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In an amended complaint filed in federal court in Florida, the City of Miami Gardens renewed its allegations that Wells Fargo Bank violated the federal Fair Housing Act (FHA) by steering minority applicants to more expensive loans than they otherwise qualified for, resulting in a blight of foreclosures and costs to the city.  CCL is part of the city’s legal team in litigating the matter.

The case, originally filed more than a year ago, was stayed by U.S. District Court Judge Federico Moreno, while similar cases brought by the City of Miami was heard by the U.S. Court of Appeals for the Eleventh Circuit. Earlier this month, that court revived Miami’s lawsuits against Wells Fargo, as well as Bank of America and Citigroup, which had been dismissed by another district court judge, largely on grounds that the city lacked standing to prosecute FHA claims. CCL President Robert S. Peck argued the three successful appeals on behalf of Miami.

Miami Gardens’ new complaint also incorporates guidance received in June from the U.S. Supreme Court on the requirements for claims based on disparate impact under the FHA.

On August 6, 2015, the U.S. Court of Appeals for the Ninth Circuit held that, to qualify as a “mass action” under the Class Action Fairness Act, making an action filed in state court eligible for removal to federal court, a plaintiff must affirmatively propose a joint trial with other similar cases. In Briggs v. Merck Sharp & Dohme, the appellate court unanimously reversed a trial-level decision that had found federal jurisdiction under CAFA over five separate suits originally filed in California state courts. The Ninth Circuit decision adopted in toto the positions advocated by CCL Chief Litigation Counsel Louis Bograd in support of plaintiffs. The Court first agreed with plaintiffs on a threshold jurisdictional question, holding that a petition for leave to appeal filed within 10 days of the denial of a motion for reconsideration is timely. Turning to the merits, the Court of Appeals ruled that a “proposal” for joint trial under CAFA must be made to a court with the authority to effect the relief requested and, therefore, statements made in federal court cannot constitute such a “proposal.” The panel also ruled that a plaintiff who files a coordination petition that specifically says it is not for a joint trial does not trigger CAFA. Finally, the court ruled that a proposal for bellwether trials in a state mass tort proceeding is not a proposal for joint trials. The Briggs ruling provides clear guidance for plaintiffs who wish to keep their mass tort cases in state court. CCL’s co-counsel in this appeal included Ryan Thompson of Watts Guerra LLP, Hunter Shkolnik of Napoli Bern Ripa Shkolnik LLP, and John Restaino of Restaino Siled LLD.

In a reply brief filed October 3, CCL told the Indiana Court of Appeals that the State’s brief misunderstands the issue raised in CCL’s challenge to the aggregate cap in the state’s Tort Claims Act.  The State’s brief defended the right of the State to limit its damages on both a per-individual and per-occurrence basis, even if that results in different limits for similarly injured persons.  CCL’s opening brief argued that the differential treatment of claimants constituted a violation of the state constitution’s Equal Privileges and Immunities Clause.

The case arises from the stage collapse at the 2009 Indiana State Fair after a tornado suddenly appeared as crowds were gathered for an evening concert.  Seven people were killed, and another 58 were injured in the incident. The Tort Claims Act limits the State’s liability to $700,000 per person and $5 million per incident. Because of the large number  of people injured, the State attempted to settle claims by distributing the $5 million aggregate cap on a pro rata basis, after allocating $350,000 to every wrongful death claim.  Plaintiff Jordyn Polet, who was offered about $1,600 on a claim estimated to be worth $100,000, was the only claimant who refused the settlement offer. Her offer was then redistributed among the settling claimants, who later received another $6 million appropriated by the legislature after it determined the original $5 million was insufficient. When Polet sought to sue under the Tort Claims Act, the State asserted an affirmative defense, claiming that she lost her cause of action when she refused the settlement offer and that the overall $5 million cap means that the State has expended its entire responsibility, foreclosing further claims.

In reply, CCL argues that Polet has an accrued, valid cause of action because the Tort Claims Act unequivocally waived the State’s immunity and that a rejected settlement offer cannot divest her of that claim. Citing the state constitution’s Open Courts provision, the brief indicates that her interest in making a claim vested at the time of the injury and could not be alienated from her by the State’s attempts to settle the case. In response to the State’s claim that its interest in protecting the public fisc overrode all other considerations, CCL’s brief pointed out that this would give the State plenary authority  to set up its tort claims act caps any way it wants, including on a first come, first served basis. Thus, the CCL brief points out, if the day before the present tragedy at the State Fair, only five people were injured when the same stage collapsed and were thus eligible for up to $700,000 in compensation each, the State was free to settle with six of them for $200,000 apiece, and a lone claimant who refused that settlement would still have a cause of action to prove liability and damages above the $200,000 offer because the aggregate cap would not kick in. However, if the stage collapses again the following day after a failure to remedy the previous day’s problem, rendering the negligence more egregious, and 65 more people are injured this time, it is the State’s position that they are free to offer each an even pro rata settlement of less than $77,000 each, redistribute the leftover $77,000 to those willing to settle, and leave the single claimant who refused the settlement without any recourse, solely because the aggregate cap now applies and changes everything. CCL contends that such an approach is inconsistent with the Equal Privileges right.

CCL’s Robert S. Peck is counsel for Polet, along with Anthony Patterson of Indianapolis.  A date for oral argument has not yet been set.

In Public Employees’ Retirement System of Mississippi v. IndyMac MBS Inc., No. 13-640, the U.S. Supreme Court will consider whether the filing of a putative class action serves, under the “American Pipe” rule, to satisfy the three-year time limitation in § 13 of the Securities Act of 1933 with respect to class claims.

An amicus curiae brief written by CCL’s Andre M. Mura and Kathryn S. Minton, and filed on behalf of the American Association for Justice (AAJ) in this case, argues that disallowing American Pipe tolling in the securities context would contravene Congress’s intent and cause uncertainty and confusion in future class action litigation that the Court sought to avoid in American Pipe. In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Court held that commencement of a class action filed pursuant to a federal statute suspended the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been certified. The Court found that tolling was appropriate because it was consonant with the policies animating Rule 23, the applicable limitations statute, and the federal legislative scheme. The decision sought to protect federal procedural interests by preventing duplicative litigation from purported class members during the pendency of class certification.

The CCL brief retraces the analytical path the Court followed in American Pipe to show that the Court need only apply that same logic and reasoning to find American Pipe tolling available here. It argues not allowing tolling would result in a multiplicity of needless protective filings, frustrating the aims of Rule 23 and the Private Securities Litigation Reform Act of 1995 (PSLRA). The brief argues that Congress, therefore, would not have wanted to bar tolling, especially when the outcome would not advance any purpose underlying the Act’s three-year limitation period.

Lastly, the brief cautions against focusing on labelling tolling “legal” or “equitable” and encourages the Court to follow its longstanding approach to determining if tolling is available: by evaluating whether tolling is in accordance with the legislative scheme. 

CCL’s Louis M. Bograd and Andre M. Mura have completed briefing for appeals pending before the en banc U.S. Court of Appeals for the Ninth Circuit, on behalf of plaintiffs injured by propoxyphene-containing pain products. Corber v. Xanodyne Pharm., Inc., No. 13-56306; Romo v. Teva Pharm. USA, Inc., No. 13-56310. These plaintiffs filed separate suits for damages in California state court, and then counsel filed a petition for coordination under California Code of Civil Procedure (“CCP”) 404. The defendants then immediately removed the suits to federal court, based on a provision of the Class Action Fairness Act which authorizes removal of “mass actions.” Plaintiffs requested that the federal district court remand the cases to state court, because these suits did not qualify for removal under CAFA. To qualify as a removable mass action under CAFA, Plaintiffs explained, 100 or more plaintiffs must propose that their cases be tried jointly. The district court and a divided panel of the Ninth Circuit agreed with Plaintiffs that removal was not proper because the plaintiffs had not proposed that their cases be tried jointly, and thus ordered the cases remanded to state court. The Ninth Circuit then agreed to consider this issue en banc.

Plaintiffs argued in supplemental briefing filed yesterday that the filing of a petition for coordination under CCP 404 is not, by itself, a proposal that Plaintiffs’ claims be tried jointly within the meaning of CAFA. In addition, Plaintiffs argued that none of their written submissions requested a joint trial. Lastly, Plaintiffs explained that the Supreme Court’s recent decision in Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014), dispels any doubt that remand is warranted here. For these reasons, Plaintiffs urged the en banc Ninth Circuit to affirm the district court’s remand order.

The en banc Ninth Circuit is scheduled to hear oral argument in June.  

On April 11, the U.S. Court of Appeals for the 10^th Circuit handed down its opinion in Teague v. Johnson & Johnson, an appeal raising issues of federal jurisdiction under the “mass action” provision of the Class Action Fairness Act (CAFA). More than 600 plaintiffs who had suffered injury as a result of their use of transvaginal mesh medical devices manufactured by Johnson & Johnson sued the company in eleven separate actions, each with fewer than 100 plaintiffs, in state court in Oklahoma. Defendant removed the cases to federal court contending that, because all of the cases were before the same judge, the cases constituted a mass action for purposes of federal jurisdiction under CAFA. After the District Court ordered the cases remanded to state court, J&J sought and received permission to appeal the issue to the Court of Appeals.

CCL submitted an amicus brief to the 10^th Circuit on behalf of the American Association of Justice, written by CCL’s Chief Litigation Counsel, Louis Bograd. CCL argued that the filing of multiple, similar lawsuits each with fewer than 100 plaintiffs, without more, does not constitute a proposal that the separate suits be “tried jointly” and thus is insufficient to confer federal jurisdiction as a “mass action” under CAFA.

The 10^th Circuit panel unanimously agreed with CCL, AAJ, and the plaintiffs, and affirmed the district court’s remand order. The Court rejected defendant’s contention that plaintiffs “implicitly” proposed a joint trial by filing multiple lawsuits within a single jurisdiction, where plaintiffs had not asked that the claims be consolidated or coordinated for trial in any way.

Teague is just one of a series of cases in which CCL has defended plaintiffs’ right to sue in the forum of their choice and opposed efforts to remove cases to federal court under the mass action provision of CAFA.

The Supreme Court today put further burdens on class actions that have multiple theories of liability, holding that when only one of those theories survives the damages model used for certification must separately reflect that theory.  In Comcast v. Behrend, the plaintiffs brought an antitrust class action against the cable giant for acquiring a dominant position in the Philadelphia market by trading other markets for it to its Philadelphia competitors.  The resulting lack of competition, plaintiffs said, increased their cable costs.  CCL, in an amicus brief written by John Vail and filed on behalf of AAJ, Public Justice and AARP, urged the Court not to impose economic burdens that would render class actions impractical.

In ruling against the plaintiffs in this antitrust case, the Court avoided a broader rule that would affect the majority of class actions.  As the four dissenters noted, “The Court’s ruling is good for this day and case only. In the mine run of cases, it remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b)(3)when liability questions common to the class predominate over damages questions unique to class members.”

The case was marked with procedural controversy, the Court having itself re-written the question presented, presumably to ask the question it wanted answered.  At oral argument it became clear that the question had been inaptly drafted.  The dissent noted that they would have ruled that review had been improvidently granted, and decried the unfairness to the plaintiffs of the court reaching a decision on a question that it had not fairly asked the parties to discuss.

The decision can be found at  http://www.supremecourt.gov/opinions/12pdf/11-864_k537.pdf.

The Supreme Court wrestled with itself in oral argument about class actions, seeming to conclude it had asked the wrong question in a key case about evidentiary burdens.

In Comcast v. Behrend, in which AAJ, AARP, and Public Justice submitted an amicus brief, written by CCL vice president John Vail, the Court had asked whether, when certifying a class, a trial court must rely on admissible evidence.  At oral argument it became clear that the Court was interested not in admissibility of evidence, but in the quantum of evidence necessary to support class certification.   

The Court had discussed the case at eight conferences, a highly unusual number, before granting review and articulating the question presented.  Most cases are conferenced  just once and most often the Court accepts a question presented in a petition.  The Court seemed chagrined at its own inability to distinguish admissibility and weight of evidence, Justice Kennedy noting, “it has been an awful long time since I have been in the courtroom.”

The Court’s confusion led plaintiff and defense observers to predict that the Court would not hand down a broad ruling in the case. 

At a policy symposium sponsored by the RAND Institute for Civil Justice, CCL’s Robert S. Peck spoke on “The Future of Class Actions after Wal-Mart v. Dukes” Oct. 16 in Santa Monica, California. In the Wal-Mart case in 2011, the Supreme Court of the United States tightened the commonality requirements for the certification of class actions under Federal Rule of Civil Procedure 23 and decertified the largest federal employment class action ever assembled. Since the decision, defendants have tried unsuccessfully to apply the same reasoning to state class actions as a matter of due process. Peck spoke about these cases and why the Court’s new construction of Rule 23 should not affect class actions tried in state courts.

CCL urged the Supreme Court not to make many class actions prohibitively expensive by indulging a presumption that they lead large companies to settle cases unwarrantedly. Careful analysis of over thirty years of empirical study indicates that the proposition simply is not true, CCL’s John Vail wrote in an amicus brief filed today on behalf of the American Association for Justice, AARP, and Public Justice, P.C., in Comcast v. Behrend, No. 11-864. Class actions often are the only way small claims against large companies can be litigated, the brief states.

The case will be argued Nov. 5.