CAFA Removal Jurisdiction: Using a Plaintiff’s Complaint Against It

Most cases involving the existence of removal jurisdiction under CAFA involve the $5 million amount in controversy.  In a recent Third Circuit opinion, determining whether or not the putative class had the requisite 100 members proved equally complex.  The case is instructive with respect to the extent to which class action defendants can use the allegations in a complaint to support a claim of jurisdiction.

In Judon v. Travelers Property Casualty Company of America, the plaintiff sought to represent a class of individuals who were injured while riding in common carriers insured by Travelers that were capable of transporting fewer than 16 passengers, and for whom Travelers limited the availability of first-party medical benefits to $5,000.  The plaintiff alleged that under Pennsylvania law, Travelers was required to offer up to $25,000 in first-party benefits.  Critically, the plaintiff alleged that “hundreds of members of the class” were wrongfully denied payment up to $25,000.

Travelers removed, based solely on the allegations in the complaint.  Travelers contended the reference to “hundreds of members” must mean at least 200, so that the numerosity requirement was met.  Travelers also argued that the amount in controversy exceeded $5 million, since (i) each class member could be entitled to $20,000 (the difference between the $25,000 which they were entitled and the $5,000 they were paid); (ii) $20,000 per class member times 200 class members would yield $4 million in compensatory damages; and (iii) the complaint demanded treble damages.

The plaintiff’s motion for remand argued that Travelers, as the removing party, bore the burden of establishing jurisdiction under CAFA, and that Travelers had failed to show to a legal certainty either that the class had at least 100 members or that the amount in controversy exceeded $5 million.  The district court granted the motion to remand, holding that because the plaintiff “vigorously contested” the jurisdictional facts, Travelers was required to produce extrinsic evidence establishing jurisdiction by a preponderance of the evidence.

With respect to the numerosity of the class, however, the Third Circuit reversed.  The court held that numerosity was not “vigorously contested,” because the plaintiff never claimed that there were fewer than 100 class members—only that Travelers had failed to meet its burden.  Travelers was entitled to rely on the “hundreds of members” language in the complaint as an admission in favor of jurisdiction, and the district court should have required the plaintiff to prove to a legal certainty that there could not be 100 members in the class.

The court did not make a similar determination as to the amount in controversy, however, notwithstanding Travelers’ argument that its calculation, like its “200 members” inference, came directly from the allegations in the complaint.  While Travelers was entitled to assume a 200-member class in calculating the amount in controversy, the court held, Travelers’ assumption of $20,000 in damages per class member was faulty because it relied on the maximum exposure per plaintiff—when, in fact, many class members’ claims might well be smaller (indeed, the named plaintiff’s claim was less than $3,000).  Because Travelers’ calculation of the amount in controversy was based on questionable inferences from the complaint, and because Travelers had not submitted any extrinsic evidence to support its calculations or assumptions, the case was remanded.

The takeaways?  First, if a poorly crafted complaint explicitly concedes a jurisdictional fact, defense counsel is permitted to take it and rely on it.  Second, if the jurisdictional fact is not conceded in the complaint, but requires factual assumptions outside the complaint, a removing defendant probably will need to present extrinsic evidence.  And finally, even if the jurisdictional fact seems plain from the face of the complaint, it can’t hurt to bolster the inference with extrinsic facts.

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Posted in Jurisdictional Issues

“Buying Your Peace” in a Class Action Settlement

For defense attorneys negotiating class action settlements, a major consideration is ensuring that their client has indeed “bought its peace”—and won’t be facing follow-on litigation from plaintiffs who may not be bound by the class action settlement.  A recent Ninth Circuit decision helps protect defendants against duplictaive follow-on claims by state attorneys general.

In California v. Intelligender, LLC, the district court approved a nationwide settlement of a class action brought on behalf of disappointed users of Intelligender’s gender prediction test, which Intelligender billed as an accurate predictor of a fetus’ gender.  Subsequently, the state of California brought an action against Intelligender seeking civil penalties, injunctive relief, and restitution for some individuals who were bound by the class action settlement.  Intelligender’s motions for an injunction against the entire action, and then for an injunction only against the state’s restitution claims, were denied by the district court.

The Ninth Circuit upheld the district court’s refusal to enjoin the entire case, agreeing that Intelligender had not met its burden of showing that the class action could bind the state in its sovereign capacity, where it asserted both public and private interests.  The court held that “a CAFA class action settlement, though approved by the district court, does not act as res judicata against the State in its sovereign capacity . . . . Because the State action is brought on behalf of the people, it implicates the public’s interest as well as private interests, and therefore the remedial provisions sweep much more broadly.”

However, the panel reversed the district court’s denial of Intelligender’s motion to enjoin the state’s restitution claims, holding that the district court could and should enjoin these claims in the exercise of its continuing jurisdiction to enforce and administer the class action settlement.  At issue, the court held, was whether there was privity of interests between the class members and the state with respect to its restitution claims.  The district court had found insufficient privity, relying on its determination that (i) the individuals on whose behalf restitution was sought were different from the certified class and (ii) the amount sought by the state was different that allowed under the settlement.

The Ninth Circuit found fault with both premises.  With respect to the individuals involved, the district court had concluded that the class was limited to those individuals who had purchased the Intelligender test and received an inaccurate result, while the state sought restitution on behalf of all individuals who purchased the product, regardless of the result.  The panel noted that the class was not, in fact, limited to those who had received an inaccurate result; the class included all purchasers, but only those who received an accurate result were eligible to recover under the settlement.

As to the disparity in amounts—Intelligender settled with the class for $10 for each claimant who submitted a declaration swearing that she received an inaccurate result, while the state sought restitution of the full $30 purchase price for each purchaser–the Ninth Circuit held this to be irrelevant to privity.  If anything, the court held, the disparity “merely confirms that the State is essentially seeking a double (or at least better) recovery.”  Moreover, the panel noted, the appropriate inquiry is whether the government is suing for the same relief already pursued by the class—not what relief was ultimately granted.  The court noted that CAFA requires prior notification of proposed settlements to appropriate federal and state authorities; had the state of California found the Intelligender settlement inadequate, it could have intervened and objected.

So Intelligender will still face the spectre of injunctive relief as well as civil penalties under California law–$2,500 for each untrue or misleading statement.  But with respect to restitution, Intelligender has indeed  “bought its peace.”

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Posted in Consumer Class Actions, Settlement, Uncategorized

Judge Posner’s Scathing Critique of a Proposed Coupon Settlement

The topic of potential self-dealing in class action settlements has been written about extensively.  While class counsel may be fully aligned with the class in seeking to maximize the settlement, their interests diverge sharply when it comes to determining the portion of the settlement earmarked for attorney fees.  And unlike the size of the settlement itself, the attorney fee award is likely to be of little concern to the defendant, so long as the total cost of the settlement to the defendant is minimized.

The subject may have been convered extensively, but (at least until now) not exhaustively.  A recent Seventh Circuit opinion—authored, predictably, by Judge Posner—addressed the potential conflicts in detail in chastising what it considered a lower court’s less-than-diligent review of a coupon settlement.  While there is nothing particularly extraordinary about the outcome, the opinion reads like an “A” response to a law-school “issue spotter” exam positing a suspect class action settlement.

In Redman v. RadioShack Corporation, a class action was filed on behalf of RadioShack consumers who made purchases with credit or debit cards and received receipts that showed the card’s expiration date—a violation of the Fair and Accurate Credit Transactions Act.  The lawsuit sought only statutory damages, as there was no evidence that the violation resulted in any actual identity thefts from the plaintiffs.

Class counsel and RadioShack agreed on a proposed settlement that would provide each responding class member with a $10 coupon and class counsel with just under $1 million in fees.  Approximately 83,000 potential class members submitted claims for the $10 coupons.  With an estimated $830,000 in coupons being distributed, and an additional $2.2 million in notice and other administrative costs to RadioShack factored in, the district court estimated the value of the settlement at around $4 million—with 25 percent going to class counsel.  The district court approved the settlement.

Judge Posner, in a detailed analysis of the actual value of the settlement and the incentives to the various parties involved, systematically picked apart various features of the settlement and excoriated the district court judge for failing to address them:

•           The panel held that the district court should not have counted RadioShack’s $2.2 million in administrative costs as part of the settlement.  Such costs, Judge Posner reasoned, are “not part of the value received from the settlement by the members of the class.”  While the class admittedly would “get nothing” if notice were not provided, Judge Posner noted that class counsel likewise would get nothing (since the class would derive no benefit from the settlement), and that “without reliable administration the defendant will not have the benefit of a valid and binding settlement.”  Thus, the district court’s calculation of the attorney fee award as “a respectable-seeming 25 percent” of the total settlement was incorrect, because the total settlement was artificially inflated by the administrative costs.

•           Even excluding the administrative costs, Judge Posner concluced that the district court made “[n]o attempt” to estimate the “actual value” of the coupon settlement.  Although approximately $830,000 in coupons were to be distributed, the settlement could not reasonably be valued at $830,000.  Not everyone who received a coupon could be expected to use it, particularly given the short redemption period and the likelihood that “[s]ome recipients of coupons will use them or forget about them.”  And if the customer used the coupon on an item costing less than $10, the proposed settlement did not allow for a cash refund, thereby diminishing the value of the coupons even for some class members who used them.

•           The district court instead based the fee award on the amount of time expended by class counsel, with a 25 percent increase to reflect the risk of the lawsuit to class counsel. Judge Posner responded that “the reasonableness of a fee cannot be assessed in isolation from what it buys.”  As to the risk premium:  “[A]ttorneys’ fees don’t ride an escalator called risk into the financial stratosphere.  Some cases should not be brought . . . and others are such long shots that prudent counsel will cut his expenditure in litigating them of time, effort, and money to the bone.  Neither course was followed by class counsel in this case.”

•           The district court did not scrutinize the proposed settlement’s “clear-sailing clause,” in which RadioShack agreed not to contest class counsel’s fee request.  Since a defendant ordinarily will not agree to such a clause without a reduction in the portion of the settlement that goes to class members, clear-sailing clauses “illustrate[] the danger of collusion in class actions between class counsel and the defendant, to the detriment of class members.”  Judge Posner added that such clauses are particularly suspect in non-cash settlements, such as coupon settlements, where the value of the settlement to class members is more difficult to ascertain.

•           Class counsel filed its fee request after the deadline for objections to the settlement, thereby violating the requirement in Rule 23(h) that fee requests be directed to class members “in a reasonable manner.”  Athough the proposed settlement placed potential objectors on notice of the amount of attorney fees to be requested, the details regarding class counsel’s hours and expenses—as well as class counsel’s rationale for its fee request—were not submitted until the fee request was made.

•           The lead plaintiff was employed by class counsel’s former law firm.  This was not cited as a basis for overturning the settlement, but Judge Posner used the opportunity “to remind the class action bar of the importance of insisting that named plantiffs be genuine fiduciaries, uninfluenced by family ties . . . or friendships.”

In reversing approval of the settlement, the court urged the parties to renegotiate the settlement in a manner that would “shift some fraction of the exorbitant attorneys’ fee awarded class counsel in the existing settlement that we are disapproving to class members.”  The only alternative, the court noted, would be to increase the value of the settlement to class members while leaving counsel’s fee intact.  As RadioShack “is in terrible financial shape,” the court observed, “[a]dding millions to the cost of the settlement to RadioShack might, if not precipitate the company’s failure, make it more likely—an outcome that might leave very little for class members.  A modest settlement is the prudent course.”

The moral of the story?  We’ve said it before:  While class action defendants may not have a direct interest in the division of settlement proceeds between class members and class counsel, they do have an interest in having their settlement approved.  Settlements weighted too heavily in favor of attorney fees will be suspect.  Settlements with such counsel-friendly provisions as “clear sailing clauses” will be even more suspect, particularly where the named plaintiff appears to be under class counsel’s control.  Avoiding such settlements serves the interests of both sides.

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Posted in Consumer Class Actions, Settlement, Settlement Approval, Settlement Approval Issues

No Harm, No Foul in Apple E-Book Notice Screw Up

In mid-September, class notices went out in the ongoing Apple E-books class action lawsuit that might have momentarily had Apple’s attorneys a little concerned. Over three million potential members of the class received information detailing the next phase in the litigation–the trial to determine the extent of damages against Apple. The problem, of course, is that the damages trial was canceled a few months ago.
In this latest (and least substantive) chapter of the ongoing e-book antitrust saga, Plaintiffs’ counsel were forced to explain to the Court that they had for “currently unknown reasons” accidentally sent out notices informing class members about the canceled upcoming damages trial. Plaintiffs thereafter sent a letter to U.S. District Judge Denise L. Cote, clarifying that the class notice had erroneously been sent.
Prior to being rendered unnecessary by the settlement, the second phase of the trial was set to fix Apple’s liability arising from its e-book antitrust violations. After some initial skepticism, Judge Cote approved the settlement in August, eliminating the need for any further litigation on Apple’s damages.
The settlement finally put to rest claims that Apple’s 2010 distribution deal with the top five publishers in the market illegally raised the prices of e-books. The five publishers settled with the government, but Apple took the case to trial, and In July 2013, Judge Cote ruled that the company had orchestrated the scheme in violation of the Sherman Act, which prohibits anti-trust violations. Of course, any damages for antitrust violations could have been trebled, leaving Apple on the hook for potentially hundreds of millions of dollars.
Apple’s schadenfreude in class counsel’s notice error was short lived as Judge Cote quickly allowed the Plaintiffs’ attorneys to correct their error.

Posted in Uncategorized

Cozen’s Tom Wilkinson Comments on Seventh Circuit Opinion Rejecting Class Action Settlement

Cozen O’Connor member Tom Wilkinson is quoted extensively in this article from the ABA’s Litigation News regarding a recent Seventh Circuit opinion rejecting a class action settlement as “scandalous.” The opinion was highly critical of class counsel.

Posted in Uncategorized

Fourth Circuit: Rule 23(f) Review Does Not Apply to Decertification Denials

Rule 23(f) provides for discretionary interlocutory review of an order “granting or denying class-action certification” if a party files a petition for permission to appeal within 14 days after the order is entered.  Last month, the Fourth Circuit rejected an attempt to extend that deadline to appeals from the denials of decertification motions.

In Nucor Corp. v. Brown, the district court originally certified two classes.  Over the next two years, the defendants filed a series of four decertification motions, finding partial success on the second motion, which decertified one of the two classes; the first, third, and fourth motions were denied.  After the denial of their fourth decertification motion, the defendants sought interlocutory review of the denial under Rule 23(f).

The Fourth Circuit, persuaded by the prior like decisions of the Third, Fifth, Seventh, Tenth, Eleventh and D.C. circuits, held that the denial of the decertification motion was not appealable under Rule 23(f).  The order did not grant or deny class-action certification;  it merely refused to disturb the two-year-old original order granting class certification.  In fairly strong words, the court remarked:  “We will not render the Rule 23(f) deadline ‘toothless’ by permitting Nucor to ‘easily circumvent Rule 23(f)’s deadline by filing a motion to amend or decertify the class at any time after the district court’s original order’ . . . .”

The takeaway:  in the Fourth Circuit (and probably every other circuit), the 14-day period runs from the original certification order.  A subsequent order on class certification will be appealable only if it alters the class action status in some way (thus, the plaintiff presumably could have appealed the court’s partial grant of the defendants’ second decertification motion within 14 days).  Mere denial of a motion to reconsider the original ruling, or otherwise decertify the class, is not appealable under Rule 23(f).

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Posted in Class Certification

Third Circuit: Courts, Not Arbitrators, Decide Whether to Require Classwide Arbitration

Recent Supreme Court precedent has clearly reinforced the validity of contractual class action/arbitration waivers.  In AT&T Mobility v. Concepcion, the Court made clear that class action waivers are enforceable, even if state common law would hold them unconscionable.   In American Express Co. v. Italian Colors, the Court extended the same enforceability to class arbitration waivers, even where they effectively eliminate a plaintiff’s ability to vindicate a federal statutory right.

But what if an arbitration provision is silent about the availability of a classwide proceeding?  Can a defendant be required to submit to classwide arbitration?  And is that a decision for the court or for the arbitrator?

According to a Third Circuit opinion issued last week, whether an arbitration provision can be construed to permit classwide arbitration is a question for the court.  In Opalinski v. Robert Half International, the issue was whether this question is a “question of arbitrability.”  The Supreme Court has held that questions of arbitrability—a narrow range of “gateway” issues that go to whether a case is to be arbitrated at all—are presumptively for courts to decide.  Typical questions of arbitrabiltiy include whether the parties are bound by a particular arbitration provision, or whether the provision applies to a certain type of controversy.  Other questions are deemed “procedural” questions that are for the arbitrator to decide.

The Supreme Court has not decided which category characterizes the availability of class arbitration.  A plurality opinion in 2003 concluded that the question was not one of arbitrability, but more recent opinions have emphasized that the issue remains unresolved by the Court.

In holding that the availability of classwide arbitration is a question of arbitrability, the Third Circuit followed the lead of the Sixth Circuit—the only other circuit thus far to squarely weigh in on the issue.  The Third Circuit reasoned that the availability of class arbitration implicates whose claims the arbitrator may resolve, since the procedure would empower the arbitrator to resolve claims of individuals who are not parties to the litigation.  The panel also concluded that allowing class arbitration implicates the type of controversy submitted to arbitration because, as the Supreme Court has recognized in the past, class arbitration changes the nature of the arbitration to such a degree that parties should not be presumed to have consented to it merely because they agreed to the arbitration provision.

Thus, in the Third Circuit, courts will presume that the availability of classwide arbitration is an issue for the court.  What can overcome the presumption?  Nothing short of “express contractual language unambiguously delegating the question of arbitrability to the arbitrator. . . . Silence or ambiguous contractual language is insufficient to rebut the presumption.”

It remains to be seen whether other circuits will follow suit, or whether this question will ultimately work its way up to the Supreme Court.  In the meantime, would-be class action defendants who wish to avoid being forced into class arbitration by an arbitrator can protect themselves by ensuring that their contracts expressly (i) prohibit class arbitration and (ii) provide that all questions of arbitrability are to be decided by a court of competent jurisdiction.

Posted in Uncategorized

Caveat Empty Box

In a strong defense victory from earlier this year, the U.S. District Court for the Eastern District of California denied a proposed class of laptop purchasers the opportunity to proceed against Toshiba as a class, instead forcing individuals with complaints to engage in arbitration with the manufacturer.  In the decision, Herron v Best Buy Stores LP, Senior Judge Garland Burrell upheld the enforceability of an arbitration provision contained within the box packaging for Toshiba laptops–and only brought to the court’s attention two years after the case was initiated. 

The case, originally filed in state court on behalf of a proposed class of consumers who purchased Toshiba laptops at Best Buy, alleged violations of California’s Consumer Legal Remedies Act and California’s Unfair Competition Law.  The plaintiff claimed that the defendants misrepresented the lifespan of Toshiba laptop batteries, and as a result of these misrepresentations, the plaintiff (and his proposed class) were induced to purchase the laptops for a higher fee.  Importantly, a Limited Warranty was found in the box for each laptop and contained a capitalized and bold-faced arbitration provision.  The provision stated that any disputes between the customer and Toshiba “arising from or relating to” the Limited Warranty or use of the laptop would be resolved “exclusively and finally by binding arbitration.”  The provision continued:  “Customer understands that, in the absence of this provision, customer would have had a right to litigate disputes through a court in front of a judge or jury, including the right to litigation claims on a class-wide or class action basis, and that customer has expressly and knowingly waived those rights and agreed to resolve any disputes through binding arbitration … .”  Moreover, the laptop itself was sealed in a plastic bag, affixed to which was a sticker repeating the arbitration provision language.

The motion to compel arbitration arrived at a unique procedural posture.  The parties initially engaged in motion practice on the merits, which resulted in the filing of three amended complaints following partial grants of motions to dismiss.  Only upon the filing of the Third Amended Complaint – nearly two years after the case was originally filed – did Toshiba file a motion to compel arbitration.  In its motion, Toshiba argued that the plaintiff unequivocally agreed to submit his claims to arbitration, and that any delay in compelling such arbitration was not prejudicial to plaintiff and should therefore not preclude arbitration.  The plaintiff attacked Toshiba’s motion as “forum shopping,” pointing out that the case had been litigated on the merits for two years and that only upon losing on the merits did Toshiba attempt to move the case before an arbitration panel.  The plaintiff argued that the right to arbitrate had been waived and further argued that the arbitration clause in the packaging was provided only after the laptop was purchased; as such, arbitration was not agreed to and was rather only a “proposal for additional terms,” which the plaintiff had not accepted.  Finally, the plaintiff argued that the arbitration clause itself was unconscionable – procedurally, because it was a “form contract” that provided plaintiff only with a “take it or leave it” option, and substantively, because the arbitration clause was unclear as to the range of disputes over which it would govern.

In a concise, strongly-worded opinion, Judge Burrell gave little credence to the plaintiff’s concerns and forced the matter into arbitration.  The court first held that the placement of the arbitration provision in the laptop box – to be found only after its purchase – did not undermine the provision’s enforceability.  The court relied on existing case law that “contracts contained in boxes are no less enforceable than any other type of contract.”  The court also declined to find the arbitration provision unconscionable.  Rather than determining the issue of unconscionability, the court noted that the arbitration provision contained a delegation clause vesting the arbitration panel with the exclusive power to hear challenges to the validity of the agreement – including claims of unconscionability.  Finally, the court refused to find that Toshiba had waived its right to arbitrate the dispute.  Citing the “strong federal policy favoring enforcement of arbitration agreements,” the court dismissed the plaintiff’s concerns that he had already expended considerable resources and time litigating the case in court and his argument that Toshiba was merely seeking “a second bite at the apple” in an alternate forum.  The court summarily called these concerns “conclusory” and noted simply that the plaintiff had not met his high burden to demonstrate prejudice from the delay.  Notably, the court did not specifically address the lapse in time or the motion practice that had been initiated prior to the filing of the motion to compel.

Defendants should take comfort in the Herron ruling.  If there were ever circumstances that would defeat a strongly-worded arbitration provision, the two-year delay and extensive motion practice in this case would surely qualify.  And yet, the court gave these concerns the back of the hand, demonstrating that federal courts still really, really (really) want to find ways for cases to go to arbitration.  The case is continuing against Best Buy.

Posted in Arbitration Issues

Third Circuit Ascertainability Rulings Continue to Imperil Low-End Consumer Class Actions

It’s a pattern repeated in millions of households every day:  you go to the grocery or the drug store, buy the items you need, and don’t bother to keep the receipt.  You may throw the receipt away immediately, you may throw it away after you get home, or you may not even take it from the cashier in the first place.  But if you bought a low-end, everyday consumer item more than a week or two ago, chances are that you no longer have the receipt.

So if the product you purchased ultimately becomes the subject of a class action lawsuit, how are you going to prove your claim?  Typically, purchasers of such small-dollar items are permitted to recover their portion of an award or settlement through an affidavit of purchase, often with a higher recovery to those few class members who can actually provide proof of purchase.

A recent series of opinions from the Third Circuit, however, appears to have put an end to the “affidavit of purchase” method, on grounds that such affidavits are an insufficiently reliable way of ascertaining who is in the class.  Because ascertainability is a threshold issue for class certification, consumer class actions based on typically undocumentable purchases are becoming problematic in the Third Circuit—and may do so elsewhere, if the court’s reasoning persuades other circuits.

Last month, a federal court in New Jersey denied class certification in Stewart v. Beam Global Spirits & Wine, Inc., a case alleging that the producers and sellers of “Skinnygirl Margarita” made false claims about the product.  The court held that the membership of the class of Skinnygirl Margarita purchasers could not be reliably ascertained, as the defendants had no sales records that would identify the retail purchasers of the product and few class members were likely to have retained their receipts.  The problem was exacerbated by the fact that the defendants themselves were not retailers, and thus did not sell directly to the class members.

The named plaintiffs in Stewart proposed that putative class members submit affidavits regarding their class membership.  The court rejected this idea, finding it “unlikely that putative class members will accurately remember every Skinnygirl Margarita purchase they made during the class period, let alone where these purchases were made and the prices they paid each time.”

The court relied on three Third Circuit decisions in 2012 and 2013 (Hayes v. Wal-Mart Stores, Inc.; Marcus v. BMW of North America, LLC; and Carrera v. Bayer Corp.), in which “the Circuit clearly cautioned district courts against approving the use of affidavits to ascertain members of the class.”  The plaintiffs attempted to limit the scope of those cases to situations in which the number of allegedly defective or deceptive products sold could not be verified—unlike Skinnygirl Margaritas, where the volume of sales could be determined from retailer records.  The court rejected this narrow reading of the Third Circuit’s precedent.

The plaintiffs also argued that the Third Circuit had not completely ruled out the use of affidavits as a principal means to identify class members, but had left the door open for affidavits if the plaintiffs proposed a sufficiently reliable process whereby a qualified claims administrator would screen the affidavits for “further indicia of reliability.”  The plaintiffs in Stewart proposed that a claims administrator could screen the Skinnygirl Margarita affidavits by cross-referencing them with currently available records of consumers (including emails sent by consumers to the defendants), social media “likes,” and comments about Skinnygirl Margarita on the defendants’ websites.  As to those affidavits that could not be cross-checked, the plaintiffs proposed using “proven algorithms” to identify fraudulent claims based on data and behavioral patterns tailored to the case; cross-checking prices paid and geographic retail locations against the defendants’ retailer records; and requiring affiants to provide specific information regarding packaging and method of purchase to detect fraud or inaccuracy.

The court was not satisfied, noting the absence of any evidence regarding the percentage of Skinnygirl Margarita purchasers who were likely to either email the defendants or “like” the product on Facebook.  The court reiterated that the Third Circuit cases “make clear that relying on affidavits of putative class members as the primary method of ascertaining the members of the class is not a prudent course of action for a district court and is generally insufficient to meet the requirements of Rule 23.”  The court added that affidavits “amount to nothing more than reliance on the subjective ‘say so’” of the putative class members, leaving defendants “without a suitable and fair method for challenging these individuals’ purported membership in the class. . . .”

Was the Stewart court overly rigid in its interpretation of the Third Circuit’s position on affidavits?  Apparently not.  In dissenting from the Third Circuit’s denial in May of a petition for rehearing en banc in Carrera, Judge Thomas L. Ambro expressed concern that Carrera “gives the impression to many that we now carry [the ascertainability] requirement too far.”  Judge Ambro noted that one California federal court had opined that Carrera “eviscerates low purchase price consumer class actions in the Third Circuit.”

If putative class counsel held out any hope for the continued viability of affidavits to ascertain class membership in the Third Circuit, Stewart appears to have slammed the door shut.  It remains to be seen whether the Third Circuit’s approach gains traction in other circuits, or whether an apparent circuit split eventually works its way to the Supreme Court.

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Posted in Class Certification, Consumer Class Actions, Rule 23 Compliance Issues, Uncategorized

ESOPs’ Fables: On Winning Wars but Losing Battles

As the end of the Supreme Court term approached, decisions came down fast and furious. Last week’s big decisions, at least around our nerdish water cooler, were Halliburton and Fifth Third Bancorp v. Dudenhoeffer. (Yes, we know that there were major rulings on Obamacare, public unions, buffer zones, digital copyright, recess appointments and the groundbreaking cell phone warrant case that my twelve-year old daughter tried to cite until I either astounded or bored her with an explanation of state action and, just in case, issued a warrant for my wife to review the poor girl’s Pinterest account).

Fifth Third is one of those decisions that starts off really poorly (or really well, depending on which side of the “v” you happen to be on), gets worse (or better) for a while, and then suddenly turns about to be pretty good (or pretty bad). That’s probably about the way that James Madison felt when reading Marbury v. Madison.

Fifth Third involves ESOPs (Employee Stock Ownership Plans), creatures of ERISA. ESOPs are tax-deferred retirement plans that are managed by fiduciaries who have all of the same duties as ERISA fiduciaries, save one: they do not have the duty to diversify their portfolios. And that makes sense because the whole purpose of an ESOP is to invest primarily in the company’s own stock.

Of course, bad things happen occasionally, stock prices fall, and employees who were heavily invested in their companies’ ESOPs lose a lot of money. Class actions follow, typically alleging that the plan fiduciaries breached their duties of prudence by not selling the company stock, continuing to buy the company stock, or not disclosing material non-public information to “correct” the company’s stock price. Over the years, in many of the circuits, a presumption arose that ESOP fiduciaries’ decisions to buy or hold company stock were prudent. This presumption became known as the “presumption of prudence.”  The presumption, in most of the circuits, could be rebutted only by a showing that the fiduciary acted while the company was in dire financial condition, bordering on collapse.

Without getting too deeply into the weeds, as a result of the subprime mortgage meltdown, many Fifth Third employees who had invested in the company’s ESOP lost a significant amount of their retirement income when the price of Fifth Third shares declined precipitously. In the complaint, some of those employees on behalf of a purported class alleged that by July 2007, the fiduciaries “knew or should have known that Fifth Third’s stock was overvalued” for two reasons: (i) there was publicly available information with early signs that the subprime lending market was going to blow up and (ii) the fiduciaries had access to nonpublic information (given that they were insiders) indicating that Fifth Third had deceived the market through misrepresentations about the company’s financial prospects. They alleged that a prudent fiduciary would have sold the company stock; stopped buying more; cancelled the ESOP altogether; or disclosed the material nonpublic information that would correct the market.

The district court dismissed the claim, citing the presumption of prudence, but the Sixth Circuit reversed, holding that, while the presumption exists, it is an evidentiary presumption that cannot be relied upon at the pleading stage. The panel found the allegations to be sufficient to state a claim.

It turns out that everyone was wrong about everything.

With one fell swoop, the Supreme Court obliterated the “presumption of prudence,” holding that “the law does not create a special presumption favoring ESOP fiduciaries.” (We note that a similar sentence could have also have been drafted in the Halliburton decision—the last time we checked we did not see a “presumption or reliance” anywhere in the ’34 Act.) The result in Fifth Third must have been fairly surprising to the litigants since, prior to oral argument, the case was really about how and when the presumption should be applied—not whether it existed at all.

The result is a big win for the plaintiffs and a huge loss for the ESOP fiduciaries. But while both the district court and the Circuit were wrong about the presumption of prudence, the Sixth Circuit, according to the Supreme Court, was probably also wrong in holding that the allegations in the complaint were sufficient to withstand a motion to dismiss.

The Court noted that there are other protections for ESOP fiduciaries, namely the new rigors of federal pleading. The Court held that a plaintiff’s allegation that a plan fiduciary should have known that a company’s stock was overvalued because of publicly available information (absent some “special circumstances” not alleged in Fifth Third) fails as a matter of law under TwIqbal. Second, the Court made clear that a plan fiduciary is under no obligation to break the insider trading laws and act based on material nonpublic information—though the Court left open whether a fiduciary could refrain from purchasing additional company stock consistent with the securities laws. Lastly, the Court noted that courts must consider, under TwIqbal, whether allegations that a fiduciary should have acted or refrained from acting in a particular way are actually plausible. A plaintiff must plausibly allege that there was a more prudent course of action that did not involve running afoul of the securities laws and did do more harm than good.

Perhaps the only scenario that would give rise to such “plausible” pleadings is the scenario where a company is on the brink of financial collapse. In other words, it’s possible that not much has actually changed, except that the battle will assuredly be fought at the pleading stage. We will certainly watch and see as “special circumstances” and the tension between the securities laws and an ESOP’s fiduciary duty of prudence get fleshed out over the years.

Posted in Securities Class Actions, Uncategorized
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