Class-Action

Some Courts Come up With Restrictions to Block Class Actions

October 21, 2014 | Peter S. Lubin and Patrick Austermuehle

When a consumer feels she has been cheated by someone she bought a product or service from, the amount of her claim is often too small to warrant suing the seller. In that case, the consumer’s best bet is to collect a group of other consumers who have similarly been allegedly cheated and file a class action lawsuit. In order to successfully pursue a class action lawsuit though, a judge must grant the plaintiffs class action status, and in order for the judge to do that, the class of plaintiffs must fulfill certain requirements. These requirements include a class that is sufficiently large to warrant a class action, plaintiffs who can adequately represent the class, and complaints from class members that are sufficiently similar to warrant combining them into one action.

Another requirement that has caused much controversy in the courts lately is ascertainability, meaning there must be a way to identify all of the members of the class. This can be an issue in class actions filed against food producers or retailers, especially those who produce cheap food, for which consumers rarely keep their receipts. In Carrera v. Bayer, the plaintiff, Gabriel Carrera, sued Bayer on behalf of all consumers who had purchased Bayer’s One-A-Day WeightSmart diet supplement. According to the complaint, Bayer falsely advertised its diet supplement as having metabolism-boosting effects, based on the fact that it contained green tea extract. Continue reading ›

Class Action Against State Auto For Allegedly Inflating Home Values to Inflate Premium Revenues Can Proceed Ohio Federal Court Rules

October 1, 2014 | Peter S. Lubin and Patrick Austermuehle

The cost of everything goes up with inflation and insurance is no different. As the value of our things increases with time, it makes sense that people would want sufficient coverage for all of their belongings. This can become an issue though, when insurance companies insist on raising the limits on a plan (and thus raising the premiums) to levels that are much higher than the property can possibly be worth. Such is allegedly the case in a recent class action lawsuit against State Auto.

According to the complaint, the named plaintiffs, Mark and Andrea Schumacher, bought their home in 2001 for $234,000. They claim that they have made no improvements to the home since then, other than normal maintenance, and that its market value remains about the same. As evidence to support this assertion, the plaintiffs pointed out that the builder from whom they bought their home continues to construct homes in their neighborhood that are similar to the ones that they own, and sell them at a comparable price.

Despite that, State Auto, which has been insuring the Schumachers for years, allegedly increased their policy limit over the years until it stood at more than $500,000 as of 2013. According to the Schumachers, that is much more than what it would cost them to rebuild or replace their home, though it is important to note that there are two different ways of looking at that cost: 1) rebuilding from the ground up; and 2) buying a similar, older home. The cost of these two options can vary dramatically, depending on the market, and some people have a strong preference to buy insurance for one over the other. Continue reading ›

Chicago Based Federal Appellate Court Remands to Reconsider Denial of Class Certification

August 17, 2014 | Peter S. Lubin and Patrick Austermuehle

The landmark decision not to certify a class of plaintiffs in Wal-Mart Stores, Inc. v. Dukes has made it increasingly difficult for classes of plaintiffs to achieve certification. This is largely a result of the fact that the court in Wal-Mart determined that the class failed to meet the commonality requirement necessary for class certification. Courts all across the nation have been refusing certification to classes of plaintiffs that don’t have identical claims. According to the Seventh Circuit Court of Appeals, though, the reasoning behind refusal of class certification in Wal-Mart was much narrower than courts have been interpreting it.

IKO Roofing Shingle Products is currently facing a class action lawsuit from Debra Zanetti, which alleges that IKO’s organic asphalt roofing shingles were defective. According to the lawsuit, which Zanetti filed on behalf of all proposed class members, IKO’s shingles allegedly do not meet an industry standard known as ASTM D225. Compliance with this standard is commonly determined using a testing protocol known as ASTM D228. The lawsuit, which was initially filed in district court in Illinois, is seeking certification of a class of plaintiffs consisting of all consumers who purchased organic asphalt roofing tiles from IKO since 1979. The district court denied the class certification and the plaintiffs appealed the decision to the Seventh Circuit Court of Appeals.

The district court refused to certify the class on the basis of commonality. The district court determined that, per the prior decision made in Wal-Mart, it could not certify a class of plaintiffs without identical claims. The appellate court disagreed, though, pointing out that Wal-Mart failed to meet the commonality requirement for class certification based on the fact that the treatment of employees under different managers was too dissimilar. Since that is not the case here, the court concluded that the district court had erred in refusing class certification on the basis of commonality. Continue reading ›

Supreme Court Agrees to Hear Decision Regarding Procedures Regarding Remand to State Court of Actions Removed Under the Class Action Fairness Act

August 5, 2014 | Peter S. Lubin and Patrick Austermuehle

In the United States, we have multiple venues for addressing conflicts. Lawsuits that are filed can be handled by either the state or the federal courts or if there is an arbitration agreement preventing use of the courts through a private trial. In general, federal courts only handle large cases that cover multiple states and involve federal statutes or claims of $75,000 of over between citizens of different states or a country. The state courts tend to handle smaller cases in which the dispute is limited to one state. In some instances, a lawsuit may fit the jurisdiction for either state or federal court. In the past, plaintiffs in class action lawsuits could only file non-federal statutory claims only in state court.

In order to federalize most class actions, the Class Action Fairness Act (CAFA) was passed in 2005. This law allows defendants to move a class action lawsuit out of state court and into a federal court if the case meets three requirements: 1) The class must have at least 2 members who are citizens of different states; 2) the amount under dispute must reach at least $5 million; and 3) the class must consist of at least 100 members. If the lawsuit meets all of these criteria, the defendants can file a motion asking for the case to be moved to federal court. Since most federal courts tend to be fairly sympathetic towards defendants in class action lawsuits, this is a common practice for defendants involved in large legal disputes. Continue reading ›

LA Clippers Settle Junk Text Class Action By Providing Thousands of Tickets

July 26, 2014 | Peter S. Lubin and Patrick Austermuehle

For decades, calling customers, or potential customers, about a promotion was standard practice for most companies. Of course, many consumers found this to be annoying, but it was never overtly harmful. That changed with the advent of cell phones and prepaid plans. When landlines were the norm, the caller paid for the call. Now, cell phone users pay for the calls and text messages that they receive. As a result, legislators came up with the Telephone Consumer Protection Act (TCPA) to prevent companies from taking advantage of consumers by making them pay for promotional calls and texts. Under the act, companies are forbidden from making calls or texts to consumer phone numbers without the consumers’ express consent, except in the case of an emergency.

The Los Angeles basketball team, the Clippers, have recently settled a class action lawsuit for allegedly violating the TCPA. According to the lawsuit, fans of the California-based basketball team allegedly received promotional texts via autodialers from the Clippers without the required authorization. Rather than facing a long, drawn-out battle in court, which could be very costly and time-consuming, the Clippers and the class of plaintiffs have agreed to settle the case. Continue reading ›

State Farm Can Be Sued for Alleged TCPA Violations in Class Action for Auto-dialer Calls

July 6, 2014 | Peter S. Lubin and Patrick Austermuehle

With American legislature changing on a daily basis, it is not surprising to find that many of the laws out there contradict each other and courts are often called upon to determine which statute takes precedence. Such was the case in a recent lawsuit involving auto-calls made on behalf of State Farm.

In May 2007, Clara Betancourt applied for a car insurance policy with State Farm Mutual Automobile Insurance Company. While she was applying for the car insurance policy, a State Farm agent asked her if she would like to pay using a State Farm credit card. Betancourt agreed and the agent used the information provided by Betancourt for the car insurance application to apply for the credit card on Betancourt’s behalf. Betancourt provided the agent with her home phone number, her cell phone number, and her work phone number.

Betancourt testified that she provided these phone numbers to State Farm as emergency contact information to be used only “for an emergency or something serious.”

The three phone numbers that Betancourt provided all belonged to Fredy Osorio, with whom she has lived for many years and with whom she has a son.

When Betancourt failed to make a timely payment of the minimum balance on her credit card in November 2010, State Farm authorized FMS Inc., a collection agency, to attempt to collect the debt. State Farm provided FMS with Betancourt’s phone numbers and FMS proceeded to make 327 auto-dialed calls to these phone numbers in a six-month period. State Farm alleges that at no time did anyone answering the phone say that the number did not belong to Betancourt. By contrast, Osorio testified that he told State Farm agents to “Please stop calling” on two occasions. Continue reading ›

Supreme Court Preserves Fraud on the Market Theory in Securities Class Actions But Creates a New Defense

July 3, 2014 | Peter S. Lubin and Patrick Austermuehle

Companies need investors to fund the company’s progress. As a result, in the same way that companies try to play up the positive attributes of a product they are trying to sell, while leaving out the negative, so companies often paint themselves in a better light to try to attract shareholders. However, because shareholders are investing their money (rather than giving it away), companies maintain certain obligations to their shareholders.

When a company fails to hold up their end of the deal in treating fairly with their shareholders, investors have the option of suing the company for damages. When multiple shareholders are wronged, they can file as a class action, giving them greater leverage in the courts. Companies have long looked for ways to put a stop to class actions before they can attain class certification. Now it looks like they have finally gotten a foothold, but how significant that foothold is, remains to be seen.

A group of shareholders of Halliburton Co. filed a class action securities lawsuit against the company, alleging that Halliburton misled investors about cost overruns, its exposure to asbestos liabilities, and the benefits of its 1998 merger with Dresser Industries Inc. According to the lawsuit, by providing false information (or failing to reveal crucial information), Halliburton allegedly caused prices of its shares to increase artificially. Continue reading ›

Motion to Dismiss Filed in Class Action Suit Alleging Manipulation of NFL Ticket Prices

June 25, 2014 | Peter S. Lubin and Patrick Austermuehle

When considering filing a lawsuit against a company or individual, it is advisable to first make sure that you have a strong case. The first things to check are that you are covered under the relevant law and that you have a valid claim for loss of a certain monetary value. It is important to note that deciding not to buy something because the price was too high does not constitute a loss.

Ben Hoch-Parker disagrees. He and Josh Finkelman filed a class action lawsuit against the National Football League for allegedly violating the New Jersey Consumer Fraud Act (NJCFA). The lawsuit alleges that the NFL withholds 99% of its Super Bowl tickets from the general public. According to the lawsuit, the NFL gives 75% of the big game tickets to the 32 NFL teams. Five percent goes to the host team, 17.5% to each team that is represented in the Super Bowl, and the remaining 29 teams each get 1.2% of the tickets. Another 25% of the game tickets are then allegedly given to broadcast networks, media sponsors, the host committee, and other insiders.

Once the NFL’s member clubs have their tickets, the NFL allegedly places no restrictions on the sale of those tickets, allowing the NFL franchises to auction off their ticket allotments to the highest bidding ticket broker. The lawsuit alleges that, “The broker then sells the tickets for exorbitant amounts on the secondary market.”

The lawsuit is filing a claim for this allegedly illegal practice because the NJCFA states that at least 95% of tickets must be sold to the general public. Instead, the lawsuit alleges, every year, the NFL prints “tens of thousands of Super Bowl tickets, yet it only allocates a meager one percent of these tickets for release to the general public through a lottery system, forcing all other fans into a secondary market for the tickets where they must pay substantially more than the ticket’s face value to attend one of the most popular and iconic sports events of the year.” Continue reading ›

Melton Family’s Expert Discovered the Flaw in GM’s Ignition Switch

April 13, 2014 | Peter S. Lubin and Patrick Austermuehle

Once a mistake in the engineering of a car is made known, the maker of the vehicle has a responsibility to fix the mistake. However, to try to remedy the mistake in new cars, without recalling old cars with the defect, is illegal, and in some cases, potentially fatal. This was allegedly the case with General Motors (G.M.) when it realized that the ignition switch in more than 2 million of its cars was faulty. The car company worked with Delphi, the supplier that made the part, to redesign the part so that the flaw was fixed, but neither party allegedly bothered to alert the public to the flaw, which existed in millions of cars which had already been sold.

When Brooke Melton’s Cobalt suddenly shut off, causing her fatal accident in 2010, her family sued G.M. and Mark Hood was hired to investigate the accident. Hood photographed, X-rayed, and disassembled the ignition switch in his attempt to figure out how the engine suddenly shut off. Then he bought a replacement part at a local GM dealership.

Although the replacement switch that Hood bought had the same identification number as the old switch, it contained significant differences. A tiny metal plunger was not included in the replacement part and the switch’s spring was more compressed. According to Hood, there was also a difference in the amount of force needed to turn the engine on and off.
As Hood’s investigation progressed, he realized that both GM and Delphi had realized the mistake and changed the part some time in 2006 or early 2007. The new part made it less likely that the driver could bump the ignition key, causing the car to cut off power to the engine and deactivate the airbags.

Lance Cooper, the attorney representing the Melton family in the lawsuit, confronted Raymond DeGiorgio, the head switch engineer on the Cobalt, with the differences between the two switches. DeGiorgio acknowledged the differences between the two parts, but said that he could not explain why the new part had not been given a different identification number.
“I was not aware of the detent plunger switch change,” he testified in his deposition. “We certainly did not approve a detent plunger switch change.”

However, the paper trail tells a different story. In the federal filings for the recent recall of certain G.M. vehicles containing the defect, G.M. confessed than an engineer (whom they did not name) had in fact signed a document in April of 2006 which approved design changes in the switch. Government investigators have since requested that G.M. provide all documents related to the switch change and who within the company approved it.

Since Hood’s discovery of the allegedly clandestine part change, G.M. has issued a worldwide recall of 2.6 million vehicles, including Cobalts, Pontiacs, and Saturns. G.M. has said that it will replace the old part with the new one at no cost to vehicle owners. In the mean time, the company’s website contains a video which assures consumers that the old switches are still supposedly safe, so long as nothing is attached to the ignition key. A reported 13 deaths have occurred as a result of the faulty switches.

G.M. settled the lawsuit with the Melton family, but it is now facing a class-action lawsuit which consists of all owners of vehicles included in the recall. The research into the faulty part conducted by Hood will likely also play a role in that lawsuit.

Rapid Cash Sued in Class Action

March 15, 2014 | Peter S. Lubin and Patrick Austermuehle

Class actions have a number of hurdles to clear before they can attain certification. Those hurdles frequently include the arbitration agreements which companies have grown increasingly fond of including in their contracts. An arbitration agreement is a provision in a contract which states that any dispute between the parties must be settled in arbitration. This usually works in favor of the company as the arbitrator is usually chosen and paid for by the company, and is therefore frequently biased in favor of the company. It also prohibits class actions, which prevents many individuals with small claims from seeking redress, as the cost of arbitration is likely to exceed their claim.

Defendants in class action lawsuits frequently try to force arbitration. Rapid Cash, a loan company, is currently facing a class action lawsuit which alleges that borrowers were subjected to default judgments by the company. Attorney J. Randall Jones is representing the plaintiffs in the class and argues that Rapid Cash waived its ability to require arbitration, and as a result, the case belongs in the district court. Rapid Cash denies that it ever waived that ability and continues to argue that the case should be heard in arbitration.

If Jones succeeds in keeping the case in the district court and obtaining class certification, the class could include almost 16,000 borrowers who were allegedly subjected to default judgment. The class alleges that Rapid Cash failed to provide the required legal notice before subjecting them to default judgment.

One of the defendants included in the lawsuit is On Scene Mediations, a company that Rapid Cash uses to enter default judgments against borrowers. Dan Polsenberg, an attorney representing Rapid Cash, says that the loan company is also unhappy with the conduct of On Scene Mediations and is willing to work with borrowers who claimed nonservice.
However, Rapid Cash claims that borrowers who were wrongfully subjected to default judgments have another legal remedy, which is to go to Justice Court to ask to have the default judgments set aside.

The company also objects to the size of the class, arguing that the parameters for members to become a part of the class are too broad. In addition to 460 borrowers who allegedly never received a notice, the class also includes 7,000 borrowers who were sent letters but never responded, and 8,000 who were sent letters which were returned as undeliverable.
Barbara Buckley, the executive director of the Legal Aid Center, said in a statement why it is so important for plaintiffs to be able to file claims as a class action. “When there are cases of just widespread fraud, it is virtually impossible to have 16,000 separate actions. And having the ability to have one judge decide for one case what the proper recourse is; in some cases it’s the only way for consumers to get relief.”

Jones said that, if the class does not get certified, only a small fraction of the plaintiffs will be able to get any relief. He pointed out that “These people are the most vulnerable in our society in terms of economic fraud and taking advantage of people in the financial arena. … You’re dealing with a constituency that doesn’t have a whole lot of options. So you need this process or else these people really won’t get any kind of remedy.”