The New York Court of Appeals recently endorsed the trial court’s discretion to grant leave to amend a complaint under CPLR 3025 (b), holding that when the appellate court dismisses the plaintiffs’ complaint without prejudice, and the original action remained pending in the trial court with defendants’ counterclaims, the trial court may grant plaintiffs leave to file a third amended complaint.
plaintiffs
CA Court of Appeal Confirms Narrow Construction for Anti-SLAPP Commercial Speech Exemption
By Jennifer L. Roche on
A recent California Court of Appeal decision highlights the narrow construction given to the commercial speech exemption of California’s anti-SLAPP statute, and the burden on plaintiffs opposing an anti-SLAPP motion on the basis of the exemption.
Coupon Settlements: Discount or Discontent?
By Zachary Klinger on
Congress passed the Class Action Fairness Act of 2005 (“CAFA”) with the hope of preventing abuse in class action lawsuits. CAFA assigns jurisdiction to federal courts over class actions where: (i) the aggregate amount in controversy exceeds five million dollars ($5,000,000); (ii) the class comprises at least 100 plaintiffs; and (iii) there is at least “minimal diversity” between the parties (i.e., at least one plaintiff class member is diverse from at least one defendant). In addition, CAFA mandates that courts apply greater scrutiny to class action settlements and, in particular, those involving coupons (i.e., vouchers or other non-cash disbursements which can be redeemed for (typically discounted) products or services).[1]
Consider Whether the Promise of a Bird in the Hand is Better Than Two in the Bush
By Lisa B. Markofsky on
When drafting settlement agreements, most lawyers give due attention to the scope of any release clause. And for good reason: for defendants, the extent to which the release protects against future litigation is critical, and for plaintiffs, the extent to which it preserves future claims may be equally critical. But lawyers – and particularly those representing plaintiffs – should also give thoughtful attention to the timing of a release clause in any settlement agreement. Otherwise, a plaintiff may find that its “compromise” was nothing more than a unilateral agreement to reduce the value of its claim.
Case Halted: California Court Denies Class Certification in Ford Defective Steering Case
By Jacquelyn Crawley on
On December 22, 2016, a federal District Court Judge in the Northern District of California denied certification of three proposed classes of statewide consumers who purchased or leased certain Ford Fusion or Ford Focus vehicles. The plaintiffs allege that their vehicles contain defective Electronic Power Assisted Steering (“EPAS”) systems prone to sudden and premature failure during normal driving situations. The plaintiffs claim that Ford knew as early as 2007 that the EPAS system was defective, and Ford fraudulently concealed this defect. The plaintiffs also contend they paid more for their cars than they would have if Ford had disclosed the defect. The plaintiffs brought causes of action for (1) common law fraudulent concealment; (2) violation of California’s Consumer Legal Remedies Act (“CLRA”); (3) implied warranty under California’s Song-Beverly Act; and (4) implied warranty under the federal Magnuson-Moss Act.
California UCL Standing Requirement — On This You Can Rely
By Jennifer L. Roche on
The California Court of Appeal recently confirmed, in case there was any doubt, that plaintiffs must allege (and ultimately prove) actual reliance to adequately state a fraudulent prong Unfair Competition Law claim (Cal. Bus. & Prof. Code 17200). In Goonewardene v. ADP, LLC, the plaintiff brought a variety of claims related to her alleged wrongful termination, both against her former employer, and the employer’s payroll services provider. The Court of Appeal determined, among other things, that plaintiff lacked standing to bring the fraudulent prong UCL claim against the payroll services provider.
Courts Split on Standing Issues in FCRA Suits After Spokeo
By Tiffany Woo on
On October 5, 2016, two district courts came to opposite conclusions on whether putative class action plaintiffs had standing to bring claims based on prospective employers’ failure to comply with Fair Credit Reporting Act (FCRA) disclosure requirements.
Standing under Article III of the Constitution requires (1) an injury in fact (2) fairly traceable to the challenged conduct of the defendant and (3) likely to be redressed by a favorable judicial decision. Earlier this year, the Supreme Court in Spokeo, Inc. v. Robins clarified that to confer standing, an injury in fact must be both particularized – affecting the plaintiff in a “personal and individual” way – and concrete – “real, not abstract.”
The Eighth Circuit Extinguishes Claims of Continuing Conduct in Propane Tank Conspiracy
By Stephen R. Chuk on
Before plaintiffs could light the pilot on antitrust claims against two propane tank distributors, a split Eighth Circuit panel cut the gas. In doing so, the majority espoused a narrow view of the applicability of the continuing violations theory in antitrust litigation.
In 2014, following an FTC administrative complaint, class plaintiffs brought suit against defendant distributors Ferrellgas and AmeriGas, alleging that in 2008, facing rising costs of propane, the distributors conspired to reduce the fill level of 20-pound propane tanks from 17 pounds to 15 pounds while maintaining the price. Though a separate group of indirect purchasers settled with Defendants regarding similar claims in 2008, Plaintiffs argued that Defendants’ conspiracy continued, and that Defendants continued to sell the propane tanks at higher prices and at lower fill levels long after the settlements.