Articles Posted in Class Action

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On April 21, 2004, and March 22, 2005, Defendants sent unsolicited faxes to Dr. Weitzner’s office. Weitzner filed a putative class action in Pennsylvania state court under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(C), including at least one fax sent to Weitzner. The proposed class included all individuals “who received an unsolicited facsimile advertisement from defendants between January 2, 2001[,] and the date of the resolution of this lawsuit.” In June 2008, the court denied class certification. The case continues as Weitzner's individual action. Defendants stopped sending unsolicited faxes in April 2005. In 2011, Weitzner and his professional corporation (Plaintiffs) brought individual claims based on the same faxes, plus class claims similar to those alleged in state court. The court dismissed, concluding that the four-year federal default statute of limitations, 28 U.S.C. 1658, applicable. The Third Circuit affirmed, rejecting a claim under the Supreme Court’s “American Pipe” holding that the timely filing of a class action tolls the applicable statute of limitations for putative class members until the propriety of maintaining the class is determined. American Pipe permits putative class members to file only individual claims after a denial of class certification and does not toll the limitations period for named plaintiffs like Weitzner. Any judgment in favor of Weitzner P.C. would benefit only Dr. Weitzner. Applying tolling to P.C.’s claims would effectively allow Weitzner to pursue his claims for a second time outside the limitations period. View "Weitzner v. Sanofi Pasteur, Inc." on Justia Law

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Favero’s car struck Alpizar-Fallas's car, causing Alpizar-Fallas serious injuries. Both drivers were insured by Progressive. The next day, Barbosa, a Progressive claims adjuster, went to Alpizar-Fallas's home to inspect her car and have her sign “paperwork” that would “expedite the processing of the property damage claim.” Alpizar-Fallas alleges that he stated that her signature was “necessary” for Progressive to advance her payment. Alpizar-Fallas signed the document. The document was actually a broadly written comprehensive general release of all claims. Barbosa failed to advise Alpizar-Fallas to seek legal counsel and did not communicate with her in Spanish, her native language. Alpizar-Fallas sought damages for the personal injuries she sustained in the accident and amended her complaint to include a class action claim against Progressive and Barbosa under the New Jersey Unfair Claims Settlement Practices Regulations (UCSPR) and the Consumer Fraud Act (CFA). The district court dismissed Alpizar-Fallas’s class action claim to the extent it alleged a violation of the UCSPR because those regulations do not provide a private right of action, then dismissed Alpizar-Fallas’s CFA claim, as a claim for denial of insurance benefits, and construing the CFA to only apply to the “sale or marketing” of insurance policies. The Third Circuit vacated, finding that Alpizar-Fallas’s complaint alleged deception that would be covered by the CFA. View "Alpizar-Fallas v. Favero" on Justia Law

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Disability rights advocates brought a proposed class action suit against Steak ’n Shake under the Americans with Disabilities Act (ADA), 42 U.S.C 12101, alleging they have personally experienced difficulty ambulating in their wheelchairs through two sloped parking facilities. They sought to sue on behalf of all physically disabled individuals who may have experienced similar difficulties at Steak ’n Shake restaurants throughout the country. The district court certified the proposed class. The Third Circuit reversed and remanded, first holding that the plaintiffs have Article III standing to bring their claims in federal court. Although a mere procedural violation of the ADA does not qualify as an injury in fact under Article III, plaintiffs allege to have personally experienced concrete injuries as a result of ADA violations on at least two occasions. Plaintiffs sufficiently alleged that these injuries were caused by unlawful corporate policies that can be redressed with injunctive relief. However, the “extraordinarily broad class” certified by the district court violates the Rule 23(a)(1) requirement that the proposed class be “so numerous that joinder of all members is impracticable” and Rule 23(a)(2)’s requirement that plaintiffs demonstrate that “there are questions of law or fact common to the class.” View "Mielo v. Steak N Shake Operations Inc." on Justia Law

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Walsh, a New Jersey citizen, filed a putative class action in New Jersey Superior Court, alleging that class members purchased home security equipment and monitoring service from defendants and signed contracts that defendants prepared which contained illegal provisions relating to fees due on cancellation. Walsh cited New Jersey consumer protection laws. Defenders, an Indiana corporation, removed the case invoking Class Action Fairness Act diversity jurisdiction, 28 U.S.C. 1332(d)(2), (d)(2)(A), (d)(5)(B). Walsh sought remand, arguing that ADT’s presence in the case triggered CAFA’s local controversy exception under which a district court must decline jurisdiction if the controversy is uniquely connected to the state in which the plaintiff originally filed: ADT is a citizen of New Jersey; ADT’s conduct forms a significant basis for the claims asserted; and Walsh sought significant relief from ADT. The court agreed that ADT, though a Delaware LLC, had New Jersey citizenship, but denied the motion, stating that ADT “appears to have no actual interest in the outcome” because it had transferred its liabilities. On reconsideration, the court reversed, citing evidence that ADT entered into the subject contracts with 35.3% of the putative class, and created the challenged standardized provisions. The Third Circuit affirmed remand of the case. ADT has an interest in the litigation; the court correctly took into account its citizenship. Because of ADT’s role concerning the allegedly illegal provisions, and because over a third of the class members entered into contracts directly with ADT, ADT’s conduct forms a significant basis for the claims. View "Walsh v. Defenders, Inc." on Justia Law

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Plaintiffs sued on behalf of a proposed nationwide class of individuals who “owned, own, or acquired” structures on which Owens Corning's "Oakridge" fiberglass asphalt roofing shingles roofing shingles are or have been installed since 1986, claiming that the shingles were “plagued by design flaws that result in cracking, curling and degranulation” and “will eventually fail, causing property damage, and costing consumers substantial removal and replacement costs.” The district court rejected the suit on summary judgment, finding that the claims had been discharged in bankruptcy. The Third Circuit partially reversed. After the case was remanded, others filed similar suits in district courts in other states, which were transferred for consolidation. Plaintiffs proposed two classes: property owners from four states, asserting various state-law claims, and a nationwide class seeking a ruling regarding the legal standard governing whether Owens Corning can use a bankruptcy discharge defense. The Third Circuit affirmed the denial of class certification. The Nationwide Class cannot satisfy Rule 23(a)’s commonality requirement because the only common question it poses can be answered only by an advisory opinion, which is forbidden by Article III. The Four-State Class cannot satisfy Rule 23(b)(3)’s predominance requirement. Plaintiffs did not allege a defect common to the class that might be proved by classwide evidence. View "Gonzalez v. Owens Corning" on Justia Law

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Plaintiffs sued on behalf of a proposed nationwide class of individuals who “owned, own, or acquired” structures on which Owens Corning's "Oakridge" fiberglass asphalt roofing shingles roofing shingles are or have been installed since 1986, claiming that the shingles were “plagued by design flaws that result in cracking, curling and degranulation” and “will eventually fail, causing property damage, and costing consumers substantial removal and replacement costs.” The district court rejected the suit on summary judgment, finding that the claims had been discharged in bankruptcy. The Third Circuit partially reversed. After the case was remanded, others filed similar suits in district courts in other states, which were transferred for consolidation. Plaintiffs proposed two classes: property owners from four states, asserting various state-law claims, and a nationwide class seeking a ruling regarding the legal standard governing whether Owens Corning can use a bankruptcy discharge defense. The Third Circuit affirmed the denial of class certification. The Nationwide Class cannot satisfy Rule 23(a)’s commonality requirement because the only common question it poses can be answered only by an advisory opinion, which is forbidden by Article III. The Four-State Class cannot satisfy Rule 23(b)(3)’s predominance requirement. Plaintiffs did not allege a defect common to the class that might be proved by classwide evidence. View "Gonzalez v. Owens Corning" on Justia Law

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Panico, a New Jersey resident, incurred substantial debt on an MBNA credit card, which qualifie as “debt” under the Fair Debt Collection Practices Act, 15 U.S.C. 1692a(5). MBNA assigned the rights to the debt to PRA, a debt collector. PRA’s collection efforts failed. In 2014, more than three but fewer than six years after the cause of action accrued, PRA sued. New Jersey’s statute of limitations barred collection ofsuch debts after six years; Delaware’s statute proscribed collection of such debts after three years. The credit agreement provided for application of “the laws of ... Delaware, without regard to its conflict of laws principles, and by any applicable federal laws.” PRA agreed to a stipulated dismissal. In 2015, Panico filed a putative class action under the FDCPA, arguing that PRA had sought to collect on a time-barred debt. The district court granted PRA summary judgment, finding that a Delaware tolling statute prevented the Delaware statute of limitations from running as to a party residing outside that state during the credit relationship, default, collections attempts, and ensuing litigation. The Third Circuit reversed. Delaware’s tolling statute has been interpreted as abrogating its statute of limitations only as to defendants not otherwise subject to service of process; it was not intended to export the state’s tolling statute into out-of-state forums and to substantially limit the application of the Delaware statute of limitations. View "Panico v. Portfolio Recovery Associates, LLC" on Justia Law

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Private indirect purchasers of prescription Flonase filed a class action, alleging that GSK had filed sham petitions with the FDA to delay the introduction of generic Flonase and force them to pay more for Flonase than they would have if the generic version were available. Those plaintiffs moved for final approval of settlement after the court certified the class and approved the notice to settlement class members. Louisiana, an indirect Flonase purchaser, qualified as a potential class member but did not receive the notice; it only received a Class Action Fairness Act (CAFA) Notice, for “the appropriate State official of each State in which a class member resides,” 28 U.S.C. 1715(b) The settlement “permanently enjoined” all members of the settlement class, including Louisiana, from bringing released claims against GSK, even in state court. In an ancillary suit, GSK moved to enforce the settlement against the Louisiana Attorney General. The Third Circuit affirmed denial of the request, finding that under the Eleventh Amendment “a State retains the autonomy to choose ‘not merely whether it may be sued, but where it may be sued.'" Although some of Louisiana’s claims fall within the settlement, the state did not waive its sovereign immunity. Receipt of the CAFA Notice was insufficient to unequivocally demonstrate that the state was aware that it was a class member and voluntarily chose to have its claims resolved. View "In re: Flonase Antitrust Litigation" on Justia Law

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In 2014, Super Bowl XLVIII was held at New Jersey's MetLife Stadium. Finkelman alleges that the NFL has a policy of withholding 99% of Super Bowl tickets from the general public; 75% of the withheld tickets are split among NFL teams and 25% of tickets are for companies, broadcast networks, media sponsors, the host committee, and other “league insiders.” The 1% of tickets for public purchase are sold through a lottery system. A person has to enter by the deadline, be selected as a winner, and choose to actually purchase a ticket. Finkelman purchased tickets on the secondary market for $2,000 per ticket, although these tickets had a face value of $800 each. He did not enter the lottery to seek tickets offered at face value but filed a putative class action under New Jersey’s Ticket Law, N.J. Stat. 56:8-35.1: It shall be an unlawful practice for a person, who has access to tickets to an event prior to the tickets’ release for sale to the general public, to withhold those tickets from sale to the general public in an amount exceeding 5% of all available seating. The Third Circuit concluded that Finkelman had standing based on the plausible economic facts he pleaded, but deferred action on the merits pending decision by the Supreme Court of New Jersey on a pending petition for certification of questions of state law. View "Finkelman v. National Football League" on Justia Law

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Defendants manufacture and distribute FDA-approved prescription eye drop medications for treating conditions such as glaucoma. Bottles are pre-packaged with a fixed volume of medication; labeling does not indicate how many doses or days of treatment a patient can extract from the bottle. The dimensions of the bottle’s dropper tip dictate the size of the drop dispensed. Scientific research indicates that a normal adult’s inferior fornix – the area between the eye and the lower eyelid – has a capacity of approximately 7-10 microliters (µLs) of fluid. If a drop exceeding that capacity is placed into an eye, excess medication is expelled, providing no pharmaceutical benefit to the patient. Expelled medication also may flow into a patient’s tear ducts and move into his bloodstream, increasing the risk of certain harmful side effects. These studies conclude that eye drops should be 5-15 µLs. Defendants’ products emit drops that are considerably larger so that at least half of every drop goes to waste. The Third Circuit reversed dismissal of a putative class action (Class Action Fairness Act, 28 U.S.C. 1332) under state consumer protection statutes. The consumers’ allegations of injury were sufficient to confer standing. Plaintiffs claim economic interests in the money they spent on medication that was impossible for them to use; their concrete and particularized injury claims fit comfortably in categories of “legally protected interests” readily recognized by federal courts. View "Cottrell v. Alcon Laboratories" on Justia Law