December 28, 2009 10:01 AM | Posted by Morande, Dean | Southern District of Florida
In Kelecseny v. Chevron, U.S.A., Inc., No. 08-61294-civ, 2009 WL 4262603 (S.D. Fla. Nov. 25, 2009), the plaintiff sought to certify a damages class and an injunctive relief class based on alleged damages resulting from the use of gasoline containing ethanol (so-called “E10”) in his boat.
In his damages class, the plaintiff relied on a market share theory of negligence, under which all gasoline makers who sell E10 in the state of Florida would be liable. The court determined that such a class fails almost all the Rule 23 factors, beginning with a finding that the class itself is not adequately ascertainable because the court would have to undertake individualized inquires as to whether the class members even used E10. Numerosity was not met for essentially the same reason.
On the typicality element, the court noted that it found no case in which market share liability had been applied in a class action. Applying that theory to an entire state—as the plaintiff sought here—was “untenable,” given that use of market share liability requires using the narrowest possible geographic market. The court also found problems with the predominance element based on individualized issues related to causation, comparative fault, and using the market share liability theory.
The plaintiff’s injunctive relief class, which sought that the gasoline makers be required to post warnings regarding the use of E10 in boats, fared no better. In reviewing Eleventh Circuit precedent, the court found it “impossible” for a class ever to be certified under a failure to warn scenario. According to the court, no plaintiff could have standing because, by the time of certification, he would necessarily be aware of the problem.
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September 18, 2009 10:02 AM | Posted by Morande, Dean | Southern District of Florida
The Southern District of Florida in Almonor v. BankAtlantic Bancorp, Inc., No. 07-61862-civ (July 28, 2009), refused to certify a class alleging that BankAtlantic violated ERISA by inflating the value of its stock over the class period.
The court determined that the class representative was inadequate because she actually benefitted from the alleged wrongdoing. Specifically, the class rep elected to direct some of her withholdings into the BankAtlantic stock fund. However, prior to BankAtlantic’s revelation of the overstatement of its earnings—and the attendant plummeting in the stock value—the class rep sold all of her assets in the stock fund. Thus, unlike those class members whose portfolios took a loss because of the overstatement, the class rep benefited from the inflated stock value.
The court also noted that the class definition was overbroad because it included those who purchased stock after BankAtlantic disclosed the overstatement.
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September 4, 2009 4:08 PM | Posted by Morande, Dean | Southern District of Florida
Victims of human rights atrocities in Liberia sought to certify a class consisting of all such victims. The Southern District of Florida in Kpadeh v. Emmanuel, No. 09-20050-civ-Jordan, 2009 WL 2749828 (S.D. Fla. Aug. 25, 2009), held that individualized issues predominate given that each class member must demonstrate both that he or she was illegally tortured and the amount of damages to which he or she is entitled under the law.
The court recognized that at least two courts in other jurisdictions have certified similar classes, but found those cases unpersuasive as those courts failed to rigorously apply Rule 23’s requirements, as is necessary in the Eleventh Circuit.
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June 10, 2009 3:17 PM | Posted by Morande, Dean | Southern District of Florida
In a case of first impression in this circuit, the Southern District of Florida in Hicks v. Client Services, Inc., 2009 WL 1591111 (S.D. Fla. June 1, 2009), wrestled with the question of whether a class action is a superior method of adjudication where recovery under the Fair Debt Collection Practices Act would be de minimis on a class wide basis, and significant if brought on an individual basis.
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June 10, 2009 2:20 PM | Posted by Morande, Dean | Southern District of Florida
In denying the plaintiffs’ motion for remand, the Southern District of Florida in Galstaldi v. Sunvest Communities USA, LLC, 256 F.R.D. 673 (S.D. Fla. Feb. 17, 2009), confirmed that the Class Action Fairness Act’s “event or occurrence” exception to federal jurisdiction for mass actions applies only where a single event or occurrence is at issue.
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April 22, 2009 2:56 PM | Posted by Morande, Dean | Southern District of Florida
The Southern District of Florida in Rosen v. J.M. Auto, Inc., 2009 WL 1033816 (S.D. Fla. Apr. 17, 2009), confirmed that, while discovery aimed at the identity of potential class members is barred prior to class certification, it is available once the class is certified. The court rejected the defendants’ argument that the discovery was untimely because the deadline for discovery had past, holding that plaintiffs’ current motion to compel related back to the original timely motion that had beed denied on the ground that a class was not yet certified. The court also confirmed that the plaintiff must bear the costs expended in compiling the list of potential class members.
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April 6, 2009 11:56 AM | Posted by Morande, Dean | Southern District of Florida
Applying Delaware law, the Southern District of Florida in Caban v. J.P. Morgan Chase & Co., 2009 WL 890392 (S.D. Fla. Mar. 23, 2009), ruled that the class action waiver at issue was unconscionable because it effectively precluded individual suits where a single plainitiff's recovery would be minimal. The court did, however, uphold the mandatory arbitration provision and sent the case to arbitration to be determined on a class-wide basis.
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March 30, 2009 2:12 PM | Posted by Morande, Dean | Southern District of Florida
In In re 21st Century Holding Co. Sec. Litig., 2008 WL 5749572 (S.D. Fla. Nov. 7, 2008), the court granted in part the defendants’ motion to dismiss. The plaintiffs alleged that 21st Century, an insurance holding company, misrepresented its business and financial performance, resulting in the artificial inflation of the company’s stock price.
21st Century moved to dismiss, alleging that the complaint failed as a matter of law to state claims for violations of Section 10(b) and 20(a) of the Securities Exchange Act. The Southern district agreed with respect to certain allegations, though the claims survived.
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March 16, 2009 7:41 AM | Posted by Morande, Dean | Southern District of Florida
In this collective action under the Fair Labor Standards Act, the Southern District of Florida sanctioned Plaintiffs’ counsel for their pre-certification communications to prospective class members. In its discussion of the relevant authorities, the court seemed to indicate that the same rules and rationale it was applying in this collective action would also apply in a class action under Rule 23. Hamm v. TBC Corporation, 2009 WL 289822 (S.D. Fla. Feb. 3, 2009).
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March 16, 2009 7:31 AM | Posted by Morande, Dean | Southern District of Florida
It was in Drossin v. National Action Financial Services, 2009 WL 289826 (S.D. Fla. Feb. 2, 2009). The defendant challenged the lone named plaintiff’s standing to raise a FDCPA claim on the basis that the allegedly offending message was actually meant for someone other than the named plaintiff. The court rejected that argument, holding that, because there was no way for the plaintiff to know the message was not intended for her, she may have a proper claim under the FDCPA.
The court proceeded through the remaining Rule 23 requirements, holding all were met as to the FDCPA claim. With regard to predominance, the court rejected the defendant’s argument that this type of phone message was a “mere aberration” because it failed to produce evidence of “clear policies” supporting that contention.
In addition to the federal FDCPA claim, the plaintiff also brought a Florida Consumer Collection Practices Act claim. That claim, however, was not suitable for class treatment. According to the court, the defendant's assertion that the message was left in error was sufficient to destroy the commonality necessary for a FCCPA claim, which has different requirements than a FDCPA claim.
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March 16, 2009 7:18 AM | Posted by Morande, Dean | Southern District of Florida
Apparently not in the Southern District of Florida. In Santidrian v. Landmark Custom Ranches, Inc., 2009 WL 210668 (S.D. Fla. Jan. 28, 2009), the defendant successfully struck the plaintiff’s allegation purporting to reserve his right to later add plaintiffs in a class action. The court held that such an allegation served no purpose, as the court would set the relevant deadlines for amending the pleadings and adding parties.
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March 16, 2009 7:05 AM | Posted by Morande, Dean | Southern District of Florida
Only when that list of class members is necessary to meet an element of Rule 23. In Drossin v. National Action Financial Services, 2008 WL 5381815 (S.D. Fla. Dec. 19, 2008), the defendant could not provide any information regarding the size of the potential class other than to identify each potential class member. Thus, the discovery was necessary for the plaintiff to address the numerosity requirement.
In that case, the Southern District found an exception to the rule prohibiting pre-certification discovery sought merely for the purpose of identifying individuals for notice of a class action.
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September 28, 2008 4:36 PM | Posted by Dean Morande | Southern District of Florida
While conceding that all the other elements for res judicata were satisfied, the plaintiffs contended that their case did not arise out of a common nucleus of operative facts. The district court disagreed, finding irrelevant that the prior class action was decided on summary judgment and holding that the claims asserted here by the plaintiffs could have been asserted in the prior litigation.
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September 28, 2008 4:16 PM | Posted by Dean Morande | Southern District of Florida
Only documents provided by the plaintiff, according to the Southern District of Florida’s interpretation of controlling Eleventh Circuit precedent.
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September 28, 2008 3:48 PM | Posted by Dean Morande | Southern District of Florida
In rejecting the plaintiffs’ argument that reliance need not be shown to certify a class under the Florida Deceptive and Unfair Trade Practices Act, the Southern District not only distinguished a seemingly contrary Florida state court decision, but explicitly stated that the court is not bound by that decision.
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July 29, 2008 12:00 AM | Posted by Dean Morande | Southern District of Florida
More than a conclusory statement about the aggregate sum of the amount in controversy in an affidavit by an officer of the defendant.
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June 26, 2008 11:49 AM | Posted by Dean Morande | Southern District of Florida
The Southern District of Florida determined in Jones v. Jeld-Wen, Inc., No. 07-22328, 2008 WL 2433213 (S.D. Fla. June 13, 2008), that individualized causation issues precluded certification of a class seeking damages for allegedly defective windows.
The plaintiffs in this action were homeowners seeking certification based on claims that the impact resistant glass installed in their homes was defective. The defendants (or more accurately the third-party defendants who actually manufactured the products) successfully argued that individualized issues predominate because the jury must determine, on a house by house basis, whether the defective resin in the windows was the legal cause of the damages for each pane of glass.
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June 26, 2008 11:43 AM | Posted by Dean Morande | Southern District of Florida
Variations in contract law across the nation, along with factual issues over whether unpaid work was actually performed, led to a finding that individualized issues of both law and fact predominated over issues common to the proposed class.
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June 26, 2008 11:41 AM | Posted by Dean Morande | Southern District of Florida
In In re Managed Care Litigation, No. 00-1334-MD, 2008 WL 2329448 (S.D. Fla. June 4, 2008), the court decided that an opt-out notice containing (1) the name of the person signing the notice, (2) the name of the entity at issue, (3) the address of the entity, (4) a telephone number, (5) and the Federal Tax ID Number of the entity, was sufficient to establish that the entity at issue opted out of the prior class action and was not precluded from going forward with a separate action.
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March 7, 2008 4:16 PM | Posted by Dean Morande | Southern District of Florida
Only if the motion for class certification is unduly delayed, according to the Southern District in Sampaio v. People First Recoveries, LLC, No. 07-22436-civ, 2008 WL 509255 (S.D. Fla. Feb. 19, 2008).
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February 11, 2008 4:39 PM | Posted by Dean Morande | Southern District of Florida
Any time before a motion for certification, according to the Southern District in Grabein v. 1-800-Flowers.com, Inc., No. 07-22235-CIV, 2008 WL 343179 (S.D. Fla. Jan. 29, 2008).
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February 5, 2008 11:39 AM | Posted by Dean Morande | Southern District of Florida
The Southern District confirmed that claims under the Fair Labor Standards Act and Rule 23 can survive together in a single action only if each claim seeks a distinct form of relief. Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665 (S.D. Fla. Jan. 8, 2008).
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February 5, 2008 11:37 AM | Posted by Dean Morande | Southern District of Florida
The Southern District shot down the Plaintiff’s attempt at prevailing party attorneys’ fees where the only basis for fees was the fact that the litigation was brought on a class-wide basis. The court made clear that a class action, by itself, does not present a proper basis for attorneys’ fees. Kallas v. Carnival Corp., No. 06-201150CIV, 2008 WL 111064 (S.D. Fla. Jan. 8, 2008).
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February 1, 2008 11:37 AM | Posted by D. Matthew Allen | Southern District of Florida
Here's a bit of shameless self-promotion about our colleague Neil Kodski. Neil was one of three attorneys recently honored with The Most Effective Lawyer Award in the Class Action category at a luncheon sponsored by the Daily Business Review. Neil and his co-counsel won this honor for representing pro bono a class of Medicaid patients who had been denied reimbursement for the pharmaceutical Neurontin. Congratulations to Neil! For more information about the case, read on.
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December 12, 2007 9:12 AM | Posted by Dean Morande | Insurance, Southern District of Florida
In dealing with this issue of first impression, the Southern District of Florida says “no.”
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December 12, 2007 9:10 AM | Posted by Dean Morande | Southern District of Florida
The defendant in Romano v. Motorola, Inc., 07-civ-60517, 2007 WL 4199781 (S.D. Fla. Nov. 26, 2007), attempted to remove the class action aspect from the litigation by moving to strike the class allegations from the complaint, but, according to the district court, it failed to meet the difficult burden of demonstrating that class certification was “impossible.” In fact, the court really gave short shrift to the argument and provided little analysis in rejecting it.
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December 12, 2007 9:07 AM | Posted by Dean Morande | Southern District of Florida
The small class seemed to work to the plaintiffs’ advantage in satisfying the class requisites in this wage action.
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October 25, 2007 9:23 PM | Posted by Dean Morande | Southern District of Florida
With a nation-wide class of over 10 million members, the Southern District determined that the essentially non-monetary settlement was fair, adequate, and reasonable.
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October 6, 2007 10:42 PM | Posted by Dean Morande | Southern District of Florida
In Kallas v. Carnival Corporation, No. 06-0115, 2007 WL 2819385 (S.D. Fla. Sept. 25, 2007), the plaintiffs moved to compel discovery they argued was relevant to certification issues. The court granted the motion, though it did not explicitly address the class issues.
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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 19, 2007 6:32 PM | Posted by Fentrice Driskell | Southern District of Florida
The court in Gutescu v. Carey Int’l, Inc., 2003 WL 25586749, *4 (S.D. Fla. July 21, 2003) said no and instead engaged in a rigorous totality of the circumstances analysis to determine whether the potential plaintiffs were similarly situated.
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July 20, 2007 6:50 PM | Posted by Fentrice Driskell | Southern District of Florida
In Berry v. Budget Rent A Car Systems, Inc., 2007 WL 2050994 (S.D. Fla. July 17, 2007), the court said no.
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July 12, 2007 11:02 PM | Posted by Dean Morande | Southern District of Florida
Does the relation back doctrine apply under the Class Action Fairness Act (“CAFA”)? Yes . . . at least in the Southern District of Florida in a decision where Florida law applies.
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June 26, 2007 9:17 AM | Posted by Dean Morande | Southern District of Florida
Where the main issue in the litigation was the reasonableness of individual charges for hospital services, the Southern District found most of the requirements for class certification lacking.
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June 19, 2007 1:14 AM | Posted by Dean Morande | Southern District of Florida
Even before the class certification determination, Pfizer is successfully knocking out claims and potential class representatives in this suit alleging false advertising of the widely-prescribed cholesterol reducing drug Lipitor.
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June 19, 2007 12:59 AM | Posted by Dean Morande | Southern District of Florida
The Southern District of Florida managed to find no less than three fatal deficiencies in plaintiff’s motion for class certification based on claims that Home Depot’s damage waiver provision in its tool rental agreements was deceptive.
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May 11, 2007 3:00 PM | Posted by Dean Morande | Southern District of Florida
The Southern District of Florida explained in no uncertain terms that adjudicating a proposed nationwide class action where the laws of all fifty states would be implicated would be "absurd and clumsy."
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January 25, 2007 12:04 PM | Posted by Dean Morande | Southern District of Florida
In Marino v. Home Depot U.S.A., Inc., No. 06-80343, 2007 WL 201260 (S.D. Fla. Jan 24, 2007), the court determined that having to apply 50 states' breach of contract laws meant the claim could not meet the predominance requirement and was not judicially efficient.
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