Class Action
 Abusive Class Actions
Dukes, et al. v. Wal-Mart Stores, Inc.Nos. 04-16688 and 04-16720 U.S. Court of Appeals for the Ninth Circuit The Ninth Circuit issued a revised decision in this case, excluding women who left the company before the nationwide Title VII gender discrimination case was filed and consequently could not benefit from changes to the company’s pay and promotion rules from the class of 1.5 million plaintiffs, the largest class action in history. Upholding the initial class certification, the court subsequently denied Wal-Mart’s petition for panel rehearing as moot, but allowed the company to file another rehearing en banc petition. Filing in support of the company’s appeal of class certification, NCLC argued that the trial court made serious errors in certifying the case as a class action by permitting the use of statistical evidence of discrimination, ignoring the requirements of proof of individual discrimination, and allowing the plaintiffs to bring their class claim based on a “common” allegation that Wal-Mart decentralized its hiring and promotion practices. NCLC warned that class certifications based on these types of decisions would lead to an avalanche of similarly unmanageable and impossible to defend nationwide class actions. Motion for leave to file and amicus brief in support of interlocutory review filed 7/14/04. Interlocutory granted 8/13/04. Amicus brief on the merits filed 12/8/04. Oral argument held 8/8/05. Decision 2/6/07. Amicus brief in support of petition for rehearing en banc filed 3/1/07. Revised Decision 12/11/07.
Class Certification Involving Overtime Claims in California
Mevorah, et al. v. Wells Fargo Home MortgageNo. 07-80188 U.S. Court of Appeals for the Ninth Circuit NCLC urged the Ninth Circuit to grant immediate review of a class certification of nationwide litigation brought by home mortgage consultants. The plaintiffs in this case alleged claims under the Labor Code and the Unfair Competition Law ("UCL"), based on a violation of the Fair Labor Standards Act (FLSA). By alleging claims as violations of the UCL, plaintiffs are able to circumvent the FLSA two-year statute of limitations and claim a four-year period. Likewise, because the UCL is a California statute, the district court certified a Rule 23 opt-out California class action instead of a FLSA opt-in collective action. In its brief, NCLC argued that the Ninth Circuit must immediately address the district court's holding because lower courts need clarity, and erroneous class certification decisions impose unique and unwarranted burdens on litigants, employers, courts and society. Amicus brief filed 11/13/07.
Availability of Judicial Review of Compensatory Damages Awards
Daniel Measurement Services, Inc. v. Eagle Research Corp.No. 07-384 Supreme Court of the United States
NCLC urged the Supreme Court to consider whether the Due Process Clause requires some minimal judicial review of a compensatory damages award. In this case, the trial court conceded the lack of facts supporting the damages award but indicated that it would not grant summary judgment or judgment notwithstanding the verdict as a matter of course. The West Virginia Supreme Court of Appeals declined review. In its brief, NCLC argued that this lack of judicial review posed an unacceptable risk that the defendant would be deprived of its property without due process of law.
Amicus brief in support of Cert. filed 10/22/07.
Narrow Interpretation of California Labor Code's Administrative Exemption
Harris v. Superior Court (Liberty Mutual Insurance)No. S156555 California Supreme Court NCLC urged the California Supreme Court to review a court of appeal ruling that drastically narrows the administrative exemption under California law, and allows a class action of claims adjusters to move forward with claims for overtime pay. In a dramatic departure from federal law, the California appeal court held that the claims adjusters are primarily production workers and therefore not exempt from overtime requirements. In its letter brief, NCLC argued that allowing the court of appeal decision to stand would substantially disrupt California businesses and invite massive litigation. Amicus letter filed 10/9/07.
 Preclusive Effect of Liability Findings after Class DecertificationR.J. Reynolds Tobacco Co., et al. v. Engle, et al.No. 06-1545 Supreme Court of the United States
The Supreme Court declined to review on the merits a Florida Supreme Court's decision that retained broad findings of liability even though it decertified the class action that produced those findings. This tobacco class action began its travel through the appellate world with a $145 billion punitive damages verdict. The Florida Supreme Court correctly decertified the class because of the need for individualized proof but reinstated much of the judgment for any future lawsuit filed by any individual member of the class. In its brief, NCLC argued that the Florida Supreme Court's so-called "pragmatic solution" departs sharply from traditional norms of fair adjudication, elevates expediency above due process, and places businesses in peril of being coerced into global settlements—even where they have no actual liability.
Amicus brief filed 8/15/07. Decision 10/1/07.
Improper Class Certification Ellis, et al. v. Costco Wholesale Corp.No. 07-15838 U.S. Court of Appeals for the Ninth Circuit
NCLC urged the Ninth Circuit to vacate a district court's order certifying a class of 700 women alleging gender discrimination in promotion and management practices by Costco. In its brief, NCLC argued that the lower court's willingness to certify broad, unmanageable class actions under Rule 23(b)(2) with no regard for Costco's right to present rebuttal testimony would force defendants to settle massive class actions regardless of their merit, and encourage the adoption of quotas that undermine the goals of Title VII.
Amicus brief filed 9/17/07.
Class Certification and Washington's Consumer Protection ActSchnall, et al. v. AT&T Wireless Services, Inc.No. 57523-6 Supreme Court of the State of Washington
NCLC urged the Washington Supreme Court to grant review of, and reverse, the intermediate appellate court's erroneous decision to certify a class under Washington's Consumer Protection Act ("CPA"). The lower court (1) incorrectly held that plaintiffs were not required to prove that each class member relied on the defendant's alleged misstatements about the Universal Connectivity Charge listed on subscribers' monthly statements and (2) affirmed an erroneous decision by the trial court that applied Washington's CPA to the deceptive advertising claims of subscribers, nationwide, even though the vast majority of subscribers received the allegedly deceptive representations, in their home states and had virtually no contacts with Washington.
Amicus brief filed 9/17/07.
Rigorous Analysis of Class Certification Pleading Standards
Grammer v. Sunbeam Products, Inc.
No. 06-1347
Arkansas Court of Appeals
In its brief, NCLC urged an Arkansas intermediate appellate court to reverse the trial court's class certification ruling of a nationwide class challenging the manufacture and sale of electric blankets. In particular, NCLC argued that variations in state law precluded the requisite predominance finding under Arkansas' class action ruling. For a class action to be properly certified, the class members must have the same legal rights across the board. Anything less would deprive the defendant of adequately distinguishing those plaintiffs who are deserving of recovery from those who are not.
Amicus brief filed 2/7/07. Case withdrawn.
 "Single-Filing" Rule and "Equitable Tolling" Doctrines Applied in Decertified Class ActionsRuehl v. Viacom, Inc.
No. 06-1463
U.S. Court of Appeals for the Third Circuit
As urged by NCLC, the Third Circuit reversed a district court's decision applying the "single-filing" rule to permit an individual ADEA plaintiff to "piggyback" onto the EEOC charge of a putative class representative, even after conditionally certified classes have been decertified. Third Circuit held that the underlying facts did not support equitable tolling of plaintiff's charge, which was filed seven years too late. Moreover, the court held that when a class is decertified because the plaintiffs are not "similarly situated," those plaintifffs are in a qualitatively different position that plaintiffs in a certified class, and the single filing rule does not apply.
Amicus brief filed 4/26/06. Oral argument held 12/12/06. Decision 9/7/07.
Certification of Multistate Class
Bryant v. General Motors Corp. No. 07-437 Arkansas Supreme Court
NClC urged the Arkansas Supreme Court to reverse the trial court's certification of a class without conducting a choice-of-analysis and in the face of significant factual variations among the class members' claims. In this case, the putative class representatives argue that GM defrauded purchases of certaiin vehicles when it failed to warn them about a parking brake defect. In its brief, NCLC argued that, had the trial court conducted the proper choice-of-law analysis, it would have found the proposed fifty-state class unmanageable. NCLC also pointed out that there were individualized questions of causation and reliance which undermined any claim that the proposed class satisfied the commonality requirement.
Amicus brief filed 6/25/07.  View brief....................................................................................................................................
Class Certification under Louisiana Law
Robichaux v. Dow, et al.
No. 07-C-567 Louisiana Supreme Court The Louisiana Supreme Court refused to review the intermediate appellate court's improper affirmance of the trial court's order of class certification. In this case plaintiffs challenge the defendants' alleged contamination of drinking water. In affirming, the intermediate appellate court noted that the certification was proper because of "the relative ease" of future modification if circumstances warrant and refused to assess whether plaintiffs could prove their case on a class basis. In its brief, NCLC argued that Louisiana class action law was intended to be consistent with federal law and that the lower court's decision contradicts federal law. In addition, NCLC warned that the lower court's decision may invite the plaintiffs' bar to focus on Louisiana courts as a new locale for their abusive class actions.
Amicus brief filed 3/16/07. Decision 6/25/07. View brief
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Certification of Multistate Class
Ferrell v. Allstate Ins. Co.No. 30, 165 Supreme Court of New Mexico
NCLC urged the New Mexico Supreme Court to affirm the intermediate appellate court's refusal to apply New Mexico law to a class composed of members from thirteen different states and its refusal to otherwise certify a multistate class because of the difficulty in applying the laws of thirteen different states. In its brief, after explaining why the lower court reached the correct conclusions, NCLC contended that New Mexico could be a magnet for more multistate class actions filed by the plaintiffs' bar if it veers from the federal and majority state practice to rigorously analyze all class action requirements. Amicus brief filed 6/18/07. Oral argument held 9/11/07. View brief.................................................................................................................................... Availability of Removal under the Class Action Fairness ActLowery v. Hanna Steel Corp., et al. No. 06-16325-CC United States Court of Appeals for the Eleventh Circuit
NCLC urged the Eleventh Circuit to review en banc a panel decision which improperly required defendants removing under the Class Action Fairness Act to provide clear evidence of federal jurisdiction and prohibited any jurisdictional discovery to determine whether the predicate facts supporting jurisdiction exist. In its brief, NCLC argued that such rules would encourage plaintiffs to avoid clarity in their complaints to avoid removal of their cases to federal court, a result contrary to congressional intent.
Amicus brief in support of rehearing en banc filed 5/9/07. View brief
.................................................................................................................................... Class Certification and Foreign Shareholders
In re Vivendi Universal, S.A. Securities LitigationNo. 07-1463 United States Court of Appeals for the Second Circuit
Urging the Second Circuit to grant review of the district court's certification order, NCLC argues that the issue as to whether foreign shareholders' claims can be certified is an important one which should be resolved without delay. In this case, Vivendi Universal is being sued by a group of domestic and foreign shareholders for securities fraud under U.S. laws. Though it conceded that it could not be sure that any settlement or judgment of this action would be preclusive in the foreign shareholders' home jurisdictions, the district court certified the class which included shareholders from England, France and the Netherlands. In its brief, NCLC argues that there should be a virtual certainty of preclusive effect before a class including foreign members should ever be certified.
Amicus brief filed 4/17/07. Review denied 5/8/07. View brief.................................................................................................................................... Class Actions and Proof of Individualized Reliance
Scott et al., v. American TobaccoNo. 07-C-662 Supreme Court of Louisiana
NCLC urges the Louisiana Supreme Court to grant review of the intermediate appellate court's erroneous decision to permit certification of a class even though plaintiffs had significant individualized issues which could not be resolved by class litigation. The intermediate appellate court dispensed with this commonality requirement by finding that the remedy sought was for a common fund. In its brief, NClC makes clear that a common fund remedy does not abrogate the commonality requirement in federal or Louisiana courts. In addition, NClC explains that loosening class certification rules in Louisiana would serve as a magnet for the plaintiffs' bar to overburden Louisiana courts with abusive class actions.
Amicus brief filed 4/2/07. View brief
.................................................................................................................................... Abusive Class Actions
Dukes, et. al. v. Wal-Mart Stores, Inc.Nos. 04-16688 and 04-16720 U.S. Court of Appeals for the Ninth Circuit NCLC urged the Ninth Circuit to rehear its decision upholding the certification of a nationwide class of 1.5 million women in a gender discrimination case under Title VII, the largest class action in history. NCLC argued that the panel made serious errors in certifying the case as a class action by permitting the use of statistical evidence of discrimination, ignoring the requirements of proof of individual discrimination, and allowing the plaintiffs to bring their class claim based on a "common" allegation that Wal-Mart decentralized its hiring and promotion practices. If allowed to stand, the ruling endorses a procedure that permits plaintiffs to offer a prima facie case based on statistical evidence, and then move straight to a determination of remedies, skipping entirely the defendant's right to present any evidence in its defense. Motion for leave to file and amicus brief in support of interlocutory review filed 7/14/04. Interlocutory granted 8/13/04. Amicus brief on the merits filed 12/8/04. Oral argument held 8/8/05. Decision 2/6/07. Amicus brief in support of petition for rehearing en banc filed 3/1/07. View brief for rehearing en banc.................................................................................................................................... Scope of the EEOC's Subpoena Power
Equal Employment Opportunity Commission v. Federal Express Corporation No. 06-16864 U.S. Court of Appeals for the Ninth Circuit NCLC urged the Ninth Circuit to overturn a district court decision enforcing an EEOC subpoena, which seeks detailed information on all computerized files maintained by Federal Express containing data on any personnel activity (including information on applicants, hiring, promotions, testing, discipline, evaluations, demotions, employment history, pay, work assignments, training, transfers, terminations, etc.) in a case where the charging party already received his Right to Sue notice and joined a private class action lawsuit. NCLC argued that the EEOC's authority to further investigate the charge at issue was foreclosed when the charging party intervened in a private class action lawsuit advancing the same claims raised in his charge. To hold otherwise will unnecessarily burden employers with having to defend a claim in more than one forum simultaneously. Amicus brief filed 1/29/07. View brief.................................................................................................................................... Class Action Certification in California Wage and Hour Case
Sepulveda v. Wal-Mart Stores, Inc. No. 06-56090 U.S. Court of Appeals for the Ninth Circuit
NCLC urged the Ninth Circuit to affirm a district court decision denying class certification in a wage and hour class action involving a proposed class of assistant managers employed by Wal-Mart alleging overtime under California law. In its brief, NCLC argued that class certification under the federal rules of civil procedure is appropriate only if the predominant form of relief sought by the class is injunctive or declaratory. Here, the highly individualized proof that would be required to make out the assistant managers' claims for monetary relief establishes that those claims predominate over their claims for injunctive relief. Moreover, the relief sought by the managers was predominately monetary since more than half of the putative class members were no longer employed at Wal-Mart, and thus could not benefit from injunctive relief from the court.
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Rigorous Analysis of Class Certification Pleading Standards
Grammer v. Sunbeam Products, Inc.
No. [No docket number yet]
Arkansas Court of Appeals
In its brief, NCLC urged an Arkansas intermediate appellate court to reverse the trial court's class certification ruling of a nationwide class challenging the manufacture and sale of electric blankets. In particular, NCLC argued that variations in state law precluded the requisite predominance finding under Arkansas's class action ruling. For a class action to be properly certified, the class members must have the same legal rights across the board. Anything less would deprive the defendant of adequately distinguishing those plaintiffs who are deserving of recovery from those who are not.
.................................................................................................................................... Class Actions and RICOSchwab v. Philip Morris, et al.No. 06-4666 United States Court of Appeals for the Second Circuit
NCLC urged the Second Circuit to vacate the trial court's grant of class certification to plaintiffs charging via the Racketeering Influenced Corrupt Organizations Act (RICO) that, while each "Lights" cigarette contained less nicotine and tar than non-Lights cigarettes, the product did not deliver less tar and nicotine to users because users compensated by smoking additional cigarettes. In its brief, NCLC argued that the district court did not apply the rigorous analysis required by Federal Rule of Civil Procedure 23(b)(3). In addition, NCLC explained that affirming the district court's decision could expand civil RICO liability well beyond its intended purpose to address the effect of illicit activities on legitimate businesses.
Amicus brief filed 12/26/06. Oral argument held 7/10/07.
View brief....................................................................................................................................
Class Actions and Indirect Purchaser Claims under New York Law
Sperry v. Crompton Corp., et al.
No. 2004-06517
New York Court of Appeals
NCLC urges the New York Court of Appeals to leave in place the New York legislature's determination that indirect purchasers advancing an antitrust claim should not be permitted to do so via the class action vehicle. In its brief, NCLC explains that indirect purchaser class action claims are unworkable, that even meritless class actions place a special burden on defendants and that there are other methods of ensuring that companies who violate the antitrust laws are held culpable for their behavior. In addition, NCLC noted that the plaintiff attempted to make an end run around the class action bar by filing an unjust enrichment claim and that the Court of Appeals should reject that effort.
Amicus brief filed 12/1/06. Decision 2/22/07.
View brief....................................................................................................................................
Abusive Class Actions
Engle v. Liggett Group, Inc., et al.No. SC03-1856 Supreme Court of Florida On August 14, 2006, NCLC filed an amicus brief supporting a petition for rehearing in Engle v. Liggett Group Inc., et al., -- a punitive damages class action against the tobacco manufactures on behalf of 700,000 Floridians -- arguing the Florida Supreme Court erred in permitting some of the jury's findings to stand while decertifying the class action as to causation and damages issues. In its brief, NCLC argues that such bifurcation violates the Florida rules governing class actions and the United States Constitution's Due Process Clause. Amicus brief in support of respondents filed 7/23/04. Oral argument held 11/3/04. Decision 7/06/06. Amicus brief on the merits filed 8/14/06. Decision 12/21/06.
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Arbitration Provisions and Class Action WaiversTillman v. Commercial Credit Loans, Inc.No. 360A06 North Carolina Supreme Court
Recommending that the decision of the intermediate appellate court be affirmed, NCLC filed a brief arguing that contracts containing arbitration provisions with class action waivers are not unconscionable under North Carolina law. In this case, though barred by their financing contracts from doing so, plaintiffs filed a putative class action complaint against their mortgagors. Relying on explicit contractual language and rejecting the notion that an arbitration requirement with a class action waiver is unconscionable, the court below dismissed the case and ordered arbitration. In addition to making clear the comparative benefits of arbitration to plaintiffs and defendants, NCLC also argued that upsetting the parties' bargain impermissibly conflicts with the Federal Arbitration Act and therefore is preempted.
Amicus brief filed 11/16/06.
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Proper Standards for Certifying Class Actions
Henry, et al. v. The Dow Chemical Co., et al.
No. 266433
State of Michigan Court of Appeals
NCLC argues that inconsistent and lax certification standards encourage class action abuse and urges Michigan courts to look to the federal courts for guidance by conducting a "rigorous analysis" of the class action requirements before certifying a class.
Motion for leave to file and amicus brief filed 4/24/06.
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NCLC Supports Denial of Nationwide Class Certification in Two USDA Cases
Love v. Veneman
No. 04-5449
Garcia v. Veneman
Nos. 04-5448 and 05-5002
U. S. Court of Appeals for the District of Columbia Circuit
In two companion cases in which the US Department of Agriculture is the defendant, NCLC urges the federal court of appeals for the District of Columbia to affirm the district court's decision denying nationwide class certification. Both cases involve claims that the USDA has unlawfully discriminated against females and Hispanics across the nation in its administration of farm loans programs (and, in one case, disaster benefits). Among other things, NCLC points out that class certification is plainly inappropriate where, as here, the decision-making process is decentralized and the decisionmakers are geographically dispersed and making independent selection decisions.
Amicus briefs filed 10/28/2005. Oral argument to be held 2/06/06. Decision 3/3/06.
 View Garcia Brief View Love Brief
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Certification of Class Action under Title VII
Reeb, et al. v. Ohio Department of Rehabilitation & Correction
No. 04-3994
U.S. Court of Appeals for the Sixth Circuit
Agreeing with NCLC, the Sixth Circuit reversed the lower court's certification of a class of female state prison employees who alleged sex discrimination in violation of Title VII. This is the second time the Sixth Circuit has vacated and remanded this case. The circuit court found that, upon second review the district court did not attempt to obtain any additional information or evidence before re-certifying the plaintiff class and failed to conduct a "rigorous analysis" as required under Rule 23(a). The Sixth Circuit found also held that Title VII cases in which plaintiffs seek individual compensatory damages are not appropriately brought as class actions under Rule 23(b)(2) because such individual claims for money damages will always predominate over requested injunctive declaratory relief.
Amicus brief in support of defendant-appellant and in support of reversal filed 10/19/04. Decision 1/24/06.
View brief
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 Class Actions and the Predominance Requirement
Price, et al. v. Philip Morris Incorporated
No. 96236 Illinois Supreme Court
Reversing the lower courts' finding that Philip Morris had misadvertised its "lights" cigarettes as being more safe, the Illinois Supreme Court vacated the $10 billion dollar judgment because the Federal Trade Commission, by way of agreement with Philip Morris, had authorized the advertising at issue. NCLC had argued that the trial court, in certifying a mammoth class action of approximately 1.14 million members without regard to whether the individual class members were personally deceived, not only ignored the requirement of Illinois' class action statute that common issues must predominate for a class to be certified, but also the decisions of courts throughout the country which have overwhelmingly held that the predominance of individual issues renders class certification inappropriate when the plaintiff alleges a misrepresentation of the safety of cigarettes.
Amicus brief in support of the defendant-appellant filed 12/3/03. Decision 12/15/05.
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Class Action Forum Shopping
State Farm Mutual Automobile Insurance Company v. Gridley
No. 94144
Supreme Court of Illinois
Agreeing with NCLC, the Illinois Supreme Court overruled the trial court's decision to allow a nationwide class action – filed by a Louisiana plaintiff and arising out of a Louisiana cause of action, involving Louisiana witnesses and documents as well an interpretation of Louisiana law – to be brought in Madison County, Illinois. Applying the doctrine of forum non conveniens, the Court found no evidence that Madison County was the more convenient forum. In its brief, NCLC had explained that Madison County is the more convenient forum for the plaintiff's bar only and this class action complaint underscored the realities of forum shopping in a county that now has the highest per capita class action filing rate in the nation.
Amicus brief filed 11/06/02. Oral argument held 1/22/03. Decision 11/17/05.
View Brief
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Class Certification and the Right to a Jury Trial
Moore v. Liberty National
No.14500-B
U.S. Court of Appeals for the Eleventh Circuit
Concerned about the district court's end-run around the procedural requirements of the Federal Rules of Civil Procedure, the NCLC requested the 11th Circuit to grant a writ of mandamus and order the district court to safeguard the defendant's Seventh Amendment right to a jury trial and to comply with the requirement that class actions certified under Rule 23(b)(2) be restricted to injunctive relief only. The Eleventh Circuit denied the petition for writ of mandamus.
Amicus brief filed 8/25/05. Decision 9/8/05.
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 Class Action Abuse
State Farm Mutual Automobile Insurance Company v. Avery, et al.
No. 91494
Supreme Court of Illinois
The Illinois Supreme Court overturned an unprecedented trial court decision to grant class action status to a lawsuit involving nearly five million plaintiffs in forty-eight states. NCLC argued that the state trial court's expansive class action ruling - which resulted in a billion dollar judgment - was based on a number of improper practices, including ex parte certification of a nationwide class and application of the state's consumer fraud statute on a nationwide basis. NCLC warned that Illinois' failure to properly enforce class action requirements has turned certain plaintiff-friendly counties in the state into meccas for filing nationwide class actions.
Amicus brief filed 11/06/02. Decision 8/18/05.
View Brief
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Abusive Class Actions
Dukes, et al. v. Wal-Mart Stores, Inc.
Nos. 04-16688 and 04-16720
U.S. Court of Appeals for the Ninth Circuit
The Ninth Circuit in this case granted review of Wal-Mart's challenge of the certification of a nationwide class of 1.5 million women in a gender discrimination case under Title VII, the largest class action in history. Filing in support of Wal-Mart's efforts to de-certify the class, NCLC argues that the trial court made serious errors in certifying the case as a class action by permitting the use of statistical evidence of discrimination, ignoring the requirements of proof of individual discrimination, and allowing the plaintiffs to bring their class claim based on a "common" allegation that Wal-Mart decentralized its hiring and promotion practices. NCLC warns that class certifications based on these types of decisions would lead to an avalanche of similarly unmanageable and impossible to defend nationwide class actions.
Motion for leave to file and amicus brief in support of interlocutory review filed 7/14/04. Interlocutory granted 8/13/04. Amicus brief on the merits filed 12/8/04. Oral argument held 8/8/05. Decision 2/6/07.
View brief
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Finality of Settlements of Class Actions
In re AOL Spin-Off Accounts Litigation
No. 05-55714
U.S. Court of Appeals for the Ninth Circuit
NCLC urges the Ninth Circuit to vacate the federal district court's issuance of an injunction, which enjoined the settlement of parallel litigation in Illinois state court because it ostensibly interfered with the district court's jurisdiction over similar matters. The traditional rule is that the first case to judgment has preclusive effect and nothing in this case merits variance from that rule.
Amicus brief filed 6/17/05.
View brief
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Abuse of Consolidated Claim Procedures
Flexible Products Company, et al. v. Micon, Inc., et al.
No. 1040450
Supreme Court of Alabama
Rejecting NCLC's recommendation that it restrain the "mass action" phenomenon and relying on the deferential standard governing mandamus review of trial court orders, the Supreme Court of Alabama instead affirmed the trial court's entry of a case management order, which consolidated over sixteen hundred separate cases. Nevertheless, the Supreme Court reminded the trial court that, going forward, it "must be cognizant of the considerations that are necessary to avoid prejudice to all of the parties."
Amicus brief in support of Joint Petition for Writ of Mandamus filed 12/29/04. Notice of Supplemental Authority filed 2/16/05. Decision 6/3/05.
View brief
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Fraudulent Joinder
Smallwood v. Illinois Central Railroad Company and Mississippi Department of Transportation
No. 02-60782
U. S. Court of Appeals for the Fifth Circuit
NCLC urged the Supreme Court to reverse the Fifth Circuit decision that removal jurisdiction cannot be based on an affirmative defense of federal preemption and that cases cannot be removed based on an affirmative defense common to all defendants. The plaintiff originally filed this railroad crossing accident case in Mississippi state court against the Illinois Central Railroad and the Mississippi Department of Transportation. The Illinois Central railroad successfully removed the case to federal district court, arguing that the plaintiff had fraudulently joined the Mississippi Department of Transportation for the sole purpose of defeating diversity jurisdiction. The district court ultimately granted summary judgment to the railroad on the basis that federal law preempted the action. A panel of the Fifth Circuit reversed and remanded to state court, and the en banc court upheld this decision.
Amicus brief in support of petition for a writ of certiorari filed 1/04/05. Cert. denied 04/18/05.
View brief
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Abusive Class Action
Dukes, et al. v. Wal-Mart Stores, Inc.
Nos. 04-16688 and 04-16720
U. S. Court of Appeals for the Ninth Circuit
The Ninth Circuit in this case granted review of Wal-Mart's challenge of the certification of a nationwide class of 1.5 million women in a gender discrimination case under Title VII, the largest class action in history. Filing in support of Wal-Mart's efforts to de-certify the class, NCLC argues that the trial court made serious errors in certifying the case as a class action by permitting the use of statistical evidence of discrimination; ignoring the requirements of proof of individual discrimination; and allowing the plaintiffs to bring a their class claim based on a "common" allegation that Wal-Mart decentralized its hiring and promotion practices. NCLC warns that class certifications based on these types of decisions would lead to an avalanche of similarly unmanageable and impossible to defend nationwide class actions.
Motion for leave to file and amicus brief in support of interlocutory review filed 7/14/04. Interlocutory granted 8/13/04. Amicus brief on the merits filed 12/8/04.
View brief
Abusive Class Actions
Engle, et al. v. Liggett Group Inc., et al.
No. SC03-1856
Supreme Court of Florida
This case was originally filed in 1994 and was certified as a class of Florida-only residents. It resulted in July 2000 in a punitive damages verdict of $145 billion. A three-judge panel of Florida's Third District Court of Appeal set aside the verdict because, among other reasons, the class failed to meet virtually every legal requirement for class certification. On appeal to the Florida Supreme Court, NCLC as amicus argued that personal injury cases are unsuited for adjudication because they necessarily involve individual factual inquiries, are substantial enough to be brought individually, and force defendants into exorbitant settlements. For similar reasons, NCLC argued that fraud cases are unsuited for class treatment, and finally, that class certification is inappropriate where the court must apply numerous states' laws.
Amicus brief in support of Respondents filed 7/23/04. Oral argument held 11/3/04.
View brief
Abusive Class Actions
Dukes, et al. v. Wal-Mart Stores, Inc.
No. 04-80057
U. S. Court of Appeals for the Ninth Circuit
NCLC urged the 9th Circuit to review and reverse the district court's decision to certify a class action of as many of 1.6 million current and former female Wal-Mart employees - the largest class action in U. S. history - on the grounds that class actions of this magnitude create unfair pressure to settle and expose employers to enormous judgments while depriving them of the fundamental right to present key rebuttal evidence.
Motion for leave to file and amicus brief filed 7/14/04. Motion for leave to file and Petition for Interlocutory Review granted 8/13/04.
View brief
Mold Liability Class Action
Archstone-Smith Operating Trust, et al. v. Henriques, et al.
No. 3D03-403
District Court of Appeal of Florida, Third District
NCLC challenged the country's first class action certification of a single building/multiple occupant mold-exposure liability case on the grounds the nature of the mold-exposure claims in general and characteristics of mold in particular where individual issues invariably predominate over any potential common issue make these kinds of cases particularly unsuitable for class treatment.
Motion for leave to file filed 3/6/03. Motion for leave to file granted 3/11/03. Amicus brief filed 5/27/03. Case settled.
Antitrust Class Action
Gilchrist v. State Farm Mutual Automobile Insurance Company
No. 03-10799-HH
U. S. Court of Appeals for the Eleventh Circuit
In the course of considering whether a class action was properly settled, the Eleventh Circuit became concerned about whether the plaintiffs' claims were barred by the McCarran-Ferguson Act, which creates an exemption from the antitrust laws for the business of insurance. The appellate court decided that the plaintiffs' claims fell within the scope of the exemption and ordered the district court to dismiss the case. Although the court did not reach the class certification issues raised by NCLC - which argued that the standard adopted by the district court results in erroneous certifications, which in turn compels defendants to settle even meritorious cases - the dismissal is nevertheless a victory for the defendants and a loss for the class action lawyers on the plaintiffs' side.
Amicus brief in support of Petition to Appeal Class Certification filed 12/13/02. Motion to file amicus brief granted 1/2/03. Interlocutory appeal of the class action order granted 2/18/03. Amicus brief filed 7/17/03. Order to district court to dismiss case issued 11/18/04.
Antitrust Class Action Gilchrist v. State Farm Mutual Automobile Insurance Company
U. S. Court of Appeals for the Eleventh Circuit
The Eleventh Circuit granted interlocutory appeal of the district court's class certification order in this antitrust case involving 70 million policyholders seeking more than $20 billion in treble damages. NCLC urged appellate court review on the grounds that the standard adopted by the district court results in erroneous certifications, which in turn compels defendants to settle even meritorious cases.
Amicus brief in support of Petition to Appeal Class Certification filed 12/13/02. Motion to file amicus brief granted 1/2/03. Interlocutory appeal of the class action order granted 2/18/03.
Abusive Class Action
American Home Shield of Texas, Inc., et al. v. Kortz
No. 01-99-00380-CV
Supreme Court of Texas
NCLC argued that the trial judge erred in certifying a class of almost 250,000 plaintiffs alleging violations of the Texas Deceptive Practices Trade Act where none of the class members provided allegations or evidence of ripeness, reliance, causation or actual damages.
Amicus brief filed in support of petition for review filed 4/16/01. Case removed from the Court's active docket to allow the parties to proceed with settlement negotiations 10/8/01. Final fairness hearing of proposed settlement scheduled for 8/19/02. Joint motion to dismiss filed 9/25/02. Joint motion to grant petition for review and dismiss as moot granted 1/30/03.
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Class Action Forum Shopping
State Farm Mutual Automobile Insurance Company v. Gridley
No. 94144
Supreme Court of Illinois
NCLC argues that the trial court's decision to allow nationwide class action - filed by a Louisiana plaintiff and arising out of a Louisiana cause of action, involving Louisiana witnesses and documents as well an interpretation of Louisiana law - to be brought in Madison County, Illinois underscores the realities of forum shopping in a county that now has the highest per capita class action filing rate in the nation.
Amicus brief filed 11/06/02. Oral argument held 1/22/03.
Abusive Class Actions for Hypothetical Defects
Crawley v. DaimlerChrysler Corporation
Nos. 1741 EDA 2000, 1767 EDA 2000
Superior Court of Pennsylvania
NCLC argues that this case - which allowed uninjured plaintiffs to sue for hypothetical product defects - should never have been certified as a class action.
Amicus brief filed 6/22/01.
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