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Posts Tagged ‘tila’

As the new year approaches, everyone seems to be doing a “top ten” list for 2008, so of course, ClassActionBlawg has to have one too.  However, this “top ten” list has two improvements.  First, the rankings will be decided by reader vote.  Second, and even better, it goes to 11!

So, here are some key class action decisions and trends from the year that was, in no particular order.  See the poll below to vote for the one you like best.  Feel free to submit comments with other suggestions, and maybe together we can make a top ten list so good that it will go higher than 11.  Best wishes to all in 2009.

  • RICO fraud class actions show promise after Supreme Court’s decision in Bridge v. Phoenix Bond & Indemnity Co., 553 U.S.. —. , 128 S.Ct. 2131 (U.S. June 9, 2008) (holding that a plaintiff need not show first-party reliance in order to assert a claim under the federal RICO statute).
  • “Foreign Cubed” class actions show promise, then sputter a bit.  See Morrison v. National Australia Bank Ltd., 2008 WL 4660742 (2d Cir. Oct. 23, 2008) (discussing federal jurisdiction over “foreign cubed” securities class actions).
  • Fraud on the market theories are tested in consumer fraud cases.  See McLaughlin v. Philip Morris USA, Inc., 522 F.3d 215 (2d Cir. 2008) (rejecting class certification on various consumer fraud theories, including the “fraud on the market theory”).
  • Courts reject certification of FACTA Class Actions on superiority grounds based on reasoning that class exposure would be grossly disproportionate to the alleged harm to consumers.  See, e.g., this recent California federal court decision summarized at Class Action Defense Blog.
  • California courts address certification of wage and hour class actions involving unpaid wages for time worked during meal and rest breaksSee Brinker Restaurant Corp. v. Superior Court (2008), 165 Cal. App. 4th 25, review granted (Oct. 22, 2008).
  • Truth in Lending Act (TILA) actions seeking rescission of mortgages due to alleged predatory lending deemed unsuitable for class treatment.  See Andrews v. Chevy Chase Bank, No. 07-1327 (7th Cir., Sept. 24, 2008)
  • Class actions for damages caused by pollution where defendant has complied with applicable regulations see mixed results in the U.S. and Canada.
  • The Second Circuit Court of Appeals holds that a preponderance of the evidence standard of proof applies in determining whether the elements of class certification have been satisfied in Teamsters Local 445 Freight Division Pension Fund v. Bombardier, Inc., Case No. 06-3794-cv (2d Cir. Oct. 14, 2008).
  • Italy’s new class action law takes effect, while other European countries consider class action reforms.
  • Class action scandals involving illegal kickback and bribery schemes result in prison sentences for class action lawyers Melvin Weiss, William Lerach, Dickie Scruggs and others.
  • The Supreme Court rejects “scheme liability” in securities fraud cases in Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008)

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

Class Action Blog Post Title of the Week

CAFA Law Blog‘s entries often make me chuckle, but here is one that had me rolling for some reason (probably lack of sleep due to late night blogging): “Plaintiff Gets His Bic Flicked on a CAFA Removal in California”:

http://www.cafalawblog.com/-case-summaries-plaintiff-gets-his-bic-flicked-on-a-cafa-removal-in-california.html 

Class Action Decisions

The Complex Litigator and The UCL Practitioner  both offer commentary on a California Court of Appeal decision addressing the collateral estoppel effect of a final order denying class certification on a subsequent class action brought by a different named plaintiff but raising the same claims:

http://www.uclpractitioner.com/2006/10/new_class_certi.html

http://www.thecomplexlitigator.com/2008/10/procedural-news.html

Class Action Defense Blog summarizes an Eighth Circuit Court of Appeals decision upholding a class arbitration waiver clause:

http://classactiondefense.jmbm.com/2008/10/arbitration_class_action_defen_9.html 

Class Action Trends

Compliance Week provides some excellent commentary on the rise of subprime mortgage litigation in an article that includes quotes on subprime litigation trends from The D&O Diary‘s Kevin LaCroix and one of my law partners, Fritz Chockley:

http://www.complianceweek.com/article/5079/sub-prime-litigation-its-only-just-begun

For synopses of various cases addressing Truth in Lending Act (TILA) issues, including the viability of class actions for rescission of mortgages, see this entry from Foreclosure Combatant.  (Note that the Seventh Circuit Court of Appeals recently overturned the decision in Andrews v. Chevy Chase Bank.  See this September 26 CAB Entry).

http://loanaudit.wordpress.com/2008/10/15/truth-in-lending-act-developments/

Mass Tort Litigation Blog provides information about the speakers scheduled for the upcoming 12th Annual ABA National Institute on Class Actions in New York City:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/10/12th-annual-aba.html

Class Action News

RetiredPlayers.org reports on the commencement of the trial in a class action brought on behalf of former NFL players against the NFL Players’ Association and Player’s, Inc. seeking a share of licensing revenues:

http://retiredplayers.org/2008/10/15/retired-players-class-action-trial-to-begin-next-week/

The D&O Diary reports on what may be the first settlement of a subprime-related securities class action:

http://www.dandodiary.com/2008/10/articles/subprime-litigation/first-subprime-securities-lawsuit-settlement/

Overlawyered provides a link to a Connecticut Employment Law Blog entry updating readers on proceedings in an employment class action filed by several professional wrestlers against WWE and discussing why the case may have broader implications in cases involving the distinction between an employee and independent contractor.  (Aside-There’s still no sign of a consumer fraud class action against professional wrestling on the grounds that it is fake–I know, it would be extremely difficult to prove):

http://overlawyered.com/2008/10/update-wrestlers-class-action-against-wwe/

http://www.ctemploymentlawblog.com/2008/10/articles/decisions-and-rulings/wwe-lawsuit-update-what-you-need-to-know/

Class Action Commentary

Legal Radar comments on the impact of the denial of class certification in cases brought by rice farmers against a seed manufacturer for alleged contamination caused by its genetically modified seeds:

http://www.legalradar.com/2008/10/class-action-ag.html

Pro Publica discusses the challenge facing the plaintiffs in securities class actions filed in the wake of the recent credit crisis in light of the heightened burden of proof in securities class actions under the 1995 Private Securities Litigation Reform Act (PSLRA):

http://www.propublica.org/article/fraud-suits-in-the-pipeline-face-high-burden-of-proof-1014/#When:16:13:01Z

TM&S offers commentary on the “fairness” of the Fair and Accurate Credit Transactions Act of 2003 (FACTA), which has generated controversy by providing a vehicle for class action liability to small business due to technical violations of credit card receipt requirements…

http://www.tmspay.com/2008/10/14/is-facta-really-fair-and-accurate/

… and here’s more insightful FACTA commentary from guest columnist Randy J. Maniloff, writing for Point of Law:

http://www.pointoflaw.com/columns/archives/2008/10/whole-enchilada-inc-v-traveler.php

Class Action Reform

Drug and Device Law follows up on a recent post discussing Michigan Law Professor Adam Pritchard’s idea for corporations to stave off “fraud on the market” securities class actions through amendments to their articles of incorporation:

http://druganddevicelaw.blogspot.com/2008/10/end-of-securities-fraud-class-actions_15.html

International Class Action Law

News Link provides a brief introduction to class action law in India:

http://www.newslink.in/2008/10/15/all-about-the-class-action-lawsuit/

Pogo Was Right responds to a Korea Times article discussing a potential class action suit against an Internet company accused of leaking private consumer information.  The news article includes a description of an interesting dispute resolution procedure to be employed prior to trial:

http://www.pogowasright.org/article.php?story=20081012081754274

With Vigour and Zeal summarizes a report issued by the law firm Fullbright & Jaworski on litigation trends and statistics, including statistics on UK companies facing class actions in the US and on subprime-related class actions:

http://kranenburgesq.com/blog/2008/10/fulbrights-fifth/

Class Action Potpourri

Legal Writing Competitions announces a law student writing competition in which the winner will be selected for publication in Class Action Reports:

http://legalwritingcompetitions.blogspot.com/2008/10/class-action-reports-publication.html

Hair Balls reports on the case of a disgruntled traveler who brought a class action against an airline for having to pay a fuel surcharge for a flight he didn’t take:

http://blogs.houstonpress.com/hairballs/2008/10/guy_sues_continental_airlines.php

Cannabis Liberty muses about the possibility of a class action to vindicate the victims of false positives in drug testing due to their choice of adopting an “organic natural lifestyle”:

http://cannabisliberty.com/2008/10/09/a-class-action-suit-id-like-to-see/

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The Seventh Circuit Court of Appeals’s highly anticipated Truth In Lending Act (TILA) class action decision in Andrews v. Chevy Chase Bank, No. 07-1327 (7th Cir., Sept. 24, 2008) was finally issued Wednesday.  The court reversed the district court’s class certification decision and joined the First and Fifth Circuit Courts of Appeals in holding that the TILA’s rescision remedy (at the risk of oversimplification, the right to back out of the deal), is not suitable for class-wide treatment.  The case involves claims by a Wisconsin couple that their mortgage lender violated TILA, 15 U.S.C. § 1635, by misrepresenting facts in selling them an adjustable rate mortgage (ARM) of the type that is the center of the current subprime lending crisis.  The opinion, authored by Judge Diane S. Sykes, is available for download on the court’s website.

As usual, Class Action Defense Blog has already posted a thorough summary of the decision, so rather than repeating the nuances of the decision here, I’ll direct you to that post.

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