Articles Posted in Class Actions

In order to obtain class certification under Federal Rule 23(b)(3), the plaintiffs must be able to show that their damages arose from actions attributable to the defendants who create legal liability. Plaintiffs must show at the class certification stage that they can prove, through common evidence, that all proposed class members were injured by the defendant’s alleged wrongful conduct (or if there are a few who were not, it will be possible to easily identify and exclude those individuals).

In the Comcast antitrust case, the federal court had initially granted certification in Comcast to decide whether the Daubert standard applied to class certification. The federal court ended up decertifying the antitrust class based on two flaws in the damages model offered by the plaintiffs’ expert. First, the court found the model failed to show that damages could be determined on a common basis across the class. Second, the court found that the damages model did not track the plaintiffs’ theory of liability because it included three theories of antitrust injuries the plaintiffs were no longer pursuing and did not categorize the alleged harm from each.

The Comcast case, which was handed down in 2013, is no longer an easy shield for defendants in class certification matters. Comcast does not stand for just antitrust cases. The case decision however, does require plaintiffs to produce a workable damages model that excludes plaintiffs who were not injured.

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In the model years 2009 and 2010, Toyota’s Corolla has been targeted as a dangerous vehicle because of the electric power steering (ETS) system. In fact, two Toyota Corolla owners, one in New York and one in Pennsylvania, filed suit. The Corolla owners have alleged that the steering system’s defect caused their cars to drift out of control. The lawsuits claim that the steering system defect is a serious safety problem and that Toyota was aware of the problem but did nothing to fix it.

It was alleged in the lawsuit that the defect in the electric power steering system caused a driver to spin out of control on a highway, cross the center line into oncoming traffic before crashing into an embankment. The plaintiffs have alleged that the defect in the electric power steering system is significant and widespread, and they seek to have a class certified by the court.

Toyota, on the other hand, has argued that the court should not allow class certification nationwide because the vehicle shares no common problem. Toyota said the defect in the steering system affects only a small number of Corolla owners. Toyota also said it has reviewed the reports of steering problems and has found that the individual complaints may relate to the way steering feels to them or tire conditions on the particular vehicle.

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Pilot Flying J, a truck stop fueling and restaurant chain that is common along Illinois and U.S. highways, has agreed to pay $92 million in fines to the federal government for a scheme to cheat truck drivers out of agreed-upon diesel fuel rebates. The agreement was reached with the U.S. Attorney’s Office for the Eastern District of Tennessee and Pilot Travel Centers, LLC d/b/a “Pilot Flying J.”

It was alleged that the scheme cost the company’s truck driver customers more than $56 million. The agreement came after 10 Pilot Flying J employees pleaded guilty to involvement in the plot to defraud Flying J customers.

Pilot Flying J is one of the largest trucker diesel suppliers in the United States. Flying J offered rebates and discount programs to encourage loyalty among its trucking customers. The discounts offered by Pilot Flying J varied among its numerous truck stops making it difficult for customers to know whether they were getting their agreed-upon discounts. The U.S. Attorney’s Office stated that in some instances, Pilot Flying J instructed its sales staff how to reduce the rebates in order to make some discounts more profitable.

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General Motors has been accused in the deaths of at least 13 individuals because of its deliberate concealment of a defect linked to the faulty ignition switch in more than 2.59 million vehicles. Some lawyers have revived lawsuits because of injuries or deaths as a result of the recalled GM vehicles. It has been reported that GM is concerned about punitive damages. In one case that was settled in September for $5 million, an adviser warned GM of a “substantial adverse verdict” if a jury learned about the fact that GM knew about the defect for almost a decade before it acknowledged the problem.

In addition, GM should be concerned about the cost-cutting features related to the ignition switch. If these cases were to go to a jury, the jurors would learn that the ignition switch problems that have been highlighted by some reports, articles and now lawsuits could have been avoided by a repair that would have cost the company an incredibly small amount, perhaps less than $1 per vehicle. The repair work would have avoided all of these accidents, injuries and deaths.

The delay in acknowledging the deadly ignition switch defect would show a jury how indifferent the company was to the safety of vehicle owners and their passengers. In fact, GM may have been able to fix the ignition switch defect for as little as 57 cents per vehicle. Because of that fact, it goes without saying that lawyers will highlight the fact that such a little bit of money to repair the ignition switch would have avoided the many traumatic deaths and injuries suffered by vehicle owners and occupants, if not for GM’s focus on profits over people.

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A class-action lawsuit was filed in the U.S. District Court for the Northern District of Illinois against a window manufacturer. The basis for the reversal of the approved $90 million settlement for the class-action lawsuit claiming defective windows was due to inequities with respect to the attorney fees of approximately $11 million; meanwhile, the clients — the consumers — would get less than $8.5 million in total.

According to a section of the court’s opinion written by Justice Richard A. Posner, the “class counsel sold out the class.” The settlement was approved by the district court judge and has now been reversed.

The class-action lawsuit claimed that casement windows manufactured between 1991 and 2006 for Pella Corp.’s “Pro-Line Series” had a design defect.

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The U.S. Justice Department reached a settlement with Johnson & Johnson, which is the maker of Risperdal. The settlement of $2.2 billion and a misdemeanor plea comes after a long investigation into the marketing of the pharmaceutical product, Risperdal. It is an anti-psychotic drug known to deliver harmful side effects, especially to young boys and young men most often prescribed the medicine.

In this case, the Department of Justice engaged several whistleblowers around the country to help the investigation and act as Johnson & Johnson informants. In fact, collectively, the whistleblowers will receive upwards of $167 million for their efforts.

The whistleblowers took great risk in assisting the Department of Justice in this investigation. Some of the whistleblowers went undercover, wore a wire, helped in prepping the department lawyers for depositions and otherwise risked their livelihood and their careers.

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The U.S. Court of Appeals for the 7th Circuit in Chicago has agreed that a concert ticket tying parking to the music concert was not a violation of the federal antitrust laws. 

James Batson brought a ticket from O.A.R. Concert at Live Nation’s box office at the 3 on July 10, 2010.  After buying the ticket, Batson noticed on the face of the ticket that a $9 parking fee was included in the price. Every ticket sold included the fee regardless of whether the buyer needed to park a car.

Batson filed suit alleging violations of federal antitrust law as well as California’s unfair competition law.  Live Nation moved to dismiss.

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The U.S. District Court certified a class of property owners in Roxana, Ill., which is a small town across the Mississippi River from St. Louis.  In the lawsuit it was claimed that Shell Oil, together with its subsidiaries, was responsible for the leakage of poisonous benzene and other contaminants into the groundwater under the class members’ homes. 

This case, filed as a diversity lawsuit, charged that the defendants were responsible for the nuisance and related torts in violation of Illinois common law. The property owners sought a remedy for the damages, which they say were primarily the effect of groundwater contamination.

The defendants petitioned the U.S. Court of Appeals for leave to appeal the certification of the class.  The court of appeals decided to grant the request in order to clarify class action law.  See Blair v. Equifax Check Service, Inc., 181 F.3d 832, 835 (7th Cir. 1999). 

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A Federal Trade Commission (FTC) lawsuit has been filed in the U.S. District Court for the Northern District of Illinois in Chicago naming several United States and Canadian companies as defendants.  The allegations in the complaint allege that these companies acted on a medical discount scam that targeted seniors. 

According to the FTC’s lawsuit, seniors in the United States were victims of deceptive telemarketing telephone calls that proposed phony discounts on prescription drugs.  Some of the calls even pretended to be associated with Social Security, Medicare or a medical insurance company.

According to the FTC, the telemarketing phone calls pitched a prescription drug discount card that would supposedly provide big discounts or even free subscription drugs for seniors.  Many of the victims believed they needed to purchase this card in order to continue to receive Social Security benefits, Medicare or other medical insurance.  The sale of the discount card was a part of the scam.  Discount cards that these companies were selling to seniors were actually free by simply calling a toll-free telephone number or visiting a website. 

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Federal District Court Judge Hon. David R. Herndon of the Southern District of Illinois has ordered that Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI) pay $1 million in sanctions for discovery abuses in the multidistrict litigation (MDL) involving the oral anticoagulant Predaxa. This same U.S. Federal District Court, also in the Southern District of Illinois, is where many of the country’s  Yasmin and YAZ (Drospirenone)  birth control injury cases are being handled; also in an MDL.

Judge Herndon found that BIPI, the maker of Predaxa, had chosen not to produce thousands of documents to the plaintiffs, which the judge determined was bad-faith conduct. 

According to the order, BIPI and its German parent company were unable to explain why it chose not to produce critical documents and communications by a deadline set by the judge. The deadline was in June 2012. 

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