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The House of Representatives has reintroduced the Fairness in Class Action Litigation Act (FICALA), and it’s more substantial than the 2015 version.  The previous version, you may recall, attempted to reinforce the typicality requirement to minimize the number of “no injury” class actions brought.  It cleared the House, but died in the Senate.  It appears that House Republicans sense an opportunity with the new administration to enact more sweeping class reforms.
I testified in support of the 2015 Act, and having read the new bill, I like it even more. I think it lives up to its … Continue Reading

In Labou v. Cellco Partnership, No. 2:13-cv-00844-MCE-EFB, 2014 U.S. Dist. LEXIS 26974 (E.D. Cal. Mar. 3, 2014), the named plaintiff sued cell phone company Verizon. She alleged that Verizon had used an automatic dialer to call her cell phone in an attempt to get her former brother-in-law to pay his cell phone bill, a practice that allegedly violated the Telephone Consumer Protection Act (TCPA). And she sought to certify a class of everyone else Verizon had contacted with an automatic dialer.

There was a twist: the TCPA does not prohibit collection calls so long as the recipient is not … Continue Reading

Rule 68 offers of judgment have been controversial in the class action context. Defendants will often use them in an attempt to moot the class claims of the named plaintiff: offering full relief first, and then moving to dismiss the case on jurisdictional grounds should the plaintiff decline the offer.

But there is a second, also controversial, use of the offer of judgment, where the defendant makes the offer as a means of limiting litigation costs. Under Rule 68(d), if the defendant makes an offer for a definite amount, the plaintiff rejects the offer, and then recovers less than … Continue Reading

 It’s a tale as old as the Telephone Consumer Protection Act ("TCPA"): defendant Janssen Pharmaceuticals sent out a fax reporting on the reclassification of its drug Levaquin for insurance purposes. The plaintiff sued it for violating the TCPA, claiming the fax was an advertisement; Janssen responded that the content of the fax was informational. It won a motion to dismiss, but the court allowed the plaintiff to file an amended complaint.

At that point, Janssen moved the court to bifurcate discovery. But where the typical motion to bifurcate asks for merits discovery after class-related discovery, Janssen asked for Continue Reading

University of Idaho law professor Wendy Gerwick Couture has published an interesting working paper analyzing a data set of dismissal opinions from securities fraud class actions: Around the World of Securities Fraud in 80 Motions to Dismiss. The paper is a quick read, distilling her data into eight major observations.

Among her most interesting findings:

Scienter is the largest problem for plaintiffs. Most defendants have had an intuition that plaintiffs have difficulty meeting the scienter requirement of the PSLRA.  Professor Couture’s data supports that intuition.

Failure to plead a strong inference of scienter, as required by the Private

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Robert Lisk of Alabama was building a fence. So he bought some fence lumber from Lumber One. Three years later (he alleged) he discovered that his lumber was rotting prematurely. He filed a class action against Lumber One, asserting, among other claims, that it had violated Alabama’s Deceptive Trade Practices Act (the ADTPA).

Lumber One moved to dismiss the ADTPA claim, arguing that the statute specifically prohibited class actions. A court in the Northern District of Alabama agreed, and dismissed the case in Lisk v. Lumber One Wood Preserving, LLC, No. 3:13-cv–01402-AKK, 2014 U.S. Dist. LEXIS 1784 (N.D. Ala. … Continue Reading

 Ellen Delgado sued collection agency Collecto, Inc., accusing it of violating the Fair Debt Collection Practices Act by sending her an improper debt collection letter. After she filed suit (but before she moved for class certification), Collecto made an offer of judgment for Ms. Delgado’s full damages, as well as attorneys’ fees and costs. It then, some minor procedural maneuvering aside, moved to dismiss the case as moot.

These facts should sound familiar to readers of this blog; they’re part of the ongoing battle over whether a defendant can moot a named plaintiff’s claims in a class action by offering Continue Reading

 In the several years since the Supreme Court decided Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, scholars and litigators have argued back and forth about the appropriate pleading standard for various kinds of lawsuits. One of the most vociferous parts of that debate is over whether class actions should be subject to increased pleading standards

Former federal trial attorney Matthew J.B. Lawrence (now a fellow at Harvard’s Petrie-Flom Center) has recently published an article, Courts Should Apply a Relatively More Stringent Pleading Threshold to Class Actions, 81 U. Cin. L. Rev. 1225 (2013), that makes … Continue Reading

 In Thornton v. DaVita HealthCare Partners., Inc., No. 13-cv-00573-RBJ-KMT, 2013 U.S. Dist. LEXIS 145458 (D. Colo. Oct. 8, 2013), the plaintiffs filed a class action alleging various causes of action in the wake of a recall of certain brands of dialysis equipment. The case grew rapidly, and eventually involved several consolidated complaints.

The defendants filed a comprehensive motion to dismiss. With it, they filed a motion to stay the litigation until the court had decided the dispositive motion. Motions to stay do not always get traction with courts; they’re often viewed as merely a delaying tactic. This time, however, … Continue Reading

The Madoff Ponzi scheme had far-reaching impact. How far? At least as far as Ireland and Luxembourg, each of which produced a number of plaintiffs in Trezziova v. Kohn (2d Cir. Sep. 17, 2013). In Trezziova, investors in a number of funds (the Thema International Fund PLC [], the Herald LUX Fund, and the Primeo Select Fund and Primeo Executive Funds) sued those funds (and their managing banks and investment firms) for placing money with the notorious Bernie Madoff.

While many of their countrymen were filing suit (and dealing with liquidators) in Ireland and Luxembourg, … Continue Reading