July 28, 2010 4:06 PM | Posted by Morande, Dean | Florida State Courts
In Canal Ins. Co. v. Gibraltar Budget Plan, Inc., No. 4D09-70 (Fla. 4th DCA July 28, 2010), three premium finance companies filed a class action suit against Canal Insurance Company and Canal Indemnity Company, alleging that they failed to pay interest on late-returned unearned insurance premiums as required by section 627.7283, Florida Statutes. Ultimately, the would-be class representatives were unable to establish numerosity, as the Fourth District was persuaded by “the carrier’s precision-like dissection of the proof in this case.” In reviewing the evidence, the carriers were able to expose the gaps in the evidence connecting them to potential class members’ claims. According to the court, “[w]hen the layers are peeled away, what is left is insufficient proof of numerosity to support the certification of the class.”
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May 5, 2010 6:20 AM | Posted by Christian, Kathryn | Florida State Courts | Link
In Baillargeon v. Sewell, No. 2D08-3828, 2010 WL 1727842 (Fla. 2d DCA Apr. 30, 2010), class representatives filed a claim in probate proceeding in Florida state court on behalf of themselves and other members of the class of plaintiffs who brought a federal class action against the decedent before he died. In the federal class action, the class alleged the decedent violated federal securities laws and the Interstate Land Sales Full Disclosure Act through his involvement in a lease-to-own investment scheme whereby preleased houses would be sold to investors, who expected above-market returns when the renters purchased the homes. The class also asserted several common law claims.
In the probate proceeding, the personal representative moved to strike the class representatives' claim on behalf of the class members, arguing that under the Florida Probate Code each class member had to file his or her own claim. The trial court denied the personal representative's motion to strike the class members' claims, holding that (1) the class members did not have to file claims because the federal class action was pending at the time of the decedent's death; and (2) the class representatives could file class claims on behalf of the class in the probate proceeding. The Second District Court of Appeal rejected the trial court's reasoning, holding that the class members did have to file their own claims and concluding that "it does not seem unfair to us to require the individual class claimants to take the relatively simple step of filing a statement of claim with the probate court in order to preserve their claims against the Decedent."
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April 8, 2010 7:43 AM | Posted by Allen, D. Matthew | Florida State Courts
Is an absent class member a party to a certified class action? What about if the class is a defendant's class and the plaintiff expects to bind the defendant class to a judgment? What rights to absent class members have to get involved in the litigation? Florida's Second District Court of Appeal grappled with these questions in Addison v. City of Tampa, -- So. 2d --, 2010 WL 1328939 (Fla. 2d DCA April 7, 2010).
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February 25, 2010 7:38 AM | Posted by Allen, D. Matthew | Florida State Courts
Class arbitration is a hot area these days. Can a plaintiff who failed to seek a class action in the initial complaint seize the golden apple and seek class arbitration after the defendant moves to compel arbitration of the individual claim? Read this case and find out.
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January 5, 2010 4:00 PM | Posted by Morande, Dean | Eleventh Circuit, Florida State Courts
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?
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January 1, 2010 2:42 PM | Posted by Christian, Kathryn | Florida State Courts | Link
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.
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December 29, 2009 2:38 PM | Posted by Driskell, Fentrice | Florida State Courts
In Hess Corp. v. Grillasca, No. 2D09-1338, 2009 WL 4931668 (Fla. 2d DCA Dec. 23, 2009), customers of Hess Corporation sued the company for holds allegedly placed on funds in their bank accounts in certain circumstances when using debit cards to pay for gas. The trial court was persuaded that the plaintiffs satisfied the requirements for class certification, but Florida’s Second District Court of Appeal was not. Read on to learn more about the arguments that carried the day with the appellate court.
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June 4, 2009 1:45 PM | Posted by Christian, Kathryn | Florida State Courts
In Altamonte Springs Imaging, L.C. v. State Farm Mut. Auto. Ins., Nos. 3D08-652, 3D07-3009, 2009 WL 1531610 (Fla. 3d DCA June 3, 2009), magnetic resonance imaging (MRI) providers brought a class action lawsuit against State Farm Mutual Automobile Insurance Company, alleging that the insurer failed to pay correct consumer price index (CPI) adjustments for MRI reimbursements in personal injury protection claims as required by section 637.736(5)(b)(5), Florida Statutes. The parties entered into a proposed class action settlement agreement, agreeing on the methodology for making the CPI adjustment. This week, the Third District Court of Appeal affirmed the settlement, rejecting arguments by an intervenor objecting to the settlement. Carlton Fields represented the appellees before the Third District. Read more to learn about the court's reasoning.
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June 4, 2009 1:06 PM | Posted by Reddy, Kenya | Florida State Courts
On May 28, 2009, the Supreme Court of Florida announced the adoption of certain amendments to the Florida Rules of Civil Procedure that are intended to provide procedures to improve case management of complex civil litigation. The amendments were proposed by the Task Force on the Management of Cases Involving Complex Litigation, and were adopted by the Supreme Court with slight modifications.
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May 21, 2009 2:49 PM | Posted by Allen, D. Matthew | Florida State Courts
In Campbell v. State, -- So. 2d --, 2009 WL 886227 (Fla. 1st DCA 2009), the First District resolved the appeal of an attorney against whom sanctions were imposed for pursuing "baseless litigation in a class action lawsuit against the State." What happened?
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May 21, 2009 2:21 PM | Posted by Allen, D. Matthew | Florida State Courts
The Florida Third and Fifth District Courts of Appeal have issued class certification opinions in the last two months. Which way did they go?
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March 12, 2009 12:56 PM | Posted by Allen, D. Matthew | Florida State Courts
Should a class of property owners suing a property manager in a dispute over the amount of gross rental income the property owners should receive be certified when the owners' contracts are identical? Find out what the First District held in Brodeur v. Dale E. Peterson Vacations, Inc., -- So. 2d --, 2009 WL 528905 (Fla. 1st DCA 2009).
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February 6, 2009 8:53 AM | Posted by Allen, D. Matthew | Florida State Courts
Can a named plaintiff be considered an inadequate class representative if it lacks the financial resources necessary to fund the cost of notice and class administration? See what the Florida Third District Court of Appeals had to say about this issue.
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January 9, 2009 11:15 AM | Posted by D. Matthew Allen | Florida State Courts
Does a lack of a court reporter and resulting transcript at a class certification hearing impact how the appellate court reviews the proceeding? The Second District's Judge LaRose thinks so! Read on for more details.
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October 17, 2008 10:03 AM | Posted by D. Matthew Allen | Florida State Courts
In Ameriquest Mortgage Co. v. Scheb, -- So. 2d --, 2008 WL 4568383 (Fla. 2d DCA Oct. 15, 2008), Florida's Second District Court of Appeal affirmed "per curiam" an order granting class certification in a case where a homeowner sought repayment of "excess premiums" charged for title insurance policies on refinanced mortgage loans.
Judge Chris Altenbernd filed a concurring opinion in which he provided a practice pointer to class action practitioners. Do you want to know what it is?
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August 21, 2008 11:02 AM | Posted by D. Matthew Allen | Florida State Courts
We have hit a quiet spell in terms of Florida class action law (although the federal courts remain active and we should have some posts up on federal cases shortly). There is a small piece of news on the Florida state court front.
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June 20, 2008 11:00 AM | Posted by D. Matthew Allen | Florida State Courts
In a brief per curiam decision in TT of Longwood, Inc. v. Briggs, Case No. 5D07-8391, the Fifth District today reversed a circuit court discovery order that granted merits discovery prior to class certification, citing its prior decision in Policastro v. Stelk, 780 So. 2d 989 (Fla. 5th DCA 2001).
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June 12, 2008 3:07 PM | Posted by D. Matthew Allen | Florida State Courts
Is a product defect case alleging that an autombile braking system design defect causes premature wear on the front brakes and therefore fails to meet customer expectations amenable to class treatment? Not on the facts of record in Kia Motors America Corp. v. Butler, -- So. 2d --, 2008 WL 2356354 (Fla. 3d DCA June 11, 2008).
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April 22, 2008 11:25 AM | Posted by D. Matthew Allen | Florida State Courts
In Nelson v. Wakulla County, -- So. 2d --, 2008 WL 1774184 (Fla. 1st DCA April 21, 2008), Florida's First District Court of Appeal addressed several aspects of class action settlement practice: (a) the nature and method of disbursement from a common fund, (b) attorney's fees and costs, and (c) class notice.
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April 9, 2008 12:47 PM | Posted by D. Matthew Allen | Florida State Courts
What happens to a class certification order when the named plaintiffs lack standing to bring their claims? As demonstrated in Ell-Cap/Diversified 75 Naples Estates v. Naples Estates Homeowners Ass'n, 975 So. 2d 577 (Fla. 2d DCA 2008), it gets vacated.
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March 6, 2008 1:21 PM | Posted by D. Matthew Allen | Florida State Courts
Can a putative class representative seek merits discovery prior to a class certification determination? In Commonwealth Land Title Ins. Co. v. Higgins, --- So.2d ----, 2008 WL 595923 (Fla. 1st DCA March 6, 2008), the First District joined the Fifth District in saying "no."
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February 25, 2008 10:28 AM | Posted by D. Matthew Allen | Florida State Courts
Is it permissible for a class action to be prosecuted in a Florida county court? In Hernando County v. Morana, -- So. 2d --, 2008 WL 462039 (Fla. 5th DCA Feb. 22, 2008), the Florida Fifth District answered "no," unless the total aggregate amount in controversy is less than $15,000.
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February 8, 2008 4:40 PM | Posted by D. Matthew Allen | Florida State Courts
The Florida appellate courts have been split on the issue of whether the individualized issue of reliance precludes class certification of a Florida Deceptive and Unfair Trade Practices Act claim, with the First District declaring that it does not. In a February 6, 2008 opinion in Egwuatu v. South Lubes, Inc., Case No. 1D07-0977 (Fla. 1st DCA 2008), the First District had occasion to review that determination. What did it do?
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January 20, 2008 1:01 PM | Posted by Kathryn Christian | Florida State Courts
In Grosso v. Fidelity National Title Ins. Co., Case Nos. 3D07-466 and 3D06-2725 (Fla. 3d DCA Jan. 16 2008), the Third District Court of Appeal reversed the trial court's simultaneous certification of a class and approval of a class settlement in a title insurance reissue rate class action. The court held that the trial court erred in failing to apply "heightened scrutiny" to the issue of class certification, which was required since the trial court was certifying the class for settlement purposes only. Id. at 15. In reaching this conclusion, the court pointed out that pursuant to the terms of the settlement, the named plaintiff was to receive $5,000 "roughly one hundred times greater than what the other similarly situated class plaintiffs will receive." Id. at 7 (emphasis in original). The court also pointed out that the named plaintiff expanded the class definition in the settlement to include two related class lawsuits without giving notice to the named plaintiffs in those lawsuits. Id. at 15.
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December 20, 2007 1:34 PM | Posted by Kathryn Christian | Florida State Courts
In Hayes v. Chase Manhattan Bank, No. 1D06-4964, 2007 WL 4372541 (Fla. 1st DCA Dec. 17, 2007), the First District Court of Appeal decided that the plaintiff, whose request to opt out of a class settlement agreement was postmarked after the filing deadline imposed by the district court, was nonetheless not a member of a class and that his claims were therefore not barred by the doctrine of res judicata.
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December 3, 2007 8:16 AM | Posted by Kathryn Christian | Florida State Courts
In Tampa Service Co. v. Hartigan, 966 So. 2d 465 (Fla. 4th DCA 2007), the plaintiff brought a class action against a labor pool company alleging that it violated Florida's Labor Pool Act. The trial court certified the class but failed to specifically name the subsections of Rule 1.220 under which the action was maintainable, in violation of its obligation under Rule 1.220(d)(1) to "state under whch subsection of subdivision (b) the claim or defense is to be maintained." The Fourth District Court of Appeal held that because the trial court's order tracked the language of Rule 1.220(b)(2) and (b)(3), it therefore "sufficiently complie[d]" with Rule 1.220(d). The Foruth District also refused to reverse the trial court's finding that the class representative was adequate, despite defendant's argument that the class representative had "serious credibility problems."
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December 3, 2007 8:06 AM | Posted by Kathryn Christian | Florida State Courts
In S.D.S. Autos, Inc. v. Chrzanowski, Nos. 1D06-5664, 1D06-5662, 2007 WL 4145236 (Fla. 1st DCA Nov. 26, 2007), the First District Court of Appeal addressed the trial court's certification of the consumer class action described in the post below. Automobile lessees sued two automobile dealerships, alleging that they violated the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") by failing to disclose the true nature of fees the dealerships charged in connection with the lease. The First District affirmed certification of the class.
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December 3, 2007 7:28 AM | Posted by Kathryn Christian | Arbitration, Florida State Courts
In S.D.S. Autos, Inc. v. Chrzanowski, Nos. 1D06-4293, 1D06-4294, 2007 WL 414522 (Fla. 1st DCA Nov. 26, 2007), the First District Court of Appeal held that arbitration provisions prohibiting the parties to an automobile lease agreement from asserting claims as a class action were unenforceable. In particular, the court held that the class action waiver in the arbitration agreement, which prohibited consumers from pursuing class relief for claims against motor vehicle dealers based upon alleged of section 501.976, Florida Statutes (2005), was "irreconcilably at odds with the remedial purposes of FDUTPA, contrary to the public policy of this state, and unenforceable for that reason."
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October 3, 2007 3:07 PM | Posted by Robert Ciotti | Alabama District Courts, Alabama State Courts, Analysis, Arbitration, Eleventh Circuit, Florida State Courts, Georgia District Courts, Georgia State Courts, Insurance, Middle District of Florida, News, Northern District of Florida, Southern District of Florida
Can differing state laws on the conscionability of class action waivers in arbitration defeat class certification of nationwide classes?
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September 10, 2007 11:01 AM | Posted by D. Matthew Allen | Florida State Courts
An Orange County Circuit Judge denied class certification in a home construction case filed against Ryland Homes on January 16, 2007, in a 19 page decision just now published on Westlaw.
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September 10, 2007 10:53 AM | Posted by D. Matthew Allen | Florida State Courts
The Second District confirmed that the answer, generally, is "no," in DeLoach v. Aird, -- So. 2d --, 2007 WL 2552071 (Fla. 2d DCA Sept. 7, 2007).
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August 10, 2007 3:01 PM | Posted by D. Matthew Allen | Florida State Courts
We have received two comments on yesterday's post concerning the Third District's Masztal case.
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August 9, 2007 2:06 PM | Posted by D. Matthew Allen | Florida State Courts
In City of Tampa v. Addison, -- So. 2d --, 2007 WL 2254577 (Fla. 2d DCA Aug. 8, 2007, Florida's Second District Court of Appeal said yes.
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August 8, 2007 2:22 PM | Posted by D. Matthew Allen | Florida State Courts
In Masztal v. The City of Miami, an opinion issued today, the Third District ordered the Adorno & Yoss law firm to disgorge a $3.5 million settlement amount for what the court called a "breach of fiduciary duty" to an uncertified, putative class of Miami taxpayers.
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June 8, 2007 9:38 AM | Posted by D. Matthew Allen | Analysis, Florida State Courts
We know that a Florida state court class certification decision is discretionary with the trial court and subject to review on an abuse of discretion standard. But what does this mean in practice?
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May 4, 2007 8:34 AM | Posted by D. Matthew Allen | Florida State Courts
In settlement discussions, we are frequently asked by our class action defendant clients whether they can obtain an agreement from class counsel not to represent future claimants in litigation against them. Is that permissible? No, according to rule 4-5.6(b) of the Rules Regulating the Florida Bar. In fact, according to yesterday's Florida Supreme Court opinion, entering into such an agreement could result in disbarment!
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April 25, 2007 1:34 PM | Posted by D. Matthew Allen | Florida State Courts
Florida's Second District Court of Appeal issued a new class certification decision in a Florida Deceptive and Unfair Trade Practices Act case against an automobile dealer. Want to know more? Click the link.
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April 11, 2007 4:38 PM | Posted by D. Matthew Allen | Florida State Courts
In recent months, several Florida state appellate courts have issued decisions reversing trial court class certification orders on the ground that the order was insufficiently specific. Here's another.
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March 19, 2007 9:11 AM | Posted by D. Matthew Allen | Arbitration, Florida State Courts
One hot topic of late in class action law is whether a class action can occur in arbitration? And who decides? Have the Florida courts weighed in?
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March 9, 2007 10:33 AM | Posted by D. Matthew Allen | Arbitration, Florida State Courts, Insurance
On February 28, 2007, in Freedom Life Ins. Co. v. Wallant, -- So. 2d --, 2007 WL 6000629 (Fla. 4th DCA 2007), the Fourth District rejected the defendant Freedom’s second attempt to send the case to arbitration.
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March 4, 2007 10:48 AM | Posted by D. Matthew Allen | Florida State Courts
On March 2, 2007, in Florida Health Sciences Center, Inc. v. Elsenheimer, Florida’s Second District Court of Appeal reminded class action litigants -- and trial courts deciding certification questions -- that a certification decision must be based on evidence, not merely allegations or argument.
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March 4, 2007 10:45 AM | Posted by D. Matthew Allen | Florida State Courts
In State Dep’t of Highway Safety & Motor Vehicles v. Rendon, -- So. 2d --, 2007 WL 521156 (Fla. 3d DCA Feb. 21, 2007), the Third District joined the Second District in effectively ruling out class actions seeking money damages in refund litigation against the State.
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February 28, 2007 5:54 PM | Posted by D. Matthew Allen | Florida State Courts
Aren't the class representatives supposed to bear the cost of notice of certification to the class? Not according to the Florida court in the circumstances of this decision.
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January 19, 2007 10:25 AM | Posted by D. Matthew Allen | Florida State Courts
In recent months, the Florida courts have issued several opinions in windstorm class actions. Here are two inter-related ones.
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