The Jacksonville Business Journal Reports: “Overtime lawsuits thrive in Florida’s recession”
The article states:
Like unemployment, home foreclosures and bankruptcies, the number of lawsuits brought by employees alleging unpaid wages is also on the rise.
USA Today Reports:
Permanent mortgage modifications, which lower mortgage payments have been given to only about a third of the 1.3 million borrowers.
The class-action lawsuits allege that the trial payment plans are contracts that obligateBank of America and other servicers to abide by them and to give permanent loan modifications to homeowners who otherwise can’t pay their mortgages and would face foreclosure and loss of their homes.
Our Illinois class action attorneys recently noted a Seventh Circuit decision ending a class-action case in the difficult realm of securities fraud. In Re Guidant Corporation, No. 08-2429 (7th Cir. Oct. 21, 2009), is a securities class action stemming from allegedly misleading statements Guidant Corp. made about its implanted defibrillators. A design flaw with certain lines of defibrillators was discovered in February of 2002, and by April, Guidant had corrected the problem in all of the new devices it made. However, the problem remained in machines already made, and Guidant failed to recall them or warn the public. All in all, Guidant knew in 2002 of at least 25 reports of short-circuiting from the older defibrillators. More reports emerged later.
Two years after this redesign, Guidant entered into merger talks with Johnson & Johnson. As part of these negotiations, it issued a press release expressing confidence about its growth prospects in the implanted defibrillator market. In their claim, plaintiffs said this was false and misleading because Guidant knew it still had liability for the Ventak defibrillators. Subsequent press releases on the merger also omitted this information, as were three merger-related forms Guidant filed with the SEC. However, in March of 2005, a young man died after his Guidant defibrillator short-circuited. Guidant issued several other SEC filings and press releases without disclosing this before it finally sent a letter to doctors in May of 2005 disclosing reported problems, an act prompted by an article about to be published in the New York Times.
The FDA recalled the defibrillators the next month, and Guidant’s stock dropped immediately. It dropped further when Johnson & Johnson announced that it was reconsidering the merger. All in all, the stock fluctuated between $63 a share and $80 a share until Guidant was purchased by Boston Scientific. The instant case is a consolidated class action filed against Guidant and eleven officers and directors as a result of these drops. In addition to alleging that all defendants made false and misleading statements about the company and omitted material information from their statements, it alleged that the individual defendants used insider knowledge and the approval of the Johnson & Johnson merger to sell stock during the period at issue.
Over the course of pre-trial motions, the plaintiffs attempted to amend their complaint at least three times, twice because of new information revealed in related product liability cases. At some point, Guidant moved to dismiss the complaint for failure to state a claim. The claims were brought under the Securities Exchange Act, which requires heightened pleading standards for plaintiffs alleging securities fraud. Specifically, the court found that the plaintiffs’ pleadings were not particular enough and failed to include facts showing that defendants knowingly and with malice misled investors. It dismissed the case with prejudice. It also declined to reconsider based on new evidence from a products liability case, and declined a motion to amend their complaint based on the same evidence. The plaintiffs appealed all three decisions.
In its analysis, the Seventh started by noting that plaintiffs had ample time to make changes to their complaint. In addition to the consolidated complaint from individual claims, it allowed an amendment at the start to change the class period. Plaintiffs notified the court twice of new evidence from other cases, but failed to amend their complaint with that evidence. The Seventh found that this was ample time for plaintiffs to amend their complaint to meet the admittedly strict standards provided for securities cases by the Private Securities Litigation Reform Act.
It then moved to the trial court’s denial of reconsideration of the dismissal. The plaintiffs claimed that it should have been reconsidered because they had new evidence from product liability cases, a standard ground for reconsideration. They acknowledged that those facts were older, but said the trial court stymied them by refusing to lift a stay of discovery. The Seventh found this unpersuasive, saying the trial court could have ruled either way without abusing its discretion. The trial court must have assessed the new evidence, it wrote, and decided that a new amended complaint would still have lacked the necessary specific facts and evidence of scienter. And the plaintiffs could have entered the new evidence into the record earlier. Thus, the district court did not abuse its discretion by denying reconsideration. For the same reasons, it was also not an abuse of discretion to deny the motion to amend, the Seventh said. Thus, all of the district court’s rulings were affirmed.
NPR reports:
Can’t put your BlackBerry down? Your boss may come to dread that if you’re working while you’re off the clock. A police sergeant in Chicago is suing the city. He says he’s due plenty of overtime back pay because he logged in on his BlackBerry to continue working even though his shift was over.
Publich Justice reports on its website:
The consumer and civil rights communities are closely watching AT&T Mobility v. Concepcion, a case that will be argued in the Supreme Court this November. Depending on how broadly the Court reads the question presented in Concepcion, the case could decide the fate of consumer and employee class actions for years to come.
Public Justice’s Senior Attorney Paul Bland, Staff Attorney Claire Prestel and Brayton-Baron Fellow Melanie Hirsch explain what is at stake in ATT Mobility v. Concepcion, a case with profound consumer and civil rights implications. The U.S. Supreme Court is scheduled to hear the case this fall. Click here to see what is at stake.
The Seventh U.S. Circuit Court of Appeals made a ruling this year that will be important to the work of our Chicago consumer class action attorneys. In Cunningham Charter Corp. v. Learjet Inc., 592 F.3d 805 (7th Cir. 2010), the court decided that federal courts retain jurisdiction under the Class Action Fairness Act, even when they decline to certify any class in the case at bar.
Cunningham bought one or more jets from Learjet and was dissatisfied. It filed a proposed class action against Learjet in Illinois state court for breach of warranty and product liability. Learjet removed it to federal court under CAFA, and Cunningham moved for class certification. That motion was denied, and without a class, the district judge thought it was appropriate to move the case back to state court. Learjet then petitioned for leave to appeal the remand order, and the Seventh agreed to hear it to resolve the issue of whether denial of class certification eliminates subject matter jurisdiction under CAFA.
The Seventh based its opinion almost entirely on the language of the Act. Crucially, the law says it applies to “any class action [within the Act’s scope] before or after the entry of a class certification order.” The majority wrote that this language was probably intended to give defendants the option of removing the case either before or after class certification. But they seized on the use of the indefinite article — a class certification order rather than the class certification order. This word choice shows that the law is not limited to cases in which a class certification order is eventually issued, the court wrote. In addition the law’s definition of a class action is any civil action filed under rules authorizing a class action — not as an action with a certified class. “As actually worded, (d)(8)… implies at most an expectation that a class will or at least may be certified eventually,” the court wrote.
Another part of the Act says a class certification order is “an order issued by a court approving the treatment of some or all aspects of a civil action as a class action.” This could imply that a class certification order is required for the claim to be a class action — if read in isolation. But again, the definition of a class action in this Act is a claim that is filed as a class action, not necessarily certified as one, the majority wrote. The court interpreted this language to mean that a class-action suit cannot be maintained as a class-action suit without the eventual certification of a class.
The Seventh then reviewed previous federal appellate decisions in agreement with this interpretation, including Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 n. 12 (11th Cir. 2009) as well as its own previous assumption in Bullard v. Burlington Northern Santa Fe Ry., 535 F.3d 759, 762 (7th Cir. 2008). If a state has different standards for class certification than Rule 23, the federal standard, the case could be denied class certification at the federal level, remanded, then continue as a class action at the state level. That would be contrary to the purpose of the Act, the court said. Finally, the Seventh cited the general principle that proper diversity jurisdiction is not revoked by changes that take place after the suit is filed. If diversity jurisdiction is proper before a class is certified, the majority wrote, it’s proper after a class is not certified.
Lubin Austermuehle represents businesses caught on either side of a dispute about online or offline defamation of a business or its products or services. Our Chicago business attorneys have assisted our clients in removing damaging and false reviews from internet review sites run by their competitors. Self-publishing on the Internet, and sites like Yelp, make it easy for individuals to publish false information about a competitor or a business they don’t happen to like. Online business libel laws balance the need to protect small businesses from false and damaging information with the First Amendment right to free speech. Our Illinois trade libel and trade disparagment attorneys represent both plaintiffs and defendants in claims regarding false and misleading claims; deceptive online publishing; misuse of a trademark, logo or other identifying feature. You can contact one of our Nationwide Class Action attorneys at 630-333-0333 for a free consultation or contact one of our Chicago class action attorneys us online.
Our Chicago Class Action Lawyers Have Represented Auto-Buyers and buyers of other defective products in State-Wide and National Class Actions in courts in different parts of the United States. You can call one of our Nationwide class action lawyers for a free consultation at 630-333-0333 or contact us online.
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