U.S. Fifth Circuit Allows Removal under CAFA when Plaintiffs Seek Consolidation of New Action into Pre-Existing Multi-Plaintiff Case

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In 2002, over 600 plaintiffs filed a petition in Lester v. Exxon, alleging property damage and/or personal injuries arising from naturally occurring radioactive material (NORM). The State Court utilized a “flighting” system to segregate the Lester plaintiffs’ claims into smaller trials or “flights.”  There is no preclusive effect from one flight to the next, and, thus far, no flight has …

U.S. Third Circuit Refuses to Enforce Approved Class Settlement against the State of Louisiana as an Indirect Purchaser

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In the underlying lawsuit, private indirect purchasers moved for final approval of a class settlement, after the District Court had already certified the class. The State of Louisiana, an indirect Flonase purchaser, qualified as a potential class member but did not receive the approved Class Notice. Instead, it only received CAFA Notice.  In the second ancillary suit, the settling defendant, …

U.S. Fifth Circuit Holds, Based on Language in Arbitration Provision at Issue, that Action which Included Claims for Injunctive Relief under Sherman Antitrust Act Were Not Subject to Arbitration

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Sued by a competitor for antitrust violations, the defendants sought to enforce an arbitration agreement. The magistrate judge granted the motion to compel arbitration, holding that the threshhold question of arbitrability belonged to an arbitrator. The district court reversed, holding it had the authority to rule on the question of arbitrability, and that the claims at issue were not arbitrable. …

Southern District of New York Certifies (b)(1) Class Claims under ERISA for Mismanagement of 401(k) Plan

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“Defendants object to class certification under Rule 23(b)(1) as improper in the wake of the Supreme Court’s decisions in LaRue and Wal-Mart. Although courts are split over whether Rule 23(b)(1)(B) remains an appropriate class vehicle for fiduciary-breach claims under ERISA, a majority have held that it is…. “Defendants argue that, because the Supreme Court in LaRue held that §1132(a)(2) allows …

U.S. Eleventh Circuit Rejects Challenge to Adequacy Based on Pursuit of Only Statutory Damages in FDCPA Case

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In FDCPA case, the district court held that the Named Plaintiff was an inadequate class representative because he sought only statutory damages, while other members of the class might have suffered actual damages. The U.S. Eleventh Circuit Court of Appeal reversed: “As an initial matter, the district court’s stated reason for finding Dickens inadequate — that he sought only statutory …

U.S. Fifth Circuit Affirms Class of Inmates for Injunctive Relief over Temperatures in Holding Areas

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Defendants’ overarching objection to the district court’s certification focuses on the common contention that “excessive heat constitutes a condition of confinement that poses a substantial risk of serious harm to the health of inmates.”  Defendants do not contest that putative class members are all exposed to essentially the same temperatures. Defendants also do not contest that Pack Unit temperatures, particularly …

U.S. Fifth Circuit Dismisses Appeal for Lack of Jurisdiction Where Appellant Fails to Timely Object in the District Court

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“The class members get nothing. The attorneys get their fees. A class member objects, but untimely. Consequently, we lack appellate jurisdiction.” Explaining more fully: “The Supreme Court has often underscored that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment. But then the Devlin Court came along and concluded that it should carve …

U.S. Supreme Court Rejects Application of American Pipe Tolling to a Statute of Repose

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In 2007 and 2008, Lehman Brothers raised capital through several public securities offerings. In 2008, a putative class action asserted claims under Section 11 of the Securities Act, alleging that the registration statements included material misstatements or omissions. Because the complaint was filed on behalf of all persons who purchased the identified securities, petitioner was a member of the putative class. In …

U.S. Fifth Circuit Affirms Class-Wide Damages Model, Reverses Certification of Fraud Claims, and Remands for Further Consideration of Pot. Waiver Issue and Its Pot. Effect on the Question of Adequacy

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In a case against Progessive for breach of contract, statutory insurance law, and fraud claims relating to the adjustment of total-loss claims, the U.S. Fifth Circuit Court of Appeals rejected Progressive’s challenge under Comcast: “Plaintiffs’ liability theory is that Defendant unlawfully used WorkCenter Total Loss (WCTL) to calculate the base value of total loss vehicles. Plaintiffs claim that using WCTL, …

U.S. Seventh Circuit Dismisses Class Action for Lack of Article III Standing against Manufacturers of Eye Drops Approved by the FDA

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A district court judge sitting in the Southern District of Illinois certified eight classes the manufacturers of eye drops that are allegedly unnecessarily large, in violation of the Illinois Consumer Fraud Act and the Missouri Merchandising Practices Act, because each eye drop exceeds 16 microliters, while the optimal size of an eye drop for treatment of glaucoma is 16 microliters, …