CLASSIFIED: Carlton Fields' Class Action Blog

Staples, Inc. will pay $42 million to settle a dozen class action lawsuits where the plaintiffs claimed that the company misclassified its assistant store managers as exempt from overtime to avoid paying extra wages.  The settlement resolves claims dating back to 2002.

A group of seventeen major networks and production studios, as well as talent agencies, settled a class action lawsuit filed against them by television writers alleging that the companies discriminated against the writers due to their age.

An Xbox user filed a class action lawsuit against Microsoft alleging that Microsoft wrongfully failed to provide the goods and services he paid for with "Microsoft Points," which allow Xbox users to purchase games and other downloadable media from the Xbox Live Marketplace.

Residents living near fraternities at University of California at Berkeley filed a class action lawsuit seeking to require the fraternities to have live-in adult supervisors to curb alleged alcohol abuse, littering and noise violations.

A class action lawsuit has been filed by AT&T customers who use iPhones, Blackberrys, and Smart Phones to access the internet.  The plaintiffs claim that they are being taxed illegally and should receive millions of dollars in refunds.  The federal Internet Tax Freedom Act prevents state and local governments from imposing taxes on those who use their phones to surf the web.  The plaintiffs allege that thousands of Floridians have been improperly billed.

 

Aurora Health Care, a Wisconsin healthcare provider, has been sued in a class action case by several plaintiffs who claim that the company violated their privacy when it disclosed their personal medical information in bankruptcy court.  The plaintiffs are seeking $25,000 in damages for each person whose private information was revealed.

In Pendergast v. Sprint Nextel Corporation, No. 09-10612, 2010 WL 6745 (11th Cir. Jan. 4, 2010), the Eleventh Circuit had before it the issue of whether the class action waiver in the plaintiff’s wireless service agreement is procedurally and substantively unconscionable or void for other reasons. Finding Florida law unclear on the issue, the Court certified the following questions to the Florida Supreme Court:

(1) Must Florida courts evaluate both procedural and substantive unconscionability simultaneously in a balancing or sliding scale approach, or may courts consider either procedural or substantive unconscion-ability independently and conclude their analysis if either one is lacking?

(2) Is the class action waiver provision in Plaintiff's contract with Sprint procedurally unconscionable under Florida law?

(3) Is the class action waiver provision in Plaintiff's contract with Sprint substantively unconscionable under Florida law?

(4) Is the class action waiver provision in Plaintiff's contract with Sprint void under Florida law for any other reason?

In Banner Supply Co. v. Harrell, 2009 WL 4927912 (Fla. 3d DCA Dec. 23, 2009), Florida's Third District Court of Appeal affirmed the trial court's ruling denying the defendant's motion to abate the proceedings pursuant to Chapter 558, Florida Statutes, which relates to litigation involving construction defects.  The plaintiffs initially filed a class action lawsuit against the defendant for personal injury allegedly sustained due to alleged defective drywall imported from China.  At the time they filed their initial complaint, the plaintiffs provided a Chapter 558 notice, but the personal injury claims in that complaint were not subject to Chapter 558.  The plaintiffs later filed an amended complaint asserting a claim for property damage, and the defendant filed a motion to abate, arguing that the plaintiffs had not complied with the statutory requirements of notice and an opportunity to inspect under Chapter 558.  The court held that abatement would have been futile because the required sixty days set forth in Chapter 558 had already passed by the time the hearing on the defendant's motion to abate was heard.  The court did not reach the issue of whether Chapter 558 applied to the case.

In Lowery v. Alabama Power Company, 483 F.3d 1184 (11th Cir. 2007), the Eleventh Circuit interpreted the $5 million amount in controversy requirement in the Class Action Fairness Act, affirming the district court's decision to grant a motion for remand filed by a class of homeowners alleging that several companies caused personal injury and property damage by discharging pollutants into the air and groundwater.  After being added as a defendant to the case in an amended complaint, one company attempted to remove the case to federal court, relying on allegations in the amended complaint concerning the number of plaintiffs and the type of harm they suffered, as well as specific damages allegations in a prior complaint.  The company estimated that each of the 400 plaintiffs needed to seek only $12,500 to reach the $5 million amount in controversy and argued that $12,500 was a low estimate for the amount of damages claimed by each class member, in light of the nature of the claimed bodily injury and property damage.  The court rejected this calculation, reasoning that "we fail to see how we can justify a conclusion that the per-plaintiff recovery will exceed even so low a total" and that to reach such a conclusion the court would have to "engage in impermissible speculation."  The court concluded that the amended complaint alone--which did not allege a specific amount of damages--could not form the basis for removal.

A recent class action decision from the Southern District of Ohio illustrates the difficulty now facing post-Lowery defendants.  Following the approach suggested in Lowery, the defendants in Curry v. Applebee's International, Inc., 2009 WL 4975274 (S.D. Ohio Nov. 17, 2009)--faced with a complaint that did not specifically allege the amount of damages sought by the plaintiff class of purchasers of menu items whose nutritional information was allegedly misrepresented--dutifully waited to receive evidence regarding the amount of damages claimed before attempting to remove the case.  Upon receipt of interrogatory responses indicating that the plaintiff class was seeking the full value of the menu items purchased at an average value of $7 per item, the defendants attempted to remove the case.  The court held that the defendants should have removed the case sooner, upon receipt of a settlement demand requesting compensation in the amount of 5% of the items sold at an average price of $7 per item, because the settlement demand should have indicated to the defendants that the plaintiff class was seeking recovery based upon the value of the menu items purchased.  In a footnote, the court went one step farther, stating that because defendants had knowledge of their own sales figures related to the menu items at issue, the case may have been removable as soon as the complaint was filed.