Archive for the ‘CAFA Requirements’ Category

I will be speaking in an upcoming live phone/web seminar on CAFA removal issues sponsored by Strafford Publications.  Here is some information about the program:

CAFA Removal and Remand: Latest Developments

Tuesday, March 29, 1:00pm-2:30pm EDT

Program Description:

Jurisdictional ambiguities in the CAFA statute continue to challenge litigators. One example is the Eleventh Circuit’s Cappuccitti v. DirecTV ruling that the district court lacked jurisdiction because no individual plaintiff or putative class member met the amount-in-controversy requirement. While the Eleventh Circuit later vacated its decision, its initial confusion was caused by CAFA’s ambiguous jurisdictional structure. Another evolving jurisdictional issue is the federal court’s authority to retain jurisdiction post-removal. Courts still wrestle with the effect of post-removal events such as denial of class certification or loss of diversity on continued federal court jurisdiction. While several recent cases more firmly establish continued post-removal federal court jurisdiction, this issue is far from settled.

This program will provide class action litigators with an examination of the latest case law developments in CAFA removal and remand, analyze continued jurisdictional ambiguities and pitfalls, and offer litigation strategies for navigating these ambiguities. The panel will offer perspectives and guidance on these and other critical questions: How are the courts resolving ambiguities in CAFA’s amount-in-controversy requirements for federal court jurisdiction? Do the federal courts retain jurisdiction even after class certification is denied or diversity is destroyed? What post-removal events or circumstances can result in a remand to state court?

The panel presentation will be followed by a  live question and answer session.

For more information and to register, see the Strafford Publications website.

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While browsing the news today, I came across an informative class action-related snippet on www.lexology.com apparently authored by someone at my firm.  (I’m not sure specifically whom to credit for the tip, I just know it wasn’t me.)  The article summarizes a January 2010 decision authored by Seventh Circuit Court of Appeals Judge Richard Posner regarding the impact of a denial of class certification under the Class Action Fairness Act.  The case is Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805 (7th Cir. 2010).  A full copy of the opinion is available courtesy of the good folks at the CAFA Law Blog.  Here’s a link to the Baker Hostetler article.

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Here are some blog posts from the (2) weeks that were that might be of interest to class action practitioners:

Responses to the October 29 CABWR “Lay Down the Gauntlet” Challenge of the Week

Many thanks to Walter Olson at Point of Law for posting a link to the “Lay Down the Gauntlet” Challenge of the Week from the last CABWR, but alas, my question was either too uninformed to justify a response or so brilliant that everyone was stumped.  Or maybe Walter Olson is my only reader.  I guess if you only had one reader, he wouldn’t be a bad choice.  Oh well…


Class Action Decisions

The UCL Practitioner provides a thorough analysis of the Seventh Circuit Court of Appeals decision in Thorogood v. Sears, Roebuck & Co., ___ F.3d ___ (7th Cir. Oct. 28, 2008) addressing aggregate class proof, in which Judge Posner quipped: “At argument the plaintiff’s lawyer, skeptical that men ever operate clothes dryers—oddly, since his client does—asked us to ask our wives whether they are concerned about rust stains in their dryers. None is.”


FiercePharma and Pharmalot discuss a Florida federal court’s decision dismissing a RICO case filed against a drug manufacturer for alleged fraud in its marketing practices about the safety and effectiveness of its product, a decision that appears to conflict with Judge Weinstein’s recent Zyprexa decision (discussed at the recent National Institute on Class Actions):



Consumer Law & Policy Blog comments on a New York state appellate court decision holding that incentive awards may not be given to named plaintiffs in class action settlements:


Wild Wild Law discusses a Nevada court’s decision to deny class certification in a case involving allegations that an endoscopy clinic’s use of needles contaminated with Hepatitis C and its subsequent notification to patients who may have been exposed, caused severe emotional distress.  (See ClassActionBlawg entry on the case here):


Florida ADR Law.com provides a synopsis of a Florida federal court’s decision to uphold a class arbitration waiver provision in a consumer mobile phone service contract:


First Mediation summarizes a California Court of Appeal decision overturning the approval of a class action settlement in part because the court had not inquired about data underlying settlement communications made during a mediation:


The Am Law Daily provides an update on a high-stakes antitrust class action against railroad operators:


ZoneBlitz provides commentary and reaction to the jury’s verdict in favor of former NFL players in a class action against the NFLPA.  (See ClassActionBlawg entry here):


Spamnotes reacts to a Second Circuit Court of Appeals decision rejecting class certification under the Telephone Consumer Protection Act (TCPA):


Drug and Device Law Blog provides a synopsis of a Massachussets federal court’s decision to limit the amount of a fee award in a class action settlement to the actual benefits claimed as opposed to the theoretical benefits obtained for class members:


The Complex Litigator discusses a rare appellate decision siding with an objector to a class action settlement:


As always when I miss a week of CABWR, CAFA Law Blog has numerous great summaries on recent CAFA decisions, so I’ll just direct you to the main page.  Ditto for Class Action Defense Blog and its numerous case summaries on various class action-related topics:

Class Action Trends

The D&O Diary summarizes a recent NERA Economic Consulting report on trends in SEC settlements an their values following the passage of Sarbanes Oxley…


… and comments on future of the plaintiffs’ securities bar in light of recent scandals involving high profile lawyers:


Boston ERISA and Insurance Litigation Blog discusses a trend away from securities class actions and toward ERISA breach of fiduciary duty class actions:


CAFA Law Blog offers some astute but unfortunately unconfirmed quotations on developments on the Class Action Fairness Act of 2005 from former VP candidate Sarah Palin in summarizing papers presented at a 2007 Penn Law Review symposium on CAFA:


Jim Hamilton’s World of Securities Regulation discusses the difficulties of bringing a securities fraud class action in the Fifth Circuit in light of its recent decisions on loss causation:


The Race to the Bottom offers a multi-part analysis of trends in lower court cases addressing the Private Litigation Securities Reform Act of 1996 (PRLSA) since the U.S. Supreme Court’s 2007 decision in Tellabs, Inc. v. Makor Issues & Rights:




Class Action Commentary

Peter Brantley’s thoughts and speculations include a commentary on the impact of a proposed class action settlement in “arguably assisting in the creation of a monopoly”:


Wage Law provides an analysis of the propriety of a defendant filing a preemptive motion to reject class certification before any class is certified:


The Legal Infrastructure of Business discusses entertaining comments made in exclusion (opt-out) requests filed by would-be members of an Iowa consumer class:


Portfolio.com opines on the possible impact to New York City Mayor Bloomberg’s re-election bid of a discrimination class action filed by pregnant workers against the company that bears his name:


North Carolina Business Litigation Report comments on public comments by the N.C. state treasurer and other prominent people and how those comments reflect public sentiment regarding a proposed bank merger that a pending shareholder class action seeks to enjoin:


Overlawyered discusses a multi-million dollar settlement of claims against the Mexican government for alleged unpaid benefit amounts owed to workers who came to the U.S. during World War II as part of a guest worker program:


WiredMag comments that class actions “that seem funny aren’t always a laughing matter” to those involved, including one in which a plaintiff claims to have been tricked into paying premium fees for an Internet networking service based on representations that his classmates were looking for him…


… more on the same case fromVibe …


… and In other non-humorous Class Action News

Reacting to a class action filing that was tailor-made for the blogosphere, The ConsumeristSheFinds, Consumer Reports Blog, Jamerican Muslimah: Talking it Plain, Blogue, Behind Blue Eyes, The Red Dress Diary, Style Crunch and Winn & Tonic (and about a zillion others) offer varying perspectives on a putative class action filed against a well-known seller of women’s intimate apparel for allegedly selling bras treated with a substance that caused skin rashes:









Pro Football Talk summarizes the claims in a would-be class action filed by an NFL player against the manufacturer of a nutritional supplement manufacturer for failing to disclose to consumers that its product included a controlled substance–a substance perhaps not coincidently was banned by the NFL, and for which several current NFL players have tested positive:


International Class Action Law

This South China Morning Post editorial discussing Hong Kong’s lack of a class action procedure and suggesting that now may be the time to adopt one and change the rules prohibiting contingent fees:


See this entry in Tan Kin Lian’s Blog for a link to the full article:


Several months ago, I commented on a story from Finnish newspaper YLE discussing Finland’s never-once-used class action law.  Well, according to this story, the wait is over.  Apparently, the consumer ombudsman has filed a class action over problems with an electronic voting system used during recent municipal elections:


FP Legal Post offers tips for defendants in avoiding class action exposure in Canada through proactive internal complaint resolution:


大海的道味 discusses a legal battle facing two Internet companies in Argentina in a case that the author says “amounts to a class action suit against the Internet companies, although there is no such thing as a class action suit in Argentina”:


Legal Theory Blog and Mass Tort Litigation Blog provide an abstract of a scholarly article by NYU Law Professors Samuel Issacharoff and Geoffrey P. Miller entitled “Will Aggregate Litigation Come to Europe?”:



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Here are links to some blog posts from the week that was that might be of interest to class action practitioners:

Class Action Decisions

Class Action Defense Blog reviews a recent decision by the U.S. District Court for the Eastern District of Missouri denying class certification in consolidated cases filed by U.S. rice growers against the manufacturer of genetically modified rice seed for allegedly contaminating the U.S. rice supply.  The court denied certification on predominance grounds despite an argument by the plaintiffs that because of bans on the genetically-modified traits outside the U.S., the contamination had the effect of reducing the overall market price of U.S. rice prices, finding that the actual price of rice for any given grower depended on a variety of other factors:


Delaware Corporate and Commercial Litigation Blog comments on a class action with an intriguing procedural history: a class action settlement was disapproved, an objector became the class representative, and then a later settlement was approved over objections that the class representative was inadequate for failing to monitor class counsel:


Class Action Articles

CAFA Law Blog summarizes a case note analyzing the Class Action Fairness Act (CAFA)’s jurisdictional burden of proof and a law review article authored by Tulane Law Professor Edward F. Sherman exploring CAFA’s various provisions:


http://www.cafalawblog.com/ (See entry entitled “Rekindled: Sherman’s March Through The Class Action Fairness Act Continues . . . .”)

Drug and Device Law Blog summarizes various articles in a symposium issue of the Tulane Law Review addressing issues relating to Multidistrict Litigation (MDL), including the use of MDL as alternative when a class action is not appropriate and the use of bellwether trials in MDL:


Class Action Commentary

Point of Law offers an analysis of the application of the cy pres doctrine in class action awards.  (See previous ClassActionBlog.com entry here):


The Oklahoma Opinion has some criticisms of class action settlements:


Beanstalk Talk recounts frustrations with not being able to participate in a class action settlement due to the inability to present service receipts as proof of his claim:


Goddess Rising reports on a class action lawsuit filed by a self-described anti-feminist claiming that Columbia University’s women’s studies program is discriminatory because its curriculum has instilled in women a hatred towards men and a belief that men are the root of all evil…


… more from Kay Steiger on the same case


… more from Cogitamus on the same case and on earlier actions by the same plaintiff, including one seeking damages from New York nightclubs for charging him more than women on “Ladies Night”… 


… (and no, this “guy’s rights advocate” is apparently not a character from Ally McBeal)

Class Action Trends

The Complex Litigator addresses developments in California law regarding a proposed class representative’s right to discovery of information concerning other would-be class members:


The D&O Diary surveys the latest in subprime-related class action filings:


SEC Actions reports on trends in securities class actions:


The Bizop News discusses trends in remedies in misleading advertizing class actions:


Class Action Scandals

Point of Law links to a series of Examiner newspaper articles on convicted trial lawyer William Lerach…


…and more comments from ShopFloor on the William Lerach scandal:


International Class Action Law
Overlawyered provides a link to an article about an unsuccessful toxic tort class action in Saudi Arabia:


Homodox comments on the case of the Knights Templar vs. the Pope (see ClassActionBlawg.com entry here):


Practice Tips

The UCL Practitioner comments on a recent California Court of Appeal decision upholding an order granting a defendant’s motion to strike class allegation before the filing of a class certification motion and offers possible arguments that plaintiffs’ counsel might make when facing a similar preemptive motion:


Class Action Reform

Green Country Values quotes a recent article on LegalNewsline.com, which discusses proposed reforms aimed at preventing state attorneys general from profiting from the legal actions they bring, and comments on the impact that those reforms might have on the desirability of the office:

Class Action News
Check out these entries in Honolulu Adviser and Ticket News about a Hawaii court’s decision to grant class certification to a class of Aerosmith fans after a canceled Maui concert (I have resisted the urge to make one of several possible puns using the title of an Aerosmith song. You’ll have to wait for the CAFA Law Blog post for that):



Mass Tort Litigation Blog comments on a news report about an Iraqi contractor who has filed a would-be class action against a government contractor for alleged inadequate training of its employees before sending them to work in Iraq:


NARF News reports on a hearing on several pretrial motions in a putative class action filed by several American Indian tribes against the United States Department of the Interior seeking an accounting of lands held in trust for 260 tribes:


Ink Slinger reports on the success of various age discrimination class actions brought by over-40 Hollywood TV writers:


Business Opinions offers a modest proposal for resolving a class action lawsuit filed against the Quebec gaming commission by a would-be class of gambling addicts:


The Wall Street Journal Health Blog reports on FTC statements made regarding the lack of evidence of any health benefits associated with a product marketed by a dietary supplement company to fight colds, and the company’s response, which included the quip, “We’re just one of many major consumer brands across America that are under assault by class-action lawyers”…


… and more on the same story from Wallstrip:


Cryptozoology News

Finally, I’m very saddened to report that my hopes of confirmation that Bigfoot exists were dashed today with news that the discovery of a Bigfoot corpse turned out to be a hoax!  I still believe…

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Due to my blog sabbatical last week, here are two weeks worth of blog postings that might be of interest to class action practitioners:

Class Action Decisions

The folks at CAFA Law Blog decided to post a great new entry on a recent Class Action Fairness Act decision seemingly every few minutes during the past week, so rather than summarize them here, I’ll just direct you to the main page:


The same goes for the numerous summaries of class action decisions available at Class Action Defense Blog:


North Carolina Business Litigation Report reviews a decision by the Business Court of that state establishing rules to be followed in the event of a pre-certification dismissal of a class action:


NJ Personal Injury and Civil Cases summarizes a recent New Jersey state court decision addressing the proper forum for adjudicating whether the filing of an individual action in New Jersey constituted a valid opt out from a nationwide class action settlement in Tennessee:


Kotaku.com summarizes the trial court’s denial of class certification in a proposed class action settlement of claims against a video game company for including offensive scenes in its video game…


… more from GamePolitics.com on the same decision…


… and Overlawyered contributor Ted Frank, who had appeared as an objector in the case, provides some commentary on the decision:


The UCL Practitioner comments on a recent New Mexico Supreme Court decision invalidating class arbitration waivers in certain consumer contracts and discusses other recent developments regarding the enforcement of class arbitration waivers:


For reviews of recent California federal district court and Ninth Circuit Court of Appeals’ decisions in wage and hour claims in the wake of the California Court of Appeal’s recent decision in Brinker (see link to summary here), see this entry from The Complex Litigator (citing entries from The UCL Practitioner and Alaska Employment Law)…


… and for more news related to the fallout from Brinker, see various other posts from The Complex Litigator:


Class Action News

The Am Law Daily provides summaries of various news items involving class actions, including a summary of the recent National Law Journal article discussing cy pres awards, a judgment in favor of Indian tribes in class action against the U.S. Government involving lands held in trust, and trends in securities class actions:


Northern Law Blog reports on a settlement in a class action filed on behalf of Division 1 football and men’s basketball players against the NCAA involving claims for underpayment of financial aid:


Wage Law Blog reports on a class action filed against the California Department of Labor on behalf of employers who are the subject administrative action by that agency for lost wages sought by illegal aliens:


Class Action Commentary

Jere Beasley Report comments on the potential impact of a forthcoming decision by the Seventh Circuit Court of Appeals in a putative class action brought by homeowners for mortgage fraud under the TILA:


Personal Injury Law Firm discusses the benefits and disadvantages of pursuing an asbestos case individually or as a class action:


NCPA Idea House comments on a recent report issued by the U.S. Chamber of Commerce Institute for Legal Reform (ILR) addressing trends in securities class actions and providing proposals for reforms. (See previous ClassActionBlawg.com entry here)


… more on the report from Law Librarian Blog


… and from the U.S. Chamber’s own blog, Chamber Post:


Makeup Blog offers some criticisms of consumer class action settlements:


Mass Tort Litigation Blog provides a link to Scadden’s July 2008 Issue of Class Action Chronicle, which in turn has some great commentary on class action issues including communications with class members, defending class action trials, and trends in consumer class actions:


Re: the Auditors has criticisms of practices by companies and their auditors in disclosures of legal contingencies posed by pending class actions:


Point of Law reviews a recent Wall Street Journal op-ed arguing that cy pres remedies in class actions are unconstitutional (See ClassActionBlawg.com entry here):


Class Action Trends

Another law blog with too much great content over the past two weeks to summarize here is The D&O Diary, which summarizes trends in securities litigation and analyzes developments in several specific securities class actions:


Drug and Device Law Blog collects cases that address cross jurisdictional class action tolling in this entry:


Crain’s New York Business reports on a sharp increase in the number of class action securities lawsuits in New York City, spawned by the subprime mortgage crisis…


…while DC Dicta provides an overview of an ABA Journal article discussing statistics on subprime-related securities class action lawsuits from Cornerstone Research and Stanford Law School’s Securities Class Action Clearinghouse:


NJ HELOC Heaven predicts that class actions lawsuits will follow from lenders’ decisions to reduce existing customers’ Home Equity Lines of Credit (HELOCs):


Point of Law discusses the latest in FACTA cases, which it describes as the “‘Gotcha’ statute on credit slip privacy.”


International Class Action Law

Hannah Buxbaum provides a guest post on IntLawGrrls summarizing her article, Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, Columbia Journal of Transnational Law, Vol. 46, Issue 1, which addresses “foreign-cubed” securities class actions, or class actions brought in U.S. courts by foreign investors against foreign companies and brought on foreign exchanges:


The UCL Practitioner provides a link to a website with great content on class action laws around the globe. (Also see this ClassActionBlawg.com entry discussing similar content offered by Stanford Law School):


Practice Tips

In its Bulletproof Blog, Levick Communications provides advice to defendants on proactive alternatives to blanket denials in waging the PR battle in high stakes litigation:


Mass Private I reviews a consumer website called www.RipoffReport.com, which it says is used by various law enforcement agencies and law firms to perform background checks on businesses:


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If you’re interested in what “appropriate” governmental officals could do after receiving notice of a federal class action settlement, here’s a case that might interest you.  (See my earlier entries on the official notice requirements of 28 U.S.C. 1715 dated March 28 and April 9).  In Figueroa v. Sharper Image Corp., Case No. 05-21251-CIV-ALTONAGA/Bandstra (S.D. Fla., Oct. 11, 2007) (Click Here for a Copy of the Order), the court denied final approval of a coupon settlement in no small part due to an amicus brief critical of the settlement filed by Attorneys General of about 35 states and the District of Columbia.  This is one of the rare cases after the passage of CAFA in which government officials have actually taken steps to comment on the settlement after receiving notice, but it reflects both the influence that government officials may have on a class action settlement if they believe that it is necessary to take action and  means by which they might take action if they choose to do so.  The statute does not prescribe or even expressly permit any particular action to be taken by officials in response to a CAFA notice, but as the Sharper Image decision illustrates, an amicus brief filed by one or more officials in objection to a settlement is likely to strongly influence the court’s final approval decision.

Many thanks to Andy McCallin of the Colorado AG’s office for tipping me off to this decision.  Andy gave a fantastic presentation today on the role of the “appropriate” state officials under CAFA for the inaugural CLE luncheon sponsored by the CBA Class Actions subsection.

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The Class Action Blogosphere Weekly Review is back on its regularly scheduled day this week.  As always, here are some blog entries that might be of interest to class action practitioners…

See Carlton Fields’ class action blog Classified for links to various news tidbits relating to class actions, including a summary of a bill recently passed in the United States House of Representatives that would amend the Fair and Accurate Transaction Act (FACTA) to, among other things, “ensure that it is not abused by frivolous class-action lawsuits against businesses.”


Class Action Defense Blog summarizes and provides a link to a transfer of venue decision by the U.S. District Court for the Southern District of New York noting that the deference to be given to a plaintiff’s choice of forum is “diminished” in a class action:


The Complex Litigator comments on a recent entry in California Punitive Damages regarding an appeal that may affect punitive damages claims in wage and hour class actions:



Drug and Device Law Blog provides an in-depth analysis of and a link to the Second Circuit Court of Appeals’ recent decision in Pew v. Cardarelli, No. 06-5703-mv, slip op. (2d Cir. May 13, 2008), which addresses the procedures for appellate review of remand orders in cases removed under the Class Action Fairness Act…


… and see more on the same decision from the Consumer Law & Policy Blog


The D&O Diary continues to be the leading source of information on litigation arising out of the subprime mortgage crisis:


How Appealing discusses a recent Sixth Circuit Court of Appeals decision upholding a large verdict in an antitrust class action:


Federal Civil Practice Bulletin discusses a recent First Circuit Court of Appeals decision discussing the level of merits evaluation required (as opposed to allowed) at the class certification stage:


Elizabeth Cabraser submits entry as a guest blogger on ACSBlog regarding the use of class actions as a tool for change and social justice:


Law and More comments on the Deutsche Telekom trial and the possibility that Germany may adopt an American-style class action model (see my earlier entry here)


Canadian blog FP Legal Post comments on recent competition class action decisions in the Canadian courts:


Startup Company Lawyer provides some practice tips for directors and officers on ways to minimize potential class action exposure resulting from the sale of a company:


Too Old to Know Better discusses a website allowing users to submit grievances for review by a consortium of plaintiffs’ class action lawyers (see my commentary on related topics here and here):


A franchise lawyer provides his views on the use of the class action device in franchisee’s rights’ cases on Blue Maumau:


Sabal Insurance Group‘s blog summarizes a seminar addressing trends in shareholder class actions in the insurance industry:


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