Consumer Class Action Blog

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Posts Tagged ‘class action’

Another mandatory arbitration clause bites the dust

Posted by Philip Kay on November 7, 2009

Case settled late yesterday, the Friday before a Monday trial.  While I was buried deep in trial prep, Judge Pannell of the Northern District of Georgia issued an excellent ruling on the enforceability of arbitration clauses and class action waiver provisions in consumer contracts.  I discussed this issue back in August, Issue du Jour: Forced Arbitration, and Judge Pannell’s ruling is in line with the (seeming) national trend invalidating mandatory arbitration/class action waiver provisions in consumer contracts.

In Jones v. DirecTV, Inc., 2009 WL 3646197 (N.D.Ga. Oct 29, 2009), the plaintiff filed a class action against DIRECTV for collecting excessive “sales tax” charges ($0.80 per month) and improperly billed “leased receiver” fees ($4.99 per month).  DIRECTV moved to stay the action and compel arbitration based on the broad arbitration clause and a class action waiver provision in its service contract with the plaintiff.

Judge Pannell denied the motion and invalidated the class action waiver provision based on unconscionability.  He based his ruling on the fact that under DIRECTV’s class action waiver provision, claims such as the plaintiff’s would effectively be foreclosed since the costs of prosecuting the claim individually would far exceed the likely recovery.  In so ruling, Judge Pannell validated the very purpose of class action lawsuits:

“The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. The effort and cost of investigating and initiating a claim may be greater than many claimants’ individual stake in the outcome, discouraging the prosecution of these claims absent a class action filing procedure.”

Since the plaintiff in Jones, even if successful on all of her claims, individually stood to recover a very small amount, she would be unlikely to prosecute her claims individually given the costs of litigation.  Thus, DIRECTV’s class action waiver provision was unconscionable because “the remedies available to the plaintiff and members of the proposed class are effectively foreclosed.”  Since the contract (curiously) provided that if the class action waiver provision is deemed unenforceable then the entire arbitration clause is also unenforceable, Judge Pannell invalidated the entire arbitration clause based on the plain language of the contract.  (Not sure how the arbitration clause would have fared absent the tie-in to the class action waiver provision.  DIRECTV’s corporate counsel should have known better – ALWAYS include a severability provision in your consumer contract!)

Maybe I’m reading too much into it, but it does seem like there is a recent trend against the enforceability of mandatory arbitration clauses and class action waiver provisions in consumer contracts.   More judges seem to be looking beyond the strict letter of take-it-or-leave-it consumer contracts and are finding creative ways to get around the more onerous provisions, especially provisions which deny aggrieved consumers access to an effective remedy in court.


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Motions to disqualify: Move early or not at all

Posted by Philip Kay on October 10, 2009

In Murray v. Metropolitan Life Ins. Co., 2009 WL 3080462 (2nd Cir., Sept. 29, 2009), the 2nd Circuit denied class counsel’s motion to disqualify defense counsel based on conflict of interest, but the Court raised more questions than it answered with its broad-brush treatment of the “identity” of defense counsel’s corporate client.

Plaintiffs in this securities class action were policyholders of Metropolitan Life Insurance Company back when it was a mutual insurance company. They filed suit in 2000 alleging they were misled and shortchanged in the transaction by which the company demutualized to become a stock insurance company.  MetLife’s corporate counsel in the demutualization, Debevoise & Plimpton, also served as its lead counsel in this litigation.

Trial was set for September 8, 2009.  Five weeks before trial (i.e., nine years after this action was commenced), plaintiffs moved to disqualify Debevoise because it was MetLife’s corporate counsel in the underlying demutualization. The district court granted the motion to disqualify on September 1, 2009 holding that Debevoise’s representation of MetLife in the demutualization made it counsel to the owner-policyholders as well such that it cannot now represent interests adverse to the policyholders. The district court then stayed its order and immediately certified the issue to the 2nd Circuit.

The 2nd Circuit reversed, finding Debevoise did not have an attorney-client relationship with MetLife’s owner-policyholders by virtue of its representation of MetLife.  The Court held that it was “well-settled” that outside counsel to a corporation represents the “corporation,” not its shareholders or other constituents.

I think the 2nd Circuit should have analyzed this issue a little more thoroughly.  While it may be “well settled” that corporate counsel does not represent the shareholders in their individual capacities, it does not follow that corporate counsel does not represent the shareholders as a collective.  The 2nd Circuit failed to make this distinction, and a closer reading of the “well settled” authority it relied upon reveals merely that corporate counsel does not have an attorney-client relationship with the shareholders individually.   The Court didn’t distinguish between shareholders’ individual vs. collective capacities and in the process distorted the definition of “corporation.”

Who is a “corporation” if not the collective of its shareholders?  The board and officers of a corporation are merely conduits (and fiduciaries) of the shareholders and cannot in any sense be considered “the corporation,” so who exactly did Debevoise represent in the demutualization if not the collective owners-policyholders of MetLife?  The 2nd Circuit was not clear on this point, merely holding that Debevoise represented “the corporation.”  The Court should have engaged in a more thorough analysis of the “identity” of the corporation and who, exactly, Debevoise represented.

The real reason the Court denied class counsel’s motion was because Debevoise had been defense counsel for nine years and class counsel waited until a mere 5 weeks before trial to file its motion to disqualify.  The Court wasn’t about to let class counsel get away with this:

“In this case, disqualification would require MetLife to retain new counsel. Appreciable time and money would be spent to bring new counsel to the state of readiness that Debevoise attained after more than nine years of work. And other circumstances intensify the harm to MetLife: several billions of dollars are at stake, the legal issues are complex, pretrial litigation has been ongoing for more than nine years, and disqualification occurred on the eve of trial.”

Class counsel clearly should have moved for disqualification sooner and their decision to wait until the eve of trial indeed “suggests opportunistic and tactical motives.”  This case is a good reminder that the longer you hold off on a motion to disqualify, the less likely your odds of success.  That said,  MetLife is not an innocent here – the district court ruled back in 2007 that the plaintiff policyholders were the owners of the mutual company and were therefore clients of Debevoise during the demutualization.  Yet, MetLife continued to stick with Debevoise up to the eve of trial instead of obtaining new counsel 2 years ago when it knew this issue was in play.

This Court’s decision in this case raises more questions than it answers and will likely have to be clarified when the 2nd Circuit is inevitably forced to re-examine the issue of corporate “identity,” and its decision in this case, more closely.

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CAN-SPAM preemption – broad yet narrow

Posted by Philip Kay on September 25, 2009

The California Court of Appeals for the Fourth District recently addressed the preemptive scope of the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (“CAN-SPAM,” 15 USC § 7701 et seq) in Powers v. Pottery Barn, Inc., 2009 WL 2991358 (Cal.App. 4 Dist., Sept. 21, 2009), a consumer class action filed against Pottery Barn in California state court.

Powers alleged she visited a Pottery Barn store, selected an item to buy and, when she used her credit card to buy it, was asked to provide an e-mail address. Powers gave the sales clerk her e-mail address and saw the clerk enter the address into the store’s electronic cash register.  Powers then brought suit against Pottery Barn under California’s Song-Beverly Credit Card Act of 1971 (Song-Beverly) which limits the information that may be requested of a consumer when the consumer uses a credit card to transact business.  In particular, Song-Beverly prohibits businesses from requesting or requiring credit card customers to provide “personal identification information,” such as their addresses and telephone numbers.

Pottery Barn moved to dismiss the complaint, arguing that regulation of the collection of e-mail addresses was preempted by CAN-SPAM.

Some background:  CAN-SPAM was enacted in 2003. Under CAN-SPAM the sender of any unsolicited “commercial electronic mail message” is subject to civil liability unless the e-mail contains: a mechanism which permits the addressee to “opt-out” or unsubscribe from further e-mails, an accurate identification of the sender, an accurate subject line, a physical address of the sender and a warning label if the e-mail contains adult content. CAN-SPAM also makes it a crime to send e-mail through a computer without the permission of the owner of the computer (“open-relay”) or place false information in the e-mail header.

By its terms, CAN-SPAM pre-empts any state law that “specifically regulates the use of electronic mail to send commercial messages.”

The trial court agreed with Pottery Barn and dismissed Powers’ complaint, ruling that Powers’ claims were preempted by CAN-SPAM.  Powers appealed.

The California Court of Appeals reversed, finding that while CAN-SPAM pre-empts any state law that “specifically regulates the use of electronic mail to send commercial messages,” it does not pre-empt state laws that “are not specific to electronic mail” and have only incidental impact on e-mail use.  Because Song-Beverly’s regulation of what may be asked of credit card customers is not a regulation of what can be sent in commercial e-mails and is not in any manner specific to e-mail, Song-Beverly is not pre-empted by CAN-SPAM.

The Powers Court got this one right.  While CAN-SPAM’s preemption clause is broad in application – it preempts all state statutes and regulations that purport to regulate commercial e-mail and saves from preemption only those state statutes or regs that target “fraud or deception” – it is narrow in scope because a state statute or reg is only preempted in the first place if it specifically regulates the use of commercial e-mail.  As the Powers court pointed out, incidental effect on commercial e-mail is not enough to invoke CAN-SPAM preemption.  In fact, across the board, every attempt to expand CAN-SPAM’s preemption clause to state statutes which do not specifically regulate e-mail has failed.  See, e.g., Ferron v. SubscriberBase Holdings, Inc., 2009 WL 650731 (S.D.Ohio Mar 11, 2009) (“[b]ecause OCSPA is a consumer protection statute, not limited to matters of electronic mail, CAN-SPAM does not preempt Ohio Revised Code § 1345.02).

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Incentive award for pro-se objector? 10th Cir. says “no,” but leaves door open

Posted by Philip Kay on September 19, 2009

The 10th Circuit addressed a novel issue in UFCW Local 880-Retail Food Employers Joint Pension Fund v. Newmont Mining Corp., 2009 WL 2902565 (10th Cir., Sep 11, 2009):  whether pro-se class action objectors are entitled to incentive awards.

The underlying case was a securities fraud class action commenced in June 2005 in my home District of Colorado.  The case was settled in early 2008.  The settlement called for defendants to create a fund of $15 million, from which various litigation expenses would be paid before the remainder was paid out to the class members.  Class counsel initially requested a fee of $5 million.  Class member Lawrence W. Schonbrun, acting pro se, and another class member, Natasha Engan, represented by counsel, filed objections to the amount of fees requested by class counsel.  Based on the objections, proceedings were held and ultimately the attorney fee award was reduced to $450K.

Mr. Schonbrun then filed an application for an incentive award based on his time and effort spent in the attorney fee proceedings.  The district judge (Judge Marcia Krieger, one of the smartest judges on the bench in my opinion) denied Mr. Schonbrun’s request but granted fellow-objector Ms. Engan her attorney fees because “the services she provided conferred a benefit on class members sufficient to entitle her to a reasonable fee award.”

Mr. Schonberg appealed, claiming that the district court erred in finding that his objection to class counsel’s attorney fees did not benefit the class sufficiently to entitle him to an incentive award. Mr. Schonbrun argued that he was entitled to a pro se incentive award on the same or similar basis as a named class representative.

The 10th Circuit disagreed.  But, it expressly declined to directly decide the issue of whether pro se objectors can ever be entitled to incentive awards.  Instead, the Court focused solely on whether Mr. Schonbrun conferred a benefit on the class and whether Judge Krieger abused her discretion in ruling that he did not.  The Court acknowledged that “[a]n objector whose arguments result in a reduction of attorney-fee and expense awards provides a benefit to the class,” but in this case Mr. Schonbrun’s objections merely mimicked Ms. Engan’s objections and were lacking in any meaningful independent value.  Thus, Mr. Schonbrun did not confer a benefit to the class that was not already provided by Ms. Engan.  “[G]eneral, garden-variety objections usually are not helpful to the court, nor do they benefit the class.”

The Court also declined Mr. Schonbrun’s invitation to apply to his pro se request for an incentive award the same standards applicable to an objector’s request for an attorney fee.  The Court correctly noted the distinction between an objector seeking his own incentive award and an objector seeking payment for his attorney fees.  “A pro se objector’s time and effort is not the same as an attorney fee incurred by an objector… Mr. Schonbrun did not incur attorney fees; therefore, we do not apply the same standards as if he had.”

So, can a pro se objector ever be entitled to an incentive award?  While the Court declined to directly answer the question, it implied that in appropriate circumstances the answer could be “yes.”  But, the threshold requirement is that the objector confer a benefit on the class.  Further, the Court implied that to receive an incentive award, an objector must also put himself “at risk” in the litigation.  Regarding this requirement, see Parker v. Time Warner Entertainment Co., L.P., 2009 WL 1940791 (E.D.N.Y., Jul. 06, 2009): “The amount of the incentive award is related to the personal risk incurred by the individual or any additional effort expended by the individual for the benefit of the lawsuit”.

I’m not aware of any federal circuits that have directly addressed the issue of whether, and in what circumstances, a pro se objector is entitled to an incentive award.  I think the 10th Circuit’s reasoning would likely be followed by other circuits facing this issue and they would require an objector to (1) confer a benefit on the class and (2) incur personal risk in order to be entitled to an incentive award.

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Beware of lodestar “cross-checks”

Posted by Philip Kay on September 13, 2009

The 3rd Circuit affirmed an attorney fee award of $29,950,000 in conjunction with the approval of two settlement agreements in In re Insurance Brokerage Antitrust Litigation, 2009 WL 2855855 (3rd Cir., Sept. 8, 2009), a consolidated class action alleging that insurance brokers had solicited fixed bids from insurance companies and had then received improper payments for directing customers to those companies.

The origins of this case date back to October 2004 when the New York State Attorney General, Eliot Spitzer (yes, that Eliot Spitzer), filed a civil complaint against the insurance broker Marsh & McLennan in New York state court, alleging that Marsh had solicited fixed bids from insurance companies and had then received improper payments for directing customers to those companies. In November 2004, a multi-state group consisting of twelve attorneys general and several state insurance departments began investigating the alleged bid rigging and steering activities of brokers and insurers in the property and casualty insurance industry. Private parties commenced numerous putative class actions in federal courts across the country as well.

The Judicial Panel on Multidistrict Litigation consolidated these private civil actions from multiple jurisdictions and transferred the cases to the United States District Court for the District of New Jersey for pretrial proceedings.  The plaintiffs claimed a vast conspiracy between some of the nation’s largest insurance brokers and insurance carriers involving bid rigging and allocating or steering customers to defeat competition in the insurance market in exchange for high brokerage commissions.

Ultimately, the district court approved the settlement agreements entered into between the plaintiffs and Zurich ($100,000,000) and the plaintiffs and Gallagher (approx. $27,000,000).  The district court also approved an attorney fee award of $29,950,000 attendant to the Zurich settlement.  Various members of the class objected to various aspects of the settlement agreements, and they appealed to the 3rd Circuit following the district court’s final approval of the agreements.

The 3rd Circuit affirmed the approval of the settlement agreements and the attorney fee award.

Most interesting to me was the Court’s discussion of the attorney fee award.  In assessing the reasonableness of the award, the Court analyzed such factors as the size of the settlement fund created, the number of persons benefitted, etc.  The Court then calculated the lodestar to “cross-check” the reasonableness of the award.  Interestingly, the Court accepted the total number of hours submitted by class counsel – 200,000 hours – despite class counsel’s inclusion of all of the time spent to date in the entire consolidated case as opposed to the time spent just in the Zurich component of the case, and despite the appellants’ allegation that the excessive amount of time allegedly spent by some of the firms “raises the possibility of fraud.”

Regarding the inclusion of the entire 200,000 hours in the lodestar calculation, the Court seemed to accept the district court’s finding that “there are situations where the plaintiff’s claims for relief will involve a common core of facts or will be based on related legal theories and that much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.”  The Court also seemed to accept class counsel’s argument that “Class Counsel’s efforts cannot be compartmentalized, as a number of their actions against all the Defendants provide a benefit to the Class and clearly had a bearing on the Zurich Defendants’ interest in and willingness to settle.”  Thus, the Court allowed the lodestar calculation to be based on the entire 200,000 hours expended in the overall MDL litigation.

Since the district court’s calculation of the lodestar multiplier was .4 (based on the 200,000 hours at $365 per hour), the Court concluded that it was reasonable since it was less than 1 “and thus reveals that Class Counsel’s fee request constitutes only a fraction of the work that they billed in conjunction with the Zurich Settlement Agreement.”

Addressing the appellants’ allegations of “billing inflation,” the Court stated:

“Even assuming there was some inflation of the hours billed in relation to the Zurich Settlement or some duplicative work       involved in the total hours count, a significant adjustment would have to be made to the hours calculation before the lodestar multiplier (here, a fraction) would even begin to approach one. While district courts must be aware of the potential for manipulation of the lodestar and lodestar multiplier, we are satisfied that in the present case the District Court’s lodestar cross-check confirmed the reasonableness of the fee request.”

As a matter of principle, I disagree with lodestar cross-checks.  The reasonableness of class counsel’s attorney fee award can be accurately determined without resort to the lodestar analysis, see the 3rd Circuit’s discussion of the seven Gunter factors, and by suggesting that an attorney fee award is prima facie unreasonable if the lodestar multiplier is more than “1” ignores the economic realities of class action litigation.  If class counsel takes the economic risk, their fee should reflect that risk and not be tied to the sing-song hours worked multiplied by a “reasonable” hourly rate.  Personal injury attorneys routinely take cases on a contingency fee basis, and if they score a quick settlement, they deserve their 33% cut regardless of the hours spent on the case because they took the economic risk.  I’ve never heard of anyone “cross-checking” a PI attorney’s contingency fee against the lodestar to determine the reasonableness of his fee.  It should be no different here.  When class counsel invests time, money and resources successfully pursuing a large class action, their fee award should reflect their economic risk and not be artificially “cross-checked” against the lodestar.

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To Intervene or Not Intervene

Posted by Philip Kay on September 7, 2009

The 1st Circuit issued a warning to would-be class action intervenors that they better move early or forever hold their peace.

In National Ass’n of Chain Drug Stores v. New England Carpenters Health Benefits Fund, 2009 WL 2824867 (1st Cir., Sep 03, 2009), the Court affirmed the district court’s judgment approving the settlement of Average Wholesale Price (AWP) class claims against First Databank and Medi-Span, two publishers of drug pricing data.  The Court held that the defendants’ agreement to lower (“roll back”) their published AWP figures to a 1.2 markup (from 1.25) did not violate the Due Process Clause, did not violate Rule 19 of the Federal Rules of Civil Procedure, and satisfied Rule 23(e)(2)’s reasonableness standard.

The actions were brought by purchasers of pharmaceutical drugs against First DataBank, Medi-Span and McKesson (a major drug wholesaler that also owns pharmacy-related businesses).  The complaints alleged that the defendants wrongfully inflated the AWP figure on over 1,400 drug products, resulting in overpayments by third-party payors, insurers and consumers.

First DataBank and Medi-Span agreed to settle the claims against it.  (McKesson also settled the claims against it for $350 million, but that settlement was not part of this appeal).  As part of the settlement, First DataBank and Medi-Span agreed to roll back their published AWP figures.  The trial court issued its final order and judgment on March 30, 2009 in which it certified the class and approved the settlement agreements.  The court delayed implementation of the rollback until September 26, 2009.

The principal objections to the settlements came from non-party pharmacy interests concerned that the rollbacks would reduce the payments to them made by third-party payors.  These non-parties appealed to the 1st Circuit to overturn the district court and un-do the settlements.

The 1st Circuit held that although the pharmacy interests likely stand to lose revenues as a result of the rollback intended by the settlement, the rollbacks do not offend the Due Process Clause or Rule 19.  The Court noted that impacted non-parties can always seek to intervene or otherwise express their views in litigation that may affect their practical interests, and thus were not denied due process.  Further, the appellants forfeited their Rule 19 argument by failing to raise it in the district court.

The Court also held that the settlement was fair and reasonable under Rule 23(e)(2).  The Court stated that the rollback made sense absent some extreme circumstance such as gains for buyers greatly exceeding the original losses or likely to force large numbers of pharmacies out of business.  Since the appellants failed to establish such extreme circumstances, the rollbacks “[were] within the ambit of reasonable choices available to the district judge” and may stand.

Most interesting to me was the Court’s treatment of who had standing to appeal the settlements.   The Court divided the appellants into three categories.

The first category was comprised of entities who objected to the settlement in the district court and who asserted status as members of the class.  None of the appellees disputed that these entities were members of the class and thus the Court concluded that they had the right to appeal whether their interests were typical of the class or not.

The second category was comprised of entities that were not class members but moved to intervene in the district court.  The district court denied their motions to intervene as untimely.  These entities did not immediately appeal the district court’s denial under the collateral order doctrine but waited until after the final judgment to appeal.  The Court bypassed the question whether intervention was properly denied in the district court and permitted intervention on appeal to those entities which sought intervention below. The Court implied, however, that it might not be so generous to future intervenors.

The third category was comprised of would-be appellants who neither asserted class membership nor attempted to intervene in the district court but claimed a right to appeal or appear as parties on appeal simply because their interests were affected by the outcome.  The Court ruled that the entities in this category did not have standing to appeal.  If they wanted to be heard, they should have intervened in the district court:  “[T]he fact that a decision against a defendant may practically impact a third party is not ordinarily enough for appellant status absent intervention or joinder in the trial court.” The Court noted that its decision might be different if the final judgment had purported to alter the legal rights of these non-party non-intervenors, but the final judgment in this case did not have any such effect.  See above discussion re the Due Process Clause and Rule 19.

So what does it all mean, Basil?  If your client may be adversely affected by a class action settlement, move to intervene in the trial court and do it early.  If the trial court denies your motion, immediately file an appeal under the collateral order doctrine.  The 1st Circuit threw the second category of appellants a bone by hearing them on appeal despite their failure to immediately appeal the district court’s denial of their motion to intervene, but I wouldn’t bet the farm on such future charity from the 1st or any other circuit.

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7th Cir. Weighs In On Class Action Circuit Split

Posted by Philip Kay on September 3, 2009

If the named plaintiff in a putative class action settles her own claim but reserves the right to appeal the denial of class certification, can she appeal the denial of class certification?  This was the question facing the 7th Circuit in Muro v. Target Corp., 2009 WL 2707537 (7th Cir. Aug 31, 2009).

In Muro, Target mailed a Target Visa Card to Ms. Muro along with a credit agreement.  The problem was that Muro never applied for the card.  Muro had a Target credit card years before but paid the balance and closed the account.  She did not activate the new Visa Card and did not incur any charges or fees associated with the card.

Muro filed a TILA class action against Target based on the unsolicited credit card.  Her suit alleged that Target violated TILA sections 1642 and 1637.  The court denied class certification of the 1642 claim on typicality grounds and granted summary judgment to Target on the 1637 claim.

Muro and Target then settled the 1642 claim.  In the settlement agreement, Muro “reserved her right” to appeal the denial of class certification.  Muro then appealed the denial of 1642 class certification and the 1637 summary judgment.

On appeal, the 7th Circuit addressed an issue that has split the circuits:  whether a reservation of the right to appeal the class certification issue is sufficient to permit a named plaintiff in a putative class action who has settled her individual claim to appeal the class certification ruling.

The Court answered “no” to the question.  The Court noted that several circuits have confronted the more general issue of whether a prospective class representative who has settled her personal claim can still appeal the denial of class certification.  All of the circuits acknowledge that a plaintiff seeking to appeal such a ruling must have a “personal stake in the definitive adjudication of the class-certification issue.”  Thus, most of the circuits that have considered the issue have held that “a named plaintiff’s unqualified release of claims relinquishes not only his interest in his individual claims but also his interest in class certification.”

There is, however, disagreement among the circuits as to whether a reservation of the right to appeal the class certification issue is sufficient to permit a prospective class representative who has settled her individual claim to appeal the class certification ruling. The 4th and 8th Circuits have made it clear that, in their view, the mere recitation in a settlement agreement that the plaintiff reserves the right to appeal the denial of class certification is not sufficient to create the sort of concrete interest in the class certification issue required for the plaintiff to have standing to prosecute the appeal.  By contrast, the 5th and 11th Circuits have indicated that a reservation of the right to appeal the class certification issue in a settlement agreement is sufficient to give the proposed class representative standing to appeal the class certification issue without any further showing of a concrete interest in the resolution of the issue.  In fact, the 11th Circuit has implied that a proposed class representative who settles her individual claim may appeal the denial of class certification even without an explicit reservation of the right to appeal that issue.

The Muro Court agreed with the 4th and 8th Circuits on this issue and held that issues personal to the prospective class representative must “remain alive in the litigation”  for the plaintiff to have standing to prosecute the appeal.  Thus, when a plaintiff settles her claim, “the settling individual has elected to divorce himself from the litigation and no longer retains a community of interests with the prospective class” and does not have standing to prosecute the appeal even if he “reserves” his right to appeal.

My gut says the Supreme Court would agree with the 4th, 7th and 8th Circuits on this issue.  The Supreme Court is pretty strict about the case-or-controversy requirement and won’t hesitate to dismiss a case for lack of standing as they very recently demonstrated in Summers v. Earth Island Institute, 129 S.Ct. 1142 (March 3, 2009).

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Issue du Jour: Forced Arbitration

Posted by Philip Kay on August 27, 2009

The issue du jour in consumer law has to be the enforcement of mandatory arbitration clauses in consumer contracts.

Last month, the Minnesota Attorney General settled its suit against the National Arbitration Forum (NAF), one of the largest arbitration companies in the country.  The suit alleged that NAF concealed its ties to the credit card industry despite arbitrating a large number of credit card disputes as a third party “neutral.”  NAF allegedly recruited credit card companies as clients and helped draft mandatory arbitration clauses in an effort to steer business its way.  As part of the settlement, NAF agreed to stop handling all consumer credit arbitrations.

Two days after the NAF settlement, the American Arbitration Association announced that it would no longer handle consumer debt-related arbitration “until new [national] guidelines are established.”

Large companies have reacted to the NAF settlement and AAA’s decision in very different ways.  Earlier this month, Bank of America announced that it was abandoning mandatory arbitration in all consumer disputes.  AT&T, on the other hand, has dug in its heels and amended its terms of service to preclude consumers from participating in class actions, whether handled via litigation or arbitration.  The service agreement already precludes any litigation outside of small claims court.

This all serves as a backdrop for yesterday’s decision out of the California Court of Appeals.  In Parada v. Superior Court, 2009 WL 2603093 (Cal. App., 4 Dist., Aug. 26, 2009), plaintiff-investors filed suit against Monex Deposit Company based on investments gone bad.  Monex filed a motion to compel arbitration based on the mandatory arbitration provisions in their contacts with the plaintiffs. The arbitration provisions required arbitration before a panel of three arbitrators from JAMS and prohibited consolidation or joinder of claims.  The trial court granted Monex’s motion and compelled arbitration, and the plaintiffs appealed.

The California Court of Appeals reversed the trial court and found that the arbitration provisions were unconscionable and therefore unenforceable.  The court further found that because the unconscionable paragraphs could not be severed from the rest of the arbitration provisions, the plaintiffs could not be compelled to arbitrate their claims despite the contract’s “severability” clause.

In a well-written opinion, the court made several findings.  First, it found that the court and not the arbitrator had the power to decide whether the arbitration provisions were unconscionable and therefore unenforceable.  The court held that if the party resisting arbitration is claiming the arbitration clause is unconscionable, a court and not the arbitrator must decide the issue. While declining to decide the issue of whether parties to a contract can agree to have the arbitrator decide unconscionability, the court very correctly pointed out in dicta the arbitrator’s clear conflict of interest when he gets to decide the issue of arbitrability.

The court then engaged in a lengthy analysis of the doctrine of unconscionability and found that Monex’s arbitration provisions were both procedurally and substantively unconscionable.  The major factor leading to the court’s finding was that the arbitration provisions called for a panel of three arbitrators, the cost of which was to be borne equally between the parties. The court noted that three JAMS arbitrators would cost $9,600 for an eight-hour day. A four-day arbitration would cost $38,400. Each plaintiff would have to pay half that amount, which would be $19,200 – plus $1,600 in case management fees per party – for a total of $20,800. Since the Monex agreements did not permit consolidation or joinder of claims, each plaintiff would have to initiate a separate arbitration and pay $20,800 minimum in fees for a four-day arbitration, regardless of the amount in controversy.  The court found these costs unconscionably prohibitive.

Another factor leading to the court’s unconscionability finding was that Monex offered no explanation or justification for the prohibition on consolidation or joinder of claims.  The prohibition on consolidation or joinder merely drove up the cost per party of arbitration. The court observed:  “The primary, if not only, reason for requiring arbitration of disputes before a panel of three arbitrators from JAMS, for prohibiting consolidation or joinder of claims, and for splitting the costs of arbitration, must be to discourage or prevent Monex customers from vindicating their rights.”

Finally, the court found that since Monex drafted its unconscionable arbitration provisions “deliberately for the improper purpose of discouraging or preventing its customers from vindicating their rights,” the unconscionable provisions were not severable from the rest of the arbitration provisions.  Therefore, the entire arbitration clause was void and the plaintiffs could proceed in court with their claims.

Me, I’ve never liked arbitration.  Even back in my defense days when I would routinely file (and win) motions to compel arbitration, I always found arbitration to be disconcerting.  The rules are never clear, you never know your (or your opponent’s) boundaries, and often the arbitrator is afraid to really put his foot down and seems more concerned with being liked than with being right.  Nah, I prefer to litigate in real court with established procedures, clear precedent and professional judges who aren’t worried where their next case will come from.

By the way, when will Apple stop breastfeeding AT&T and allow other carriers to provide service for my iPhone?  AT&T’s new “anti-class action” amendment to their service agreement is just another reason (not that I needed another) to dump them as soon as Apple says I can.

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Class (Sort of) Certified in Predatory Lending Action

Posted by Philip Kay on August 22, 2009

In a TILA class action brought by the victims (predatees?) of a complicated mortgage scheme, the Northern District of California denied TILA class certification but only for as long as it takes plaintiffs’ counsel to find a better class representative.

In Plascencia v. Lending 1st Mortg., 2009 WL 2569732 (N.D.Cal., Aug. 21, 2009), the court ruled that the plaintiffs failed to satisfy the typicality requirement of F.R.C.P. 23(a)(3) because their claim was brought after TILA’s one-year limitations period had expired. The plaintiffs knew their claim was barred by limitations but were relying on a class-wide equitable tolling argument.  The court rejected the argument. The court reasoned that to adjudicate the equitable tolling issue would require the type of individualized evidence that is inappropriate in the liability phase of a class action, and it refused to arbitrarily select a specific number of days beyond the normal limitations period to toll the statute for all class members.  The court did certify the plaintiffs’ state-law fraud and UCL classes, but refused class certification on the TILA claim.

The only question remaining is how fast it takes plaintiffs’ counsel to find a class representative whose claim isn’t barred by the one-year TILA limitations period.  The Court practically invited plaintiffs’ counsel to do so and even went so far as to analyze and answer in the affirmative the moot question of whether Plaintiffs’ TILA claim passes muster under F.R.C.P. 23(b)(3)’s predominance requirement.  The court engaged in this analysis “because counsel may move to substitute a new class representative whose TILA claim satisfies the typicality requirement.”   May?

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Interesting FDCPA decision

Posted by Philip Kay on August 19, 2009

Interesting FDCPA decision out of the 7th Circuit a couple days ago. In Ruth v. Triumph Partnerships, 2009 WL 2487092 (7th Cir., Aug 17, 2009),  the court decided an issue of first impression in the federal appellate courts:  whether the “in connection with” element of 15 U.S.C. §1692e is subject to the “unsophisticated consumer” test.

A little background: Section § 1692e provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.”  Its pretty well settled that whether a statement is “false, deceptive, or misleading” is based on whether the statement would mislead or deceive the “unsophisticated consumer” (one who is “uninformed, naive, and trusting, but also assumed to possess rudimentary knowledge about the financial world and capable of making basic logical deductions and inferences”).  Under this standard, even a patently false statement isn’t “false” in the FDCPA sense of the word unless an unsophisticated consumer would find it misleading.

What wasn’t so clear was whether the “unsophisticated consumer” test applied when the question wasn’t whether the statement was false or misleading but whether the statement was made “in connection with” the collection of a debt.  In Ruth, consumers brought an FDCPA class action against a debt collection agency and a company which purchased defaulted debts. The debt collection agency included in the same envelope with its collection notice a second letter from the company which purchased the defaulted debt that falsely informed the debtor that his or her personal, non-public information could legally be shared with marketers, retailers, and other third parties unless the debtor “opted out.”  Was this letter sent “in connection with” the collection of the debt such that the FDCPA applied to it?  The district court ruled that the answer turns on whether an unsophisticated consumer would consider the letter as sent “in connection with” the collection of the debt.

The 7th Circuit reversed and ruled that whether a communication was sent in connection with an attempt to collect a debt is a question of objective fact to be proven like any other fact and it need not be established by extrinsic evidence of what the unsophisticated consumer might think.  Since in this case any reasonable trier of fact would conclude that the letter was sent in connection with an attempt to collect a debt, the FDCPA applied to the letter as a matter of law.   (However, whether the letter was false or misleading still had to be determined using the unsophisticated consumer test, the only exception being when the statement is so clearly misleading on its face that the court deems extrinsic evidence unnecessary.  Lucky for the plaintiffs in Ruth, the 7th Circuit found the letter in question to fall into this “clearly misleading” category).

This is a good case for consumers but there’s an easy out for the debt collectors.  Until now, the debtor who received misleading extraneous material usually had to arm himself with extrinsic evidence (such as consumer surveys) and an expert or two to show that (1) an unsophisticated consumer would consider the extraneous material as sent “in connection with” the debt collection notice such that the FDCPA applies to the extraneous material, and (2) an unsophisticated consumer would consider the extraneous material misleading.  Now, any material included in the same envelope with the collection notice will be considered as sent “in connection with” collecting the debt so the debtor needs only to satisfy element (2).   Not so clear is whether a separate mailing of the extraneous material would yield the same result.  I think in that case we’re probably back to square one.  It may cost the debt collector an extra postage stamp but consumers can expect separate mailings of extraneous material from this point forward.

A side note:  the Ruth court declined to address whether the FDCPA’s bona fide error provision applies to legal errors as opposed to just procedural or clerical errors (such as stating incorrectly the amount owed).  The courts of appeals are divided on this question and the Supreme Court recently granted certiorari on the issue in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 538 F.3d 469, 476 (6th Cir.2008) (holding that the defense applies to legal errors), cert. granted, 557 U.S. —- (June 29, 2009).

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