The Ninth Circuit holds that failure to comply with the time limitations imposed by 29 C.F.R. 2560.503-1(h) does not require de novo review; technical violations of the Act do not alter the standard of review unless they result in substantive harm.

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In 2002, (opinion withdrawn and superceded in 2003), the Ninth Circuit, in Jebian v. Hewlett-Packard, held that the plan administrator’s failure to decide an appeal within 120 days justified de novo review – where the Plan provides for the 120-day period found in the regulations. On May 31, 2005, the Court refused to apply the holding where the participant or beneficiary relies …

Eighth Circuit reverses Silzone Heart Valve certification.

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The Minnesota District Court certified a medical monitoring class under (b)(2) and a national class of consumer claims under the Minnesota Consumer Protection Statutes under (b)(3). The Eighth Circuit found that the medical monitoring claims lacked coherence and could not be certified. With respect to the consumer claims, the Court did not preclude the possibility of certification, but reversed and …

Third Circuit draws line on “piggy-backing”.

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The U.S. Third Circuit held that American Pipe would toll the filing of successive class actions if the deficiency in the original class is based on deficiencies in the class representative, as opposed to a finding that the claims were not suitable for class treatment. Yang v. Odom, 392 F.3d 97 (3d Cir. 2004), cert. denied, 125 S.Ct. 2294 (2005).

Second Circuit rejects (b)(1) certification under “limited punishment” theory absent a fund with a “definitely ascertained limit” as required under Ortiz.

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Judge Weinstein previously certified a mandatory no-opt-out class under Rule 23(b)(1) for all smokers with respect to claims for punitive damages. The certification was based on a “limited punishment” theory, under which “the limited fund involved would be the constitutional cap on punitive damages, set forth in BMW v. Gore and related cases.” While the Second Circuit acknowledged the possibility of …

JAMS clarifies its policy when companies seek to preclude class actions through arbitration.

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Last fall, JAMS declared that it was inappropriate for a corporation to bar its customers or employees from being part of a class action in an arbitration clause. JAMS later withdrew that policy, (after being pressured by angry corporations). Now JAMS has clarified its current policy: “Until either the United States Supreme Court decides the issues or lawmakers create a …

Eleventh Circuit largely rejects Castano in affirming nationwide RICO class against major HMOs by physicians.

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In affirming certification of RICO claims of all medical doctors providing services to any person insured by one of the major HMOs from 1990 thru the date of certification, the U.S. Eleventh Circuit Court of Appeals rejected the Fifth Circuit’s statement in Castano that “a fraud class action cannot be certified when individual reliance will be an issue”; rather, due to …

Magistrate recommends default judgment against PwC for spoliation.

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The company, according to the court, “failed at the start of discovery to check thoroughly its local servers and its archives for relevant documents, failed to compare the various versions of relevant documents on those databases, failed to produce documents as they were kept in the ordinary course of business, and failed to reproduce thoroughly and accurately all documents and …

E-Mail notification of arbitration requirement to employees inadequate, district court rules.

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General Dynamics attempted to invoke a binding arbitration policy in defense to a claim under the ADA. The court found that sending an e-mail notification of the policy to employees was insufficient, because it is impossible to know whether the employee actually read the communication. The better practice, suggested the court, would be to require employees to acknowledge that they …

Fifth Circuit rules that expert testimony is not required in defective design case against forklift manufacturer.

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The plaintiff was injured while operating a Crown “stand-up” forklift when, in an effort to avoid a collision with another forklift, she applied her brakes, causing her left foot to swing out of the unenclosed operator compartment, where it was crushed between the two machines as they collided. She brought suit against Crown under the LPLA, claiming that the lack …