When civil actions involving one or more common questions of fact are pending in different districts, the Judicial Panel on Multidistrict Litigation (Panel) may transfer those actions to a single district for coordinated or consolidated pretrial proceedings under the Multidistrict Litigation (MDL) process. 28 U.S.C. § 1407. When this happens, a fundamental inquiry arises: Which circuit’s law will the transferee court apply to the class certification determination? District courts are divided into two camps on this issue: one group following the law of the courts from which they were transferred (transferor courts) while the other group applies its own circuit’s laws. The MDL assignment is technically for pretrial proceedings only, and unless the transferred cases are resolved during pretrial proceedings, the Panel must remand the cases back to the transferor courts. 28 U.S.C. § 1407(a).
The justification for the first approach (district courts following the law of the transferor court) has been that the Panel is obligated to remand any transferred cases back to the transferor courts for trial. In other words, class certification is not only a pre-trial issue: class certification requirements are entangled with trial considerations because the trial court will need to examine the facts and law raised by the class claims. Further, given that Section 1407 requires cases to remand to the transferor courts for trial, the transferee court’s authority ends once the pretrial proceedings are completed. The case that best embodies this principle is In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 241 F.R.D. 435 (S.D.N.Y. 2007) wherein the court reasoned, “[i]t would be neither just nor efficient to apply the law of this Circuit in considering class certification, and then force the transferor court to try a class action that it might never have certified.” Thus, the court applied the law of the transferor court in examining class certification.
The justification for the second approach (district courts applying their own circuit’s laws) is that there is only one body of federal law and there is ultimately a single proper interpretation of federal law. At its core, this approach has considerations of consistency and efficiency in mind. One of the more important current cases exemplifying this concept is the Central District of California’s decision in In re Live Concert Antitrust Litigation, 247 F.R.D. 98 (C.D. Cal. 2007). The court in Live Concert held that the transferee court’s law applies to class certification determinations in the MDL context. The Live Concert court noted that “circuit and district courts, including the Ninth Circuit, have uniformly applied the law of the transferee circuit in MDL proceedings involving federal law.”
Unfortunately, so long as the current MDL remand procedure exists, both approaches have their inherent problems since the remand procedure leads to two highly flawed approaches to the choice-of-law issue. Neither approach provides an adequate answer to the choice-of-law question: either the transferee district court abides by its own circuit’s law and faces the risk that the transferor district court or circuit will overturn the decision, or it makes a determination that may be incorrect under its own circuit’s precedent to avoid a problem upon remand.
Coverage on the popular GlaxoSmithKline medicine, Avandia, has recently sparked due to a new Senate report. Although hundreds of individuals suffer each month from the dangerous side affects associated with the drug, the drug still remains on the market. A better look at these latest developments can be read in this NY Times article - "Research Ties Diabetes Drug to Heart Woes".
Shawn Khorrami and James Kenna of KPA have been appointed to the JCCP Steering Committee for Avandia, and will continue to fight on behalf of those injured individuals.
Get to know KPA Senior Associate, Jim Kenna:
Q: Where are you from? A: I was born and raised in a small village in Ireland.
Q: How long have you been in the United States? A: I moved to California in 1984.
Q: Are you on Team Conan or Team Leno? A: Most definitely....Team Conan!
Q: Best song of all time? A: "I still haven't found what I'm looking for" by U2
Q: Starbucks drink of choice? A: Grande latte
Q: Favorite Superhero? A: Batman
Q: Favorite sports team? A: Manchester United - English Premier League Soccer team.
Q: Saying to live by? A: "The true test of character is doing the right thing, when nobody is looking."
Q: Favorite television show? A: Boston Legal.
Q: Favorite fictitious lawyer? A: Atticus Finch from To Kill a Mockingbird.
Q: Tell us a little bit about your experience building houses in the Lower Ninth Ward of New Orleans with other KPA employees through LowerNine.Org. A: It was one of the most rewarding and fulfilling experiences of my legal career to date. Not only am I representing these victims of Katrina in the courtroom, but I was also able to make a tangible difference for some families by physically helping to construct a home for them.
Q: What made you want to practice law? A: I wanted a career that was intellectually challenging and at the same time could effect positive change in society.
Q: Favorite part about being a plaintiff lawyer? A: It is the idea that we are always fighting for the underdog and trying to even the playing field for those less fortunate.
Q: Any advice to clients? A: Be patient because litigation can be a drawn out process. Be upfront about anything negative in your case, and we will work hard for you.
Q: Advice to first year attorneys? A: Ask questions, but also have done some research into potential answers. Don't fear being wrong. Eventually you will find your niche in your firm and your profession.
On February 10, 2010, the California Supreme Court granted review of the decision rendered by the Court of Appeal (Fourth Appellate District, Division Two), in Zhang v. Superior Court,178 Cal.App.4th 1081 (review granted, ordered depublished February 10, 2010). In Zhang, the Court of Appeal determined that an insured was not precluded from bringing a cause of action under California’s Unfair Competition Law (“UCL”) (Cal.Bus.Prof. §17200, et seq.). This decision directly contradicted insurance companies’ long-standing argument that the California Supreme Court holding in Moradi-Shalal v. Fireman’s Fund Ins. Companies, 46 Cal.3d 287 (1988), precludes all private causes of action against insurers.
In ruling for the insured, the California Court of Appeal determined that Moradi-Shalal did not bar a UCL “fraudulent” prong claim against an insurance company, and on a writ petition, reversed a trial court order holding otherwise. Zhang v. Superior Court, 178 Cal.App.4th 1081 (2009). The Court of Appeal’s decision turned on the allegations of the Plaintiff’s claims that the insured had “made fraudulent misrepresentations and promulgated misleading advertising with respect to its intentions to ‘pay provide coverage in the even the insured suffered a covered loss.’” Id. at 1089.
Should the Supreme Court uphold the Court of Appeal’s decision in Zhang, consumers will celebrate a small victory. Essentially, insurance companies will no longer be protected by such a broad umbrella under Moradi-Shalal, and may be held liable for claims of unfair conduct and false and misleading advertising.
In this month's edition of Employment Law Strategist, you can find Matt Bailey's article "Class Litigation of Meal and Rest Period Claims: May Meal and Rest Period Claims Be Certified in a Post-Brinker World?'"
In his article, Matt reviews Brinker Restaurant Corp. v. Superior Court, California's Fourth District Court of Appeal, and how it substantively altered the wage and hour landscape through its conclusion, and how California meal and rest period regulations only impose a passive obligation on employers to make breaks available.
For the latest on California and National Class Action news, follow Matt's blog - the Bailey Class Action Daily.
Current and past Office Max Managers may be owed unpaid wages if they were classified as a Manager and performed non-managerial duties more than 50% of the time.
All employees have enforceable rights and deserve to be paid fairly.
KPA CAN HELP. We are experienced in all aspects of employment law and have extensive knowledge in litigating employment-related claims such as employment discrimination and misclassification, and wage and hour violations.
If you, members of your family, or friends may have a claim, contact us immediately.
After more than two years of litigation, Sonali Kolhatkar et al v. Jane Arellano et al, SACV07-1394-DOC (RNBx), comes to an end, as the Plaintiffs have reached a settlement agreement with the U.S. Citizenship and Immigration Services (USCIS). Filed in August 2007 in the U.S. District Court for the Central District of California, this class action served to be the first of its kind, as it aimed to bring an end to the often prolonged and indeterminate naturalization process of immigrants. Specifically, the Class Complaint alleged that the 2002 institution of FBI name checks to the naturalization process resulted in indefinite delays, with measurable effects on legal permanent residents awaiting adjudication. As a direct result of such delays, Plaintiffs alleged that the federal government was not only effectuating considerable damage to Plaintiff, but that they were also defying laws which mandate the processing of citizenship applications within six months of submission. See 8 U.S.C. §1571 (b).
The terms of the settlement require USCIS to finally adjudicate the hundreds of pending citizenship applications from the greater Los Angeles area. Particularly, USCIS has agreed to ensure the processing of such applications from the Los Angeles, Orange County, and San Bernardino areas within six months. Plaintiffs’ Counsel have essentially secured this process will be timely by mandating access to the relevant data used by the Federal government and auditing their progress. In doing so, the immigration backlog, which has prevented many legal residents from enjoying the benefits of citizenship, will finally meet its end.
In re Tobacco II Cases almost one year later:
A boon for California Consumers, or a bust?
Perhaps no opinion has had more impact on class action litigation in the last year than the California Supreme Court’s decision in the Tobacco II Cases. In less than a year, however, several of the Court’s core findings have been diminished by subsequent interpretation. Matt Bailey examines subsequent treatment of Tobacco II by lower courts, providing insight on some of the current pitfalls in pursuing a class action under the deception prong of the UCL.
To read the full article featured in Advocate Magazine on pages 54 - 61, click here.
For the latest updates on California and National Class Action developments, follow Matt Bailey's Blog: Bailey Class Action Daily.
If you have taken YAZ®, YASMIN® or OCELLA® and suffered from:
- HEART ATTACK
- STROKE
- DEEP VEIN THROMBOSIS (DVT)
- PULMONARY EMBOLISM
- GALLBLADDER DISEASE
Contact us immediately!
YAZ®, YASMIN® and OCELLA® have been linked to these serious side effects. If you or a loved one has suffered from any of these life-threatening injuries, you may be entitled to compensation!
Call 213.596.6530 or use our Contact Us page.
Though passing the bar was one of the happiest moments of my life, it was also a frightening realization that I was a lawyer. I was a lawyer. Now I had to know everything. I had to be able to file a case, try it, win it or take it to the Supreme Court….okay so I exaggerate a little, but at the moment the pressure felt that big. I felt like a rookie at the free throw line with the game on the line and trade talks around the corner.
Despite the fact that I worked for my firm as a law clerk for a year and a half before becoming an attorney, I was still nervous and anxious about the responsibilities I would take on as a first year associate. I immediately felt compelled to print old outlines from my Civil Procedure and Torts courses, to bring out all my Examples and Explanations (a.k.a. E&E’s), and to read the Daily Journal every day to become more “lawyerly”…so that I could speak the language that my bosses spoke and actually understand them. I didn’t want to disappoint them or make them regret hiring me. I refused to be the Kwame Brown of my firm.
Although my supervising attorneys were excellent teachers and mentors, I wanted to impress them with brilliant knowledge that I stole from someone else and passed off as my own. I wanted them to think that they signed a Kobe Bryant or a Dwayne Wade, even though I felt like an Adam Morrison.
So, I started to search for knowledge. I began attending networking events hosted by the Consumer Attorneys Association of Los Angeles, the Consumer Attorneys of California, and the American Association for Justice. After a few events, I learned that each of these organizations provide a subcommittee or caucus that could be beneficial to me as a new lawyer. Each of these organizations provide materials, programs, and services, aimed at helping to develop new lawyers and their skills in this profession.
The CAALA New Lawyers Committee is geared toward Consumer Attorney Association of Los Angeles members who have been admitted to practice for less than 10 years. The committee provides "professional networking, inspiration, professional development, and political awareness of the larger issues that face our profession and the justice system as a whole." The committee meets once a month where they host either a speaker series or a Q&A session with a judge. Speaker topics range from building your firm, to discovery, to trial preparation, to handling mass torts cases and class actions. The committee also has booklets and handouts on various topics which are beneficial to a new trial lawyer.
What I’ve taken away from this committee is that I don’t need to know it all. In fact no one knows it all. There are attorneys in this group who have been practicing anywhere from 1-10 years who still need help and aren’t ashamed to ask for it. The great thing is that everyone in this group is ready and willing to help or provide guidance. I encourage all new attorneys to consider joining this group. The next New Lawyers Committee meeting will be held on February 16, 2010 at the CAALA office. The featured speaker is Jack Denove who will be speaking on “Admitting Documents at Trial.”
The Consumer Attorneys of California Women's Caucus is another organization that has been instrumental to my development as an attorney, most importantly as a female attorney. The Women’s Caucus was formed to not only further the mission of CAOC itself but also to provide a means to leadership for women members. The goal of this caucus is to “provide a forum to assist women in forming professional relationships, create mentoring opportunities, sponsor social events, and create and implement strategies for increasing the number of women in the profession, as well as in CAOC membership.”
Though I have only recently become more involved in the Caucus, it has thus far provided me with an idea of what I can do as a female trial attorney to shape this profession to fit my goals. It has provided me with examples of women that I can look up to and reach out to as mentors. More importantly, it has shown me avenues of getting my voice heard to implement the changes I want to see in this profession. Their next event will be the Women Networking Reception on February 25, 2010, at the Ninth Circuit Court of Appeals.
During my first year as an attorney I took on Los Angeles through CAALA and California through CAOC. Now that I’ve become a second year attorney I feel like I’ve graduated to a new level and will take on the nation through the American Association for Justice (AAJ)….more specifically through their New Lawyers Division. AAJ’s ultimate goal is to promote a fair and effective justice system on a national level. “The [New Lawyer] Division works with AAJ to encourage continuing education, scholarships, and increased proficiency by developing and advancing affordable programs, materials, services, and products specifically designated to assist and benefit New Lawyers.” I expect that I will benefit from this organization the same way that I have from the aforementioned groups, but on a national level. I am most excited about utilizing the Document Library to find discovery, motions and briefs or other pleadings to guide me with my cases.
After a year and two months of practicing law I’m still not ready to go to the Supreme Court, but the difference now is that I know I don’t have to be ready. I don’t need to be Kareem Abdul Jabbar right away. I'm content with being Andrew Bynum, new to the game but with so much potential to make it my own……and these organizations will provide me with the tools necessary to do that.
Have you been allowed to continue charging to your bank debit card, even though insufficient funds were available in your account? After being able to make a charge with insufficient funds, have you found your bank has charged an overdraft fee upwards of $35? Overdraft charges can easily add up to hundreds of dollars without you knowing it!
If you have been INVOLUNTARILY enrolled in overdraft protection services, you may be eligible to seek compensation!
You may also be eligible to seek compensation if you enrolled in overdraft protection services and found the terms of your service to be false, misleading or deceptive.
If you have been the victim of deceptive bank overdraft protection practices, contact us here or by calling 213.596.6530.
This is not an issue of banks applying current debits to your account in reverse order of their value, and not the chronological order in which they were made, this is an instance of banks using deceptive practices to apply overdraft protection to your account.
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