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Posts Tagged ‘TCPA Class Action’

Don’t miss the upcoming Strafford webinar on recent developments in TCPA class actions, scheduled for March 20.  My colleague Justin Winquist and I will provide commentary from the defense perspective, while Keith J. Keogh and John G. Watts will offer the plaintiffs’ viewpoint.  For more information about the program and to register, click this link.  Here’s a brief synopsis of the program:

TCPA consumer and privacy class action litigation remains steady following the 2012 milestone U.S. Supreme Court case Mims v. Arrow Financial Services.

The Mims case opened the door for plaintiffs’ attorneys to file TCPA class actions in state or federal court, even where diversity jurisdiction does not exist. Since Mims, defendants have tested state law limitations on federal claims and whether state or federal statutes of limitations defenses apply.

TCPA claims challenging text messages to cellphones are also on the rise, forcing courts to consider how to interpret the Act in light of new technology.

Listen as our authoritative panel of class action attorneys explains the latest trends in telephone and fax advertising under the TCPA, highlighting key issues of federal jurisdiction, state law limitations, and how courts are adapting their decisions to new technology. The panel will provide plaintiff and defense counsel with best practices for litigating in this rapidly-changing area of law.

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My colleagues at BakerHostetler have put together some great content on several class action-related topics recently that readers should find interesting.

First, the Baker Hostetler Class Action Defense Team issued an executive alert today discussing the Supreme Court’s decision to grant certiorari in another case involving class arbitration waivers.  The alert, titled U.S. Supreme Court Considers Arbitration Clauses and Class Actions Next Year, summarizes the issues to be addressed in Oxford Health Plans LLC v. Sutter.  The alert was authored by newly elected Cleveland Partner Ruth E. Hartman and Class Action Defense Team Leader Ernie Vargo.

Another executive alert, titled Recent Trends in Class Actions for Telephone and Fax Solicitation and Advertising, was issued last week by the Privacy and Data Protection and Class Action Defense Teams.   The alert, authored by my colleague in Denver, Justin Winquist, summarizes the latest trends in class action litigation under the Telephone Consumer Protection Act (TCPA).

Finally, my partner Casie Collignon authored a blog post yesterday with an update on the latest in the ongoing saga of Dukes v. Wal-Mart on remand following the U.S. Supreme Court’s decision.  The post is entitled, California District Court Awaits Class Certification Motion in Wal-Mart.

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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…

http://www.pointoflaw.com/archives/2008/11/meal-and-rest-b.php

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.”

http://www.uclpractitioner.com/2008/11/new-seventh-circuit-class-certification-decision-thorogood-v-sears-roebuck-co.html

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):

http://www.fiercepharma.com/story/judge-throws-out-rico-class-action/2008-11-11?utm_medium=rss&utm_source=rss&cmp-id=OTC-RSS-FP0 

http://www.pharmalot.com/2008/11/judge-tosses-rico-lawsuit-against-astrazeneca/

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:

http://pubcit.typepad.com/clpblog/2008/11/new-york-appell.html

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):

http://wildwildlaw.blogspot.com/2008/11/class-action-denied.html

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:

http://floridaarbitrationlaw.com/blogs/index.php?blog=5&title=atat_wireless_iphone_arbitration_class_a&more=1&c=1&tb=1&pb=1

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:

http://www.firstmediation.com/blog/?p=335

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

http://amlawdaily.typepad.com/amlawdaily/2008/11/the-am-law-li-6.html

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):

http://www.zoneblitz.com/2008/11/10/jury-awards-former-football-stars-281-million/

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

http://spamnotes.com/2008/11/08/second-circuit–no-tcpa-class-action-in-ny.aspx

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:

http://druganddevicelaw.blogspot.com/2008/11/class-action-settlement-rant-tjx.html

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

http://www.thecomplexlitigator.com/2008/11/in-kullar-v-foot-locker-retail-inc-court-of-appeal-sides-with-objector-to-class-action-settlement.html

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…

http://www.dandodiary.com/2008/11/articles/securities-litigation/nera-study-details-postsox-sec-settlements/

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

http://www.dandodiary.com/2008/11/articles/plaintiffs-bar/the-future-of-the-plaintiffs-securities-bar/

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

http://www.bostonerisalaw.com/archives/401k-plans-you-say-securities-law-i-say-erisa.html

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:

http://www.cafalawblog.com/-resources-does-palin-know-cafa-you-betcha-thanks-to-the-2007-university-of-pennsylvania-law-review-symposium-and-accompanying-articles.html

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:

http://jimhamiltonblog.blogspot.com/2008/11/lost-causes-fraud-pleading-in-5th.html

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:

http://www.theracetothebottom.org/home/the-tellabs-excuse-a-recappart-1.html

http://www.theracetothebottom.org/home/the-tellabs-excuse-a-recappart-2.html

http://www.theracetothebottom.org/home/2008/11/12/the-tellabs-excuse-a-recappart-3.html

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”:

http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/06/class-action-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:

http://www.californiawagelaw.com/wage_law/2008/11/motions-to-pre-de-certify.html

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

http://picker.typepad.com/legal_infrastructure_of_b/2008/11/dont-count-me-i.html

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:

http://www.portfolio.com/executives/features/2008/11/11/Gender-Discrimination-at-Bloomberg

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:

http://www.ncbusinesslitigationreport.com/2008/11/articles/class-actions/north-carolina-state-treasurer-says-wachoviawells-fargo-merger-is-highway-robbery/

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:

http://overlawyered.com/2008/11/wwii-era-mexican-braceros-settlement/

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…

http://wiredmag.livejournal.com/3526145.html

… more on the same case fromVibe …

http://www.vibetechmag.com/?p=2809

… 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:

http://consumerist.com/5084654/class-action-lawsuit-victorias-secret-bras-causing-skin-rashes

http://www.shefinds.com/blog/index.php/weblog/comments/news_victorias_secret_causes_a_rash/#When:13:00:43Z

http://consumerreportsblog.blogspot.com/2008/11/class-action-suit-claims-damages-caused.html

http://jamericanmuslimah.wordpress.com/2008/11/12/is-your-vickis-bra-making-you-sick/

http://blogue.us/2008/11/12/we-know-victorias-secret/

http://bechindblueeyes.blogspot.com/2008/11/victorias-secretformaldehyde-bras.html

http://style.popcrunch.com/victorias-secret-is-sexy-but-it-may-be-dangerous/

http://winnandtonic.wordpress.com/2008/11/11/victoria-secrets-bras-mutilate-breasts-no-bra-look-to-return/

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:

http://www.profootballtalk.com/2008/11/10/grady-jackson-files-starcaps-class-action/

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:

http://www.scmp.com/portal/site/SCMP/menuitem.2c913216495213d5df646910cba0a0a0/?vgnextoid=1357e46f3178d110VgnVCM100000360a0a0aRCRD&vgnextfmt=teaser&ss=insight&s=opinion

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

http://tankinlian.blogspot.com/2008/11/scmptime-to-reconsider-class-action.html

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:

http://www.yle.fi/news/id107325.html

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

http://network.nationalpost.com/np/blogs/legalpost/archive/2008/11/10/preventative-measures-for-class-action-defendants.aspx

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”:

http://zhou520530qq.blogspot.com/2008/11/argentine-judge-google-yahoo-must.html

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?”:

http://lsolum.typepad.com/legaltheory/2008/11/issacharoff-mil.html

http://lawprofessors.typepad.com/mass_tort_litigation/

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