State False Advertising Claims in Class Action Against General Mills
 

“Wow, I can help lower my cholesterol 10 percent in one month?” This and other statements on Cheerios boxes led the FDA to issue a warning letter to General Mills. Without commenting on the accuracy of the health claims in the Cheerios marketing, the FDA noted that if the cereal is intended for use in lowering cholesterol, then it’s a drug within the agency’s regulatory supervision. Cheerios boxes were relabeled, but that didn’t stop the class action plaintiffs. Six complaints were filed by plaintiffs in California, New Jersey and New York. Apparently, all were filed in state court seeking state law remedies. The U.S. Judicial Panel on Multidistrict Litigation Committee consolidated the actions into one multidistrict litigation. For more, read the full story


 
Posted by G. Krabacher in  Federal Class Action Law  Other Jurisdictions    |   Permalink

 

Oct 09, 2012

The End of Incentive Agreements for Plaintiffs?
 

Recently, the Ninth Circuit Court of Appeals issued a decision that calls to task the unethical behavior of class counsel. As a result, class counsel was denied some of its fees and a serious blow to the legitimacy of incentive agreements was dealt.

In the consolidated case of Rodriguez vs. Disner, case no. 10-55309 (9th Cir.), the court held that due to the inherent conflict of interest created by the incentive agreement in place between the McGuireWoods law firm as class counsel and select class members, it would award neither incentive compensation to the select class members nor incentive fees to McGuireWoods.

The case arose out of an antitrust class action law suit brought by the plaintiffs against West Publishing (owner of BAR/BRI) and Kaplan. The plaintiffs alleged that these two defendants conspired to prevent competition and wrongfully monopolize the full-service bar review course market, all in violation of applicable federal law. Shortly before trial, the allegations were resolved and the case was settled. West Publishing and Kaplan agreed to pay $49 million into a settlement fund, with 25 percent of that amount set aside for attorneys’ fees.

The twist here is that the original class counsel, Van Etten Suzumoto & Becket LLP (which later merged with McGuireWoods LLP), had entered into incentive agreements with five of the plaintiffs. Pursuant to these agreements, the law firm would apply for additional compensation for these plaintiffs, together with the concomitant attorneys’ fees. Per the terms of the agreement, the law firm would seek incentive awards upwards of $75,000 per plaintiff.

For more, read the full article.


 
Posted by C. Ernst in  Other Jurisdictions    |   Permalink

 

Sep 17, 2012

MERS class action dismissed in New Jersey federal court
 

The United States District Court for the District of New Jersey has declined a remand request and dismissed a putative class action filed by homeowners against HSBC Mortgage Services Inc. and Mortgage Electronic Registration Systems, Inc. In Napoli v. HSBC Mortgage Servs., Inc., Case No. 12-CV-222 (D. N.J. 2012), the plaintiffs alleged that HSBC and MERS fraudulently overcharged them and similarly situated foreclosed-upon borrowers by overstating the payoff amounts due on their home loans, and asserted claims for breach of contract and violations of the New Jersey Consumer Fraud Act, the Truth-In-Consumer Contract, the Warranty and Notice Act, and the Uniform Commercial Code. The case was originally filed in New Jersey Superior Court and was removed by the defendants pursuant to the Class Action Fairness Act (CAFA). The plaintiffs had been foreclosed upon and were facing the sale of their properties following judgment when they refinanced their properties immediately prior to sale. Plaintiffs alleged in their complaint that the loan payoff amounts that were ultimately refinanced had been overstated by the defendants by more than $6,000. They sought to recover their damages, trebled under the state statutes forming the basis for their claims. For more, read the full story.


 
Posted by D. Gibson in  Banking Industry  Class Action Fairness Act  Other Jurisdictions    |   Permalink

 

Sep 10, 2012

Court says no way to cy pres: "Gift" stricken from class action settlement
 

Courts are questioning whether the trust doctrine of cy pres may be used in class action litigation to permit the distribution of unclaimed settlement funds to charities. While proponents argue that cy pres distributions punish corporate wrongdoing, deter future misconduct and deny “windfalls” to settling defendants, there is mounting concern that the process can erode public confidence in the bar and the judiciary. Of equal concern, leading scholars — and courts — believe that the process is simply unconstitutional.

A recent decision from the U.S. District Court in New Mexico is a case in point. In In re Thornburg Mortgage, Inc. Securities Litigation, 2012 U.S. Dist. LEXIS 107934 (July 24, 2012), the court struck a cy pres provision in an agreed class action settlement that would have made a local charity the primary beneficiary of a class settlement, while excluding some class members from participating in the settlement at all.

In re Thornburg Mortgage, Inc. Securities Litigation is the latest in a series of thoughtful cases addressing the flaws with cy pres awards, and striking them on its own motion. Settling defendants should not hesitate to challenge cy pres distributions and insist that residual settlement funds be returned at the close of the claims period. For more, read the full story.


 
Posted by D. Campbell in  Cy Pres  Other Jurisdictions    |   Permalink

 

Dec 01, 2011

Concepcion, collective-arbitration waivers, and the business of insurance: Arkansas Supreme Court says the McCarron-Ferguson Act reverse preempts the FAA
 

Following the Supreme Court's decision in AT&T Mobility, Inc. v. Concepcion, 113 S. Ct. 1740 (2011), it seemed clear that states possessed little power to limit the enforcement of arbitration provisions and class action waivers in consumer contracts.  "Arbitration is a matter of contract, and the [Federal Arbitration Act ("FAA")] requires courts to honor parties' expectations."  However, the Supreme Court of Arkansas, in its recent decision in Southern Pioneer Life Ins. Co. v. Thomas, 2011 Ark. 490 (Ark., 2011) identified what could be a significant exception to Concepcion: the business of insurance. 

In Southern Pioneer, the Thomas's executed a credit application and a retail installment contract as part of the purchase of a new car.  The credit application contained a provision calling for arbitration of "[a]ny claim or dispute, whether in contract, tort or otherwise…, which arise [sic] out of or relate to this Application, an installment sale contract or lease agreement, or any resulting transaction or relationship…."  The related retail installment contract provided an option for the purchase of credit-life insurance coverage with Southern Pioneer, the entire premium for which was financed with the purchase price of the vehicle and wrapped into the life of the loan.  The Thomas's opted for the insurance, but subsequently paid off the loan six years ahead of the maturity date.  They then filed a putative class action, alleging breach of the insurance contract against Southern Pioneer and seeking the refund of unearned premiums from the date of payoff through the original maturity date.  Southern Pioneer sought to compel arbitration pursuant to the arbitration clause in the credit application.

The trial court denied Southern Pioneer's motion, and the Arkansas Supreme Court affirmed, because the Arkansas Uniform Arbitration Act (the "AUAA") in effect at the time, and which recognized the validity, enforceability and irrevocability of contractual arbitration provisions generally, expressly did not apply to "any insured or beneficiary under any insurance policy…."  Ark. Code. Ann. 16-108-201(b) (Repl. 2006).  While recognizing that the FAA "would ordinarily preempt conflicting state law," the Court held that the McCarran-Ferguson Act (the "MFA"), [15 U.S.C. 1011, et seq.], "operates to bar application of the FAA and leave the regulation of the insurance industry to the states…."  The MFA provides that "[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance…unless such Act specifically relates to the business of insurance…."  15 U.S.C. 1012(b).

The Arkansas Supreme Court's decision suggests that, while states may be barred by the FAA from either enacting or judicially enforcing laws or doctrines like the Discover Bank rule, as set forth in Concepcion (California's rule classifying most collective-arbitration waivers in consumer contracts as unconscionable, and therefore unenforceable), states are nonetheless free under the McCarron-Ferguson Act to place limitations or outright prohibitions on collective-arbitration waivers or arbitration agreements generally, if the limitation or prohibition is a law enacted by the state for the purpose of regulating the business of insurance.

However, the Ohio Revised Code does not specifically exempt the business of insurance from the enforceability of contractual arbitration provisions like the AUAA did in Southern Pioneer.  As a result, Concepcion, and by extension the FAA, appear likely to continue to govern the enforceability of arbitration agreements and collective-arbitration waiver provisions in Ohio jurisdictions for the foreseeable future, including those found in contracts of insurance.


 
Posted by D. Gibson in  Arbitration  Federal Class Action Law  Insurance Industry  Other Jurisdictions    |   Permalink

 

 

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