The value of the claim at issue, not the value of the policy limit, is considered for purposes of determining the amount in controversy in an insurance coverage class action. That, the Middle District of Florida found, is the law in the Eleventh Circuit. The plaintiff in Faust v. Maxum Casualty Insurance Company filed in state court a class action against his insurer on behalf of persons covered for Medical Payments coverage under a Florida property, casualty, surety, ... Keep Reading »
Archives for April 2015
Two Out of Three Ain’t Bad: Kansas District Court Certifies Settlement Class and Grants Preliminary Approval but Rejects Notice by Publication
A boy fell through the vinyl guardrail his father installed on the second story deck of their home. After settling his son's personal injury claims, the father sued Home Depot and the guardrail manufacturer on behalf of himself and other Kansas purchasers for breach of warranty and violations of the Kansas Consumer Protection Act alleging that the guardrail brackets were defective. The district court certified a class, and the Tenth Circuit granted the parties' Rule ... Keep Reading »
Third Circuit to Plaintiffs’ Bar: Expert Testimony Necessary for Certification Must Satisfy Daubert
Plaintiff purchasers of traditional blood reagents, products that test the compatibility of donor blood with recipients, brought putative class actions claiming that two defendant companies conspired to fix prices in violation of antitrust law. Numerous lawsuits were consolidated in the Eastern District of Pennsylvania (and one of the defendants subsequently settled with the plaintiffs). The district court found that plaintiffs had satisfied the requirements of ... Keep Reading »
Regulatory Settlement Proves Major Obstacle for Certification of Minor Class of Google In-App Purchases
Google sells apps on its Play Store that allow users to make in-app purchases, typically the buying of “currency” for use in app-based games. This putative class action alleged that the games were aimed at minor children and allowed them to make in-app purchases unobstructed for a period of 30 minutes after a password was entered. As a result, minors were able to make one click, large-dollar-amount purchases without parental authorization. Prior to the filing of the ... Keep Reading »
Data Breach Class Actions: Don’t Overlook Standing Defense Just Because Plaintiff Alleges Identity Theft
A New Jersey federal district court recently dismissed the putative class action claims of four plaintiffs against a health care defendant following the theft of two password-protected laptops allegedly containing personal information of more than 839,000 individuals. Three of the plaintiffs did not allege that they suffered identity theft, and thus failed to allege an injury in fact as required for standing under Article III of the United States Constitution. The fourth ... Keep Reading »
Ninth Circuit Holds Defendant Can Remove Within 30-Days After CAFA Grounds Are Ascertained, Even Where Complaint Provided Basis For Federal Question Removal
A Ninth Circuit panel has held that a defendant may remove a case to federal court within 30 days after the CAFA ground for removal can first be ascertained, even where plaintiff's complaint, filed years earlier, provided a basis for removal based on federal question jurisdiction. On April 3, 2012, plaintiff filed her initial complaint against Nationstar in state court, alleging various causes of action, including a federal cause of action under the Fair Debt ... Keep Reading »
Ninth Circuit Holds That State Court’s Class Certification Order Creates New Occasion for CAFA Removal
The Ninth Circuit held that a state court's certification order, under which CAFA's amount in controversy would be met, created a new basis for defendant to remove the case to federal court. The plaintiff had filed a putative class action against Dollar Tree in California Superior Court alleging violations of the California Labor Code and California Business and Professions Code, Section 17200, based on Dollar Tree's purported failure to provide required paid rest breaks ... Keep Reading »
Court Declines to Certify Class Alleging Off-Label Marketing of Cancer Drug
Third party payors ("TPPs") responsible for paying the costs of prescriptions for their beneficiaries sued Cephalon, Inc., alleging that it engaged in unlawful off-label marketing of Actiq, a drug approved to manage breakthrough cancer pain in certain patients. Plaintiffs argued that Cephalon's conduct caused plaintiffs to make excessive off-label prescription payments for Actiq to treat conditions not approved by the FDA and for whom less expensive pain management drugs ... Keep Reading »
Predominance Lacking in Telephone Recording Case Involving Caller Consent
In a class action brought under a California penal statute that prohibits the intentional recording of telephone calls without the consent of all parties on the call, a California district court denied class certification on the grounds that common questions of fact do not predominate among the putative class members. Defendant, a construction materials supplier, received orders from its customers through a dedicated phone line. Prior to 2009, defendant utilized a ... Keep Reading »
Town Gets Schooled on Class Definition in PCB Contamination Case
The Town of Lexington, Massachusetts filed a putative class action in 2012 on behalf of itself and alleged similarly situated Massachusetts school districts that have one or more buildings with airborne polychlorinated-biphenyl (PCB) levels above the public health levels established by the EPA. From the outset of the litigation, defendants argued this proposed class was not ascertainable, as implicitly required by Rule 23, because it was impossible to identify the class ... Keep Reading »