The attorney represented more than 400 plaintiffs in a class action related to the diet drug Fen-Phen. Lawyers’ fees were to be limited to 30 percent of the clients' gross recovery. The case settled for almost $200 million. Plaintiffs together received $74 million, 37 percent of the settlement; $20 million was used to establish Kentucky Fund for Healthy Living. The attorney served on the Fund’s board, for which he received $5,350 monthly. The attorney knew that the Kentucky Bar Association was investigating fee division in the case and possible unauthorized practice of law by his paralegal. The attorney subsequently applied to renew his malpractice insurance and answered "no" to questions about possible pending claims and investigations. The policy excluded coverage for dishonest acts and omissions. Members of the class subsequently filed malpractice claims and were awarded $42 million. The insurer sought a declaration that it was entitled to rescind the policy. The district court granted the insurer summary judgment and awarded $233,674.49 for its outlay on defense costs. Class members intervened to protect their ability to recover. The Sixth Circuit affirmed. Disbarment constituted a sufficient "regulatory ruling" under the dishonesty exclusion clause and there were material misrepresentations on the application. View "Continental Cas. Co. v. Law Offices of Melbourne Mills" on Justia Law

This case stemmed from the DLSE's investigation into whether Brinker was complying with its obligations to provide rest and meal breaks to its employees, maintain proper records, and pay premium wages in the event required breaks were not provided. The court considered on appeal issues of significance to class actions generally and to meal and rest break class actions in particular. The court concluded that the trial courts were not obligated as a matter of law to resolve threshold disputes over the elements of a plaintiff's claims, unless a particular determination was necessarily dispositive of the certification question. Because the parties have so requested, however, the court nevertheless addressed several threshold disputes. In regards to the nature of an employer's duty to provide meal periods, the court concluded that an employer's obligation was to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desired, but the employer need not ensure that no work was done. Further, in light of the substantial evidence submitted by plaintiffs of defendants' uniform policy, the court concluded that the trial court properly certified a rest break subclass. On the question of meal break subclass certification, the court remanded to the trial court for reconsideration. With respect to the third contested subclass, covering allegations that employees were required to work "off-the-clock," no evidence of common policies or means of proof was supplied, and the trial court therefore erred in certifying a subclass. View "Brinker Restaurant Corp. v. Super. Ct. of San Diego Cty" on Justia Law

Plaintiffs sought to establish a nationwide class of thousands of borrowers who allegedly paid inflated appraisal fees in connection with real estate transactions financed by Wells Fargo. Plaintiffs subsequently appealed the district court's dismissal of their claims contending that the appraisal practice of Wells Fargo and Rels unjustly enriched Rels and violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq.; the Real Estate Settlement Procedures Act of 1974 (RESPA), 12 U.S.C. 2601 et seq.; California's Unfair Competition Law (UCL), Cal. Bus. & Prof. Code 17200 et seq.; and Arizona's anti-racketeering statute (AZRAC), Ariz. Rev. Stat. 13-2314.04. Because plaintiffs did not plausibly allege a concrete financial loss caused by a RICO violation, the district court did not err in concluding that they lacked standing under RICO and AZRAC. In regards to the UCL claims, the court agreed with the district court that the complaint did not allege "lost money or property" where plaintiffs admitted that Wells Fargo charged them market rates for appraisal services as disclosed on the settlement. The court also rejected plaintiffs' claims under RESPA Section 8(a) and (b), as well as plaintiffs' assertion that the district court erred in dismissing their claims with prejudice rather than sua sponte allowing them leave to amend the complaint for the third time. View "Gomez, et al. v. Wells Fargo Bank, N.A., et al." on Justia Law

Plaintiff appealed the district court's judgment granting Chase's motion to dismiss her putative class action claim brought pursuant to the Maryland Credit Grantor Closed End Credit Provisions (CLEC), Md. Code Ann., Com. Law 12-1001 et seq. The district court concluded that federal regulations preempted relevant portions of the CLEC and that the retail sales installment contract signed by plaintiff and Chase's predecessor in interest did not mandate that Chase comply with the CLEC. The court held that the district court erred in concluding that the CLEC was preempted by the National Bank Act (NBA), 12 U.S.C. 1 et seq., or the Office of the Comptroller of the Currency (OCC) regulations. The court also held that the district court erred in dismissing plaintiff's breach of contract claim and remanded for further proceedings. View "Epps v. JP Morgan Chase Bank, N.A." on Justia Law

This appeal arose from the dismissal of all claims alleged in a putative class action complaint filed pursuant to the Driver's Privacy Protection Act of 1994 (DPPA), 18 U.S.C. 2721-2725. Appellees (Lawyers) were South Carolina attorneys who in 2006 and 2007 instituted several "group action" lawsuits in South Carolina state court against numerous car dealerships under the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (Dealers Act), S.C. Code Ann. 56-15-10 et seq. Appellants (Buyers) were car buyers who received mailings from Lawyers regarding the Dealers Act litigation. Buyers sued Lawyers in this action alleging that Lawyers violated the DPPA when they obtained and used Buyers' personal information without their consent in connection with the Dealers Act litigation. The court held that the district court erred in its determination that the conduct of Lawyers did not constitute solicitation within the contemplation of the applicable DPPA prohibition. Nevertheless, the district court correctly ruled that Lawyers' conduct in respect to Buyers' personal information was undertaken in anticipation and in connection with litigation, a use permitted by the DPPA. View "Maracich v. Spear" on Justia Law

Plaintiff, a class representative, appealed the district court's dismissal of her complaint for failure to state a claim and its order denying her motion for reconsideration. Plaintiff argued that examinations under oath (EUOs) were impermissible conditions precedent to personal injury protection (PIP) coverage under Florida law and the Florida No-Fault automobile insurance statute based on the Florida Supreme Court's decision in Custer Med. Ctr. v. United Auto. Ins. Co. As a result of varying interpretations of Custer in the lower Florida state courts, the court concluded that Florida law was unclear in the context of statutorily mandated insurance and the Florida No-Fault Statute and certified this question to the Florida Supreme Court. View "Nunez v. GEICO General Ins. Co." on Justia Law

A putative class action was filed in the U.S. District Court. The representative plaintiffs in the class action asserted claims of strict liability, negligence and medical monitoring against Merck & Co., Inc. Class certification was eventually denied, and the class action was dismissed. Prior to the dismissal of the putative class action, four Virginia residents filed individual state law actions against Merck in the southern district of New York, asserting federal diversity jurisdiction. The district court granted Merck's motion for summary judgment, finding that the plaintiffs' actions were untimely under Virginia's two-year statute of limitations for personal injuries, and the pendency of the putative class action did not toll Virginia's limitations period for the four plaintiffs' state law claims. The plaintiffs appealed to the U.S. Court of Appeals, and the Virginia Supreme Court accepted certification to determine questions of state law. The Court held that Virginia law recognizes neither equitable nor statutory tolling of a Virginia statute of limitations for unnamed putative class members due to the pendency of a putative class action in another jurisdiction. View "Casey v. Merck & Co., Inc." on Justia Law

Verizon attached a box to a building that plaintiffs owned and used the box to transmit telephone communications to and from Verizon's customers in other buildings. Plaintiffs claimed that Verizon took their property without paying them just compensation and deceived them into believing that no compensation was owed. The court held that plaintiffs have stated a valid "inverse condemnation" claim for just compensation, and that the claim was not time-barred. However, their claim for an alleged violation of General Business Law 349 was barred by the statute of limitations, and their unjust enrichment claim was legally insufficient. The court also held that the courts below properly denied plaintiffs' motion for class certification. View "Corsello v Verizon N.Y., Inc." on Justia Law

Plaintiff commenced a putative class action against Bloomberg alleging a violation of General Obligations Law 5-901 and 5-903; breach of contract; unjust enrichment; negligent misrepresentation; violation of General Business Law 349; and sought declaratory and injunctive relief. The Appellate Division subsequently granted Bloomberg's motion to dismiss plaintiff's complaint in its entirety. The court affirmed, holding that, even affording plaintiff every favorable inference, when reviewing the pleadings and factual allegations of his complaint, plaintiff's failure to identify a cognizable injury proved fatal to his action against Bloomberg. View "Ovitz v Bloomberg L.P." on Justia Law

Assistant managers at Rite Aid stores in Maryland and Ohio joined a nationwide opt-in action in a Pennsylvania federal court, seeking back pay for misclassification of assistant managers as overtime-exempt (Fair Labor Standards Act, 29 U.S.C. 216(b)). One of them (Fisher) then initiated an F.R.C.P. 23(b)(3) class action lawsuit in the District of Maryland, seeking damages for alleged misclassification under Maryland laws. Following dismissal without prejudice under the "first-filed" rule, Fisher refiled in Pennsylvania, asserting diversity jurisdiction. Another plaintiff initiated a class action in the District of Northern Ohio seeking damages for alleged misclassification under the Ohio Act, asserting diversity jurisdiction. The case was transferred to Pennsylvania based on the forum selection clause in the employment contract. The Pennsylvania district court dismissed, holding that state law is not preempted, but that Rule 23 opt-out class actions based on state laws paralleling the FLSA are incompatible with the opt-in procedure under the FLSA, which was designed to prevent litigation through representative action. The Third Circuit affirmed with respect to preemption, but reversed with respect to inherent incompatibility. View "Knepper v. Rite Aid Corp." on Justia Law