Cephalon’s patent, issued in 1997, claimed a specific distribution of modafinil, used to treat sleep disorders. Cephalon obtained Reissue Patent 516 in 2002. Cephaolon’s use of modafinil was patent-protected until April 2015. In 1998, the FDA approved Cephalon’s New Drug Application (NDA) for the brand-name drug Provigil and granted New Chemical Entity exclusivity until December 2005, as an orphan drug. Cephalon later obtained six months of pediatric exclusivity, 21 U.S.C. 355a(c). Without the patent, Cephalon’s exclusivity would have ended in June 2006. In December 2002, four generic drug each independently filed an Abbreviated NDA seeking to sell generic modafinil. All four were treated as the first filer. Each application certification “automatically counts as patent infringement,” 35 U.S.C. 271(e)(2)(A)), so Cephalon sued all four, then entered into “reverse-payment settlements” to keep each out of the market. A putative class of wholesalers who purchased Provigil directly from Cephalon filed suit, alleging a global conspiracy involving Cephalon and the generic manufacturers, 15 U.S.C. 1; four separate conspiracies; and monopolization, 15 U.S.C. 2. A motion for class certification was filed after eight years of litigation. One month later the court granted defendants summary judgment on the antitrust conspiracy claim. The court certified the class after three defendants settled for $512 million. The Third Circuit vacated the class certification order and remanded for further consideration of whether joinder of all class members is impracticable. Plaintiffs have not met their burden of showing that the numerosity requirement of Rule 23(a)(1) was satisfied. View "In Re: Modafinil AntiTrust Litig." on Justia Law

Appellants purchased tickets to Super Bowl XLV and were either displaced from their seats, relocated, or had an obstructed view of the field. The majority of the affected ticketholders settled with the NFL. However, appellants in this instance elected to file suit, alleging various claims relating to breach of contract and fraud. Most of appellants’ claims were dismissed before trial, and class certification was denied. Seven individual appellants went to trial against the NFL and prevailed on breach of contract, but not on fraudulent inducement claims. The court concluded that, because appellants have presented no authority supporting that a third-party vendor with limited responsibility is also responsible for the performance of the express ticket terms, appellants’ argument that the Cowboys are liable for their tort claims fails; an inference of fraudulent inducement is untenable; and the economic loss rule bars appellants' claims. The court also concluded that the contract claims failed where the unambiguous term of the contract entitling ticketholders to “a spectator seat for the game” was not breached by an obstructed view of the video board. Furthermore, the fraudulent inducement claims failed because appellants were not fraudulently induced to buy Super Bowl tickets thinking they would see the game on the video board. As to class certification, the court concluded that the district court did not abuse its discretion in refusing to certify the Displaced Class, the Relocated Class, and the Obstructed-View Class. Finally, the court concluded that the district court did not abuse its discretion in declining to give appellants' proposed jury instruction. Accordingly, the court affirmed the judgment. View "Ibe v. Jones" on Justia Law

Plaintiffs represent a putative class of New Jersey real estate purchasers and refinancers who were overcharged $70 to $350 in fees. Plaintiffs allege that settlement agents (Defendants) intentionally charged Plaintiffs more than the county clerk charged for recording deeds and mortgages and kept the difference. The class claims total over $50 million, exclusive of treble damages and interest. Defendants sought dismissal and raised affirmative defenses, but did not seek to enforce arbitration clauses present in their contracts with Plaintiffs. The case was litigated for 30 months with the focus primarily on class certification. Both sides conducted broad discovery and contested substantive motions. Plaintiffs have served 130 non-party subpoenas and spent over $50,000 on experts. In 2011, the Supreme Court held that the Federal Arbitration Act (FAA) preempted state laws that had previously prohibited a party from compelling bipolar (individual) arbitration in certain situations even when it was specifically agreed to by contract. Defendants demanded enforcement of the arbitration agreements in light of this change in the law, then moved to compel bipolar arbitration. The Third Circuit affirmed in favor of Defendants. Futility can excuse the delayed invocation of the right to compel arbitration; any attempt to compel bipolar before the Supreme Court’s decision would have been futile. View "Chassen v. Fid. Nat'l Fin. Inc." on Justia Law

Plaintiff purchased CVS-brand Vitamin E 400 International Units Softgels at a CVS in Plainview, New York. The bottle containing the product bore a label that advertised the product as supporting “heart health.” Plaintiff filed a putative class action complaint, claiming that there were no scientifically valid studies supporting the “heart health” statements. In her complaint, Plaintiff asserted a violation of the New York Consumer Protection Act (NYCPA) and a piggy-back common law claim of unjust enrichment. The district court dismissed Plaintiff’s complaint for failure to state a claim, concluding that federal law preempted Plaintiff’s effort to maintain this action under New York’s consumer protection law. The First Circuit reversed, holding (1) neither federal nor state law posed any bar to recovery under NYCPA to the extent that recovery was predicated on a failure by CVS to comply with the requirements of Federal Food Drug and Cosmetic Act section 343(r); and (2) the complaint adequately alleged that the label’s statements were misleading in a manner that violated the requirements of section 343(r), and therefore, the unjust enrichment count was also not preempted. View "Kaufman v. CVS Caremark Corp." on Justia Law

Relying on an advertiser’s claim that its fax advertising program complied with the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, Stevens & Ricci allowed the advertiser to fax thousands of advertisements to potential customers on its behalf. More than six years later, Hymed filed a class action TCPA lawsuit, which settled with a $2,000,000 judgment against Stevens & Ricci. While that suit was pending, Auto-Owners sought a declaratory judgment, claiming that the terms of the insurance policy it provided Stevens & Ricci did not obligate it to indemnify or defend Stevens & Ricci in the class action. The Third Circuit affirmed summary judgment, finding that the sending of unsolicited fax advertisements in violation of the TCPA did not fall within the terms of the insurance policy. The “Businessowners Insurance Policy” obligated Auto-Owners to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to which this insurance applies.” The “advertising injury” deals only with the publication of private information, View "Auto-Owners Ins. Co. v. Stevens & Ricci Inc" on Justia Law

Plaintiff filed a putative class action against Mercer, alleging that Mercer had a common policy or practice of failing to inform domestic farm workers of the availability of H-2A work that paid $12 per hour, in violation of the Agricultural Workers’ Protection Act (AWPA), 29 U.S.C. 1831(e) and 1821(f), and the Washington Consumer Protection Act (CPA), Wash. Rev. Code 19.86.020. Plaintiffs also alleged that Mercer failed to pay its own domestic workers $12 per hour when they carried out the same tasks as foreign H-2A workers, in violation of AWPA and state wage laws.The district court certified an Inaccurate Information class and an Equal Pay subclass, corresponding to plaintiffs’ claims. In regard to the Inaccurate Information class, the court concluded that the district court did not abuse its discretion by finding common questions and in finding that common issues predominated under Federal Rule of Civil Procedure 23(b)(3). In regard to the Equal Pay subclass, the court concluded that the district court did not abuse its discretion by identifying a common question of fact concerning whether Mercer’s domestic workers were consistently paid $12 per hour for H-2A work. Finally, the court concluded that the district court did not err in finding that the typicality requirement was met in this case. Accordingly, the court affirmed the judgment. View "Ruiz Torres v. Mercer Canyons" on Justia Law

Plaintiffs Andrew Alwert and Stanley Feldman brought putative class actions against Cox Communications, Inc. (Cox) claiming that Cox violated antitrust law by tying its premium cable service to rental of a set-top box. The district court granted Cox’s motions to compel arbitration, then certified the orders compelling arbitration for interlocutory appeal. The Tenth Circuit granted Plaintiffs permission to appeal. They argued that the arbitration order was improper because: (1) the dispute was not within the scope of the arbitration agreement; (2) Cox waived its right to invoke arbitration; and (3) Cox’s promise to arbitrate was illusory, so the arbitration agreement was unenforceable. Finding no reversible error, the Tenth Circuit affirmed, holding that the arbitration clause in Plaintiffs’ subscriber agreements with Cox covered the underlying litigation and that Cox did not waive its right to arbitration. The Court did not resolve Plaintiffs’ argument that Cox’s promises were illusory because the argument amounted to a challenge to the contract as a whole, which was a question to be decided in arbitration. View "Alwert v. Cox Enterprises" on Justia Law

After a failed merger between Cooper Tire and Apollo Tyres, OFI Asset Management, purporting to act for similarly situated investors, filed a class action against Cooper and its officers. OFI claims that, during merger negotiations, the defendants made material misrepresentations in statements to investors, in violation of federal securities laws, 15 U.S.C. 78j(b), 78n(a), and 78t(a). The Third Circuit affirmed the district court's dismissal of the case, rejecting arguments that that court improperly managed the presentation of arguments. The court upheld a finding that OFI failed to allege sufficient facts to support its claims. The court had ordered OFI to submit a letter “identifying and verbatim quoting” the five most compelling examples it could muster of false or fraudulent statements by Cooper, with three factual allegations demonstrating the falsity of each statement and three factual allegations supporting a finding of scienter as to the making of the statements. The court had subsequently determined that the statements identified as problematic by OFI were either not false or misleading, were “forward-looking” statements protected by the safe harbor established by the Private Securities Litigation Reform Act of 1995, lacked a sufficient showing of scienter, or suffered from some combination of those infirmities. View "OFI Asset Mgmt. v. Cooper Tire & Rubber" on Justia Law

Plaintiffs filed suit alleging that 21 Budget rental car businesses willfully violated the Fair and Accurate Credit Transactions Act (FACTA), 15 U.S.C. 1681c(g)(1), by issuing receipts that contained more than five digits of customers’ credit card numbers. The parties subsequently mediated and agreed on a proposed settlement. The settlement provided that each class member would receive a certificate worth $10 off any car rental or $30 off a rental over $150, with no holiday blackout days. Applying the Class Action Fairness Act (CAFA), 28 U.S.C. 1712(a)-(c), the district court awarded $23,137.46 in attorneys’ fees and costs, and a $1,000 class representative incentive fee. Plaintiffs appealed. The court concluded that the district court erred by following the In re HP Inkjet Printer Litig. mandatory approach in applying section 1712(a)-(c) without explicitly stating that the award was based on an exercise of the district court’s discretion to determine a reasonable attorney’s fee. But plaintiffs do not argue the award was a breach of the district court’s discretion, and if the court remanded, it would be for an explicit exercise of that discretion, applying the principles of section 1712(a)-(c). The court determined that any award greater than $17,438.45 would be unreasonable in light of class counsel’s limited success in obtaining value for the class. Accordingly, the court concluded that any error was harmless and affirmed the judgment. View "Galloway v. The Kansas City Landsmen, LLC" on Justia Law

Plaintiff alleged that, after her employment terminated, defendants failed to pay all of her final wages. She filed a putative class action under Labor Code sections 201-203, also asserting a representative Private Attorneys General Act (PAGA) claim seeking civil penalties on behalf of plaintiff and other aggrieved employees. Defendants submitted an arbitration agreement signed by plaintiff, stating any disputes would be submitted to arbitration and that “[a]ny such claims must be submitted on an individual basis only and I hereby waive the right to bring or join any type of collective or class claim in arbitration, in any court, or in any other forum.” Defendants conceded that the agreement cannot waive the representative PAGA claim. The trial court compelled arbitration of plaintiff’s individual claim, dismissed the class claims, bifurcated the representative PAGA claim, and stayed the PAGA claim pending the completion of arbitration. The court of appeal concluded the order is nonappealable; the order does not appear to constitute a de facto final judgment for absent plaintiffs. The putative class members/aggrieved employees under PAGA because their PAGA claims remain pending. View "Young v. REMX" on Justia Law