Class Action Defense Blog

Discovery Sanctions Imposed in Securities Fraud Class Action After Parties Entered into Class Action Settlement and Informed District Court that Sanctions should not be Imposed must be Vacated because Parties may "Bargain Away the Right to Receive Compensatory Sanctions" Fifth Circuit Holds

Various individual and class action lawsuits alleging were filed against former outside directors of Enron following its collapse; some of those individual and class actions, alleging securities fraud violations, were consolidated in the Southern District of Texas. Fleming & Associates v. Newby & Tittle., 529 F.3d 631, 635 (5th Cir. 2008). The coordinated, consolidated class action plaintiffs were represented by Fleming & Associates L.L.P. Id. During the course of the litigation, a discovery battle emerged concerning one of plaintiffs’ expert witnesses, Curtis Verschoor, who had prepared a 165-page report that plaintiffs filed timely pursuant to the court’s discovery order; the report, however, was amended the day before the expert’s deposition raising objections both as to its timeliness and plaintiffs’ failure to post notice of the new report. Id., Verschoor’s deposition testimony concerning the report, whether it had been amended, who made the amendments and the nature of the amendments proved to be inconsistent with the document itself. Id., at 635-36. Ultimately, the court sanctioned plaintiffs’ counsel but denied a defense request to exclude the expert’s testimony because it concluded that the changes to the report were not material, id., at 636. Plaintiffs’ counsel sought reconsideration of the order and opposed defendants’ fee request, but the parties settled the litigation before the sanctions issue had been resolved. Id. Defendants notified the court that they were no longer entitled to sanctions against plaintiffs’ counsel because of the class action settlement reached by the parties, id., at 636 n.1. Nonetheless, the court considered the application and awarded defendants $15,000 in attorney fees and costs, id. On appeal, the Fifth Circuit affirmed the initial order awarding sanctions, but vacated the order requiring plaintiffs’ counsel to pay $15,000 on the ground that the class action settlement rendered the application moot.

While plaintiffs raised two arguments on appeal, the Fifth Circuit considered only the claim that sanctions were moot because the class action settlement “stripped the district court of jurisdiction to impose compensatory sanctions, requiring mandatory vacatur.” Fleming, at 637. Plaintiffs argued that the sanctions order was not final and appealable because the magistrate had not yet determined the amount of sanctions, id. The Fifth Circuit recognized that, under its opinion in Williams v. Ezell, 531 F.2d 1261 (5th Cir.1976), a court order granting a party attorney fees is not a final order if the court defers the question of the amount of the fees. Id. As the Circuit Court explained at page 637, “ If the instant case was moot before the district court's final judgment on the sanctions order, that final order is subject to mandatory vacatur.” (Citation omitted.) On the other hand, the Fifth Circuit recognized that a district court has the power to imposed sanctions “designed to enforce its own rules, even after that court no longer has jurisdiction over the substance of a case,” because the purpose of such an award is not to reimburse a party for its fees or costs but, rather, “‘to punish a party who has already violated the court’s rules.’” Id., at 637-38 (citation omitted).

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Posted In: Class Action Court Decisions

Class Action Claims Preempted by SLUSA (Securities Litigation Uniform Standards Act of 1998) because Ten Class Actions had been Litigated as a Single Proceeding by Plaintiffs’ Common Counsel Fifth Circuit Holds

Numerous class action complaints were filed against various defendants following the collapse of Enron; ten of those class action complaints, which filed by former Enron investors against various financial institutions, certain former members of Enron’s management, and Arthur Anderson (Enron’s former accounting firm) and certain Arthur Anderson partners, but not against Enron itself, were consolidated into the action now at issue. In re Enron Corp. Securities, Derivative & ERISA Litig., ___ F.3d ___, 2008 WL 2689248, *1 (5th Cir. 2008). Most of the class actions had been filed in state court, but they were removed to federal court based on Enron’s bankruptcy filing on the ground that they were “‘related to’ bankruptcy jurisdiction,” and the class actions were later consolidated in the Southern District of Texas by order of the Judicial Panel on Multidistrict Litigation. Id., at *3. The class actions “allege virtually identical state law claims for fraud, fraud on the market, civil conspiracy, aiding and abetting, negligent misrepresentation, negligence, violations of the Texas Business and Commerce Code, and violations of the Texas Securities Act.” Id. Defense attorneys moved to dismiss the class action complaints as preempted by SLUSA (Securities Litigation Uniform Standards Act of 1998). Id., at *1. The district court granted the defense motion and dismissed all of the class action claims, id., at *3. In dismissing the class actions, the district court denied class action plaintiffs leave to amend because it found that amendment would be futile. Id. Plaintiffs appealed, arguing that the district court lacked jurisdiction to enter the order dismissing the class action complaints and, alternatively, that the class actions that had been removed to federal court were not “covered class actions” within the meaning of SLUSA; the Fifth Circuit affirmed.

We do not summarize the facts surrounding the rise and fall of Enron. See In re Enron, at *2 and Newby v. Enron Corp., 394 F.3d 296, 299 (5th Cir. 2004). The issues on appeal were (1) whether the district court had jurisdiction over the class actions, and (2) whether the class action claims were preempted by SLUSA. In re Enron, at *3. We do not here discuss the bankruptcy jurisdiction issue; the Fifth Circuit’s analysis, leading to its conclusion that bankruptcy jurisdiction did exist, may be found at pages *3 through *6 of the Circuit Court’s opinion. With respect to the SLUSA preemption issue, plaintiffs’ argued that “for preemption purposes, SLUSA's definition of a ‘covered class action’ should be applied only at the time a state action is removed to federal court, not after a federal court issues a consolidation order.” Id., at *6. As a backdrop to is legal analysis, the Circuit Court provided a summary of the “evolution of federal securities law,” including the Private Securities Litigation Reform Act (PSLRA). See id., at *7-*8. This summary including the language in SLUSA that “[n]o covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party,” see id., at *8 (citation omitted) (italics added by court). The central issue was whether the class actions were “covered class actions” within the meaning of SLUSA.

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Posted In: Class Action Court Decisions, PSLRA/SLUSA Class Actions

Class Action Claims Against Tri-Union Seafoods (dba Chicken of the Sea) not Preempted by FDA Regulations or Opinions Expressed by FDA Commissioner in Letter to State Attorney General Third Circuit Holds

Plaintiff filed a class action lawsuit in New Jersey state court against Tri-Union Seafoods, doing business as Chicken of the Sea, “seeking damages for harm she allegedly sustained as a result of her consumption of methylmercury and other harmful compounds contained in Tri-Union’s tuna fish products.” Fellner v. Tri-Union Seafoods, LLC, ___ F.3d ___ (3rd Cir. August 19, 2008) [Slip Opn, at 3]. Specifically, the class action complaint alleged that defendant’s tuna products contained chemicals that could cause mercury poisoning and that plaintiff suffered mercury poisoning from consuming defendant’s tuna, and alleged negligence and violations of New Jersey’s Products Liability Act based on defendant’s alleged “failure to warn of the risks incurred in consuming its products.” Id., at 3-4. Defense attorneys removed the class action to federal court and then filed a motion to dismiss the class action complaint on the ground that the regulatory actions of the Food and Drug Administration preempt the class action’s claims. Id., at 3. In part, the defense relied on a letter sent by the FDA Commissioner to California’s Attorney General in connection with a 2004 “Proposition 65” lawsuit (see Cal. Health & Safety Code § 25249.6) that the State of California brought against Tri-Union and other defendants and that sought an injunction and civil penalties based on for defendants’ “failure to warn consumers that their tuna products contain dangerous mercury compounds.” Id., at 4. The Commissioner’s letter opinion that the State’s lawsuit was preempted by prior regulatory actions taken by the FDA. Id. The letter stated in part that the State’s lawsuit would “frustrate the [FDA’s] carefully considered federal approach” to the issue of mercury in fish. Id., at 5 (citing People v. Tri-Union Seafoods, 2006 WL 1544377 (Cal. Super. Ct. May 12, 2006)). The California court ultimately ruled that the State’s lawsuit was preempted. Id., at 5. (citation omitted). The New Jersey district court granted defendant’s motion to dismiss the class action, also ruling that the class action claims “are preempted by the FDA’s ‘regulatory approach’ to the risks posed by mercury compounds in tuna fish.” Id., at 3. The Third Circuit reversed.

The Circuit Court explained that “[t]he sole question presented in this appeal is whether [plaintiff’s] state claim for damages is preempted by federal law.” Fellner, at 6. In support of the district court’s ruling, defense attorneys advanced three preemption arguments: “(1) that the FDA has adopted a ‘pervasive regulatory approach’ – embodied in the FDA’s Advisory, backgrounder and internal enforcement guideline – with which Fellner’s state lawsuit actually conflicts; (2) that the FDA has ‘reject[ed] the use of warning labels’ in favor of a more ‘nuanced’ approach – that is, that the FDA has reached a decision that warnings should not be regulated, a decision which preempts the state from entertaining a claim based on a duty to warn theory; and (3) that the FDA would have rejected any warning as ‘misbranding,’ a determination which preempts Fellner’s failure-to-warn claim.” Id., at 6-7. After reviewing the doctrine of federal preemption, the Third Circuit explained that defendant does not assert either express preemption or field preemption, and that “[i]f preemption exists in this case it must be conflict preemption. Id., at 8-9. This issue, as in all preemption cases, turns on Congressional intent, id., at 9 (citation omitted).

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Posted In: Class Action Court Decisions

As a resource to California class action defense attorneys, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. We include only those categories that include 10% or more of the class action filings during the preceding week. This report covers August 15 - 21, 2008, during which time 36 new class action lawsuits were filed. Labor law class action lawsuits generally top the list of new class action filings in California state and federal courts. During this reporting period, 18 of the new class action lawsuits (50%) asserted employment-related claims. The only other categories that satisfied the 10% threshold involved class action lawsuits alleging unfair business practice claims, which include false advertising claims, with 8 new filings (22%), and class action lawsuits alleging securities-related claims, with 4 new filings (11%).

Posted In: Class Actions In The News

Judicial Panel Grants Plaintiffs’ Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Over Objection of Responding Class Action Defendants, but Rejects All Recommended Transferee Courts and Transfers Class Actions to Western District of Kentucky

Three class actions – one each in California, Illinois and Massachusetts – were filed against various defendants, including Countrywide Financial Corp., Countrywide Home Loans and Countrywide Bank, FSB (collectively “Countrywide”); the class action complaints, each purportedly seeking to represent a nationwide class, alleged that Countrywide “engaged in discriminatory residential lending practices, including the imposition of discretionary fees/charges, which increased the cost of financing and resulted in higher loans for minority borrowers than similarly situated non-minority borrowers.” In re Countrywide Financial Corp. Mortgage Lending Practices Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. August 7, 2008) [Slip Opn., at 1]. Plaintiffs in the Massachusetts class action filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the District of Massachusetts; plaintiffs in the other class actions supported the motion, but each argued for transfer of the class actions to the districts in which their own class action was pending. Id. Defense attorneys for Countrywide opposed pretrial coordination of the class actions, but alternatively argued for centralization in California. Id. The Judicial Panel granted the motion to centralize the class action lawsuits, noting that the class action complaints involve “common questions of fact” and concluding that centralization “will eliminate duplicative discovery; avoid inconsistent pretrial rulings, especially on the issue of class certification; and conserve the resources of the parties, their counsel and the judiciary.” However, the Panel decided to transfer the class actions to the Western District of Kentucky. Id., at 1-2.

NOTE: This opinion highlights the risk parties run in requesting pretrial coordination from the MDL Judicial Panel; the Panel has the discretion to select any district it chooses, including a district that has not been recommended by any of the parties to the litigation.

Posted In: Multidistrict Litigation, Class Action Court Decisions

District Court Carefully Analyzed Requisite Factors in Determining Reasonable Attorney Fee Award in Securities Class Action and did not Abuse its Discretion in Awarding Class Counsel 3% of the Value of Class Action Settlement Rather than 8.5% Requested by Class Counsel, even though Lead Plaintiffs in Class Action Supported 8.5% Award Second Circuit Holds

Plaintiffs filed a class action against Nortel Networks alleging violations of federal securities laws (Nortel I); specifically, the Nortel I class action complaint alleged that Nortel “knowingly and recklessly issued false and misleading statements and engaged in various accounting manipulations causing its stock price to be inflated between October 24, 2000 and February 15, 2001.” In re Nortel Networks Corp. Securities Litig., ___ F.3d ___ (2d Cir. August 19, 2008) [Slip Opn., at 2]. Plaintiffs in the Nortel I class action were represented by Milberg Weiss & Bershad LLP, id. After several years of litigation, the district court approved a class action settlement of almost $439 million in cash, plus more than 300,000,000 shares of Nortel common stock valued at more than $700 million at the time the class action settled was approved. Id. As part of the “same overall settlement,” Nortel settled a separate action securities class action lawsuit (Nortel II); the terms of that class action settlement involved common stock also valued at more than $700 million plus $370 million in cash (roughly $68.5 million less than the Nortel I class action settlement). Id., at 2-3. The district court in Nortel II awarded class counsel 8% of the settlement value in attorney fees, but the Nortel I court awarded Milberg attorney fees amounting to only 3% of the settlement value. Id., at 3. Milberg Weiss appealed the attorney fee award, and the Second Circuit affirmed.

Milberg argued on appeal that they were entitled to 8.5% of the value of the class action settlement they obtained in prosecuting the private securities class action and that the district court erred in reducing the award to only 3%. In re Nortel, at 2. Milberg argued that it had a “negotiated fee” which, under the terms of the Private Securities Litigation Reform Act of 1995 (PSLRA), should have been deemed “presumptively reasonable.” Id. The Second Circuit held that Milberg waived its PSLRA argument because it failed to raise it in the district court, id. The Circuit Court’s analysis of the waiver issue may be found at pages 5 through 8.

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Posted In: Class Action Court Decisions, PSLRA/SLUSA Class Actions

Defense (Bank of America, Citigroup and Pavia e Ansaldo) Entitled to Summary Judgment on Securities Fraud Claims because Plaintiffs Failed to Establish Reliance on any Deceptive Acts by Moving Defendants New York Federal Court Holds

Plaintiffs filed a class action complaint against various defendants, including various Bank of America entities, various Citigroup entities, and Pavia e Ansaldo, alleging violations of federal securities laws; specifically, the Third Amended Consolidated Class Action Complaint alleged violations of Rule 10b-5 and Section 10(b) “on behalf of purchasers or securities of the international dairy conglomerate Paramalat Finanziaria S.p.A. and its subsidiaries and affiliates.” In re Parmalat Securities Litig., ___ F.Supp.2d ___ (S.D.N.Y. August 11, 2008) [Slip Opn., at 1-2]. Some of the defense attorneys moved to dismiss the class action but the district court denied the motion on the ground that “plaintiffs could have prevailed against those defendants under Rule 10b-5(a) and 10b-5(c) with respect to some (but not all) of the challenged transactions, assuming that they proved their allegations notwithstanding their lack of any actionable misrepresentations or omissions by them.” Id., at 1-2 (citing In re Parmalat Sec. Litig., 376 F.Supp.2d 472 (S.D.N.Y. 2005). Subsequently, the United States Supreme Court issued its opinion in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 128 S.Ct. 761 (2008), our summary of which may be found here. Defense attorneys for Bank of America, Citigroup and Pavia moved for summary judgment on the ground that Stoneridge Investment precludes liability in the absence of any actionable misrepresentations or omissions by the named defendants. Id., at 2. The district court agreed and granted judgment in favor of defendants against the class action claims.

Stoneridge Investment held that “‘[r]eliance by the plaintiff upon the defendant’s deceptive acts is an essential element of the § 10(b) private cause of action.’” In re Parmalat, at 2 (quoting Stoneridge Investment, at 769). In opposition to the summary judgment motion, class action plaintiffs argued that they can establish such reliance as to all three defendants. The district court disagreed. We discuss here only one of the arguments – plaintiffs’ claim that “BofA, as a placement agent, breached a duty to disclose” certain facts “to investors who purchased securities from BofA in private placements.” Id., at 2-3. The federal court explained that a “fundamental problem” existed in plaintiffs’ argument against BofA in that “the duty of disclosure that BofA allegedly breached was a duty owed only to purchasers from BofA in private placements” and that, while “some members of the alleged class bought from BofA in private placements,” it was undisputed that “none of the named plaintiffs” had done so. Id., at 3. The district court held, “This is fatal to plaintiffs’ argument.” Id. The court explained at page 3, “Although reliance is presumed where a defendant seller breaches a duty of disclosure, only investors to whom the duty was owed may avail themselves of that presumption.” Put simply, “reliance is not presumed merely because named plaintiffs in a purported class action allege that a duty was owed to other members of the proposed class.” Id. Based on Stoneridge Investment, the district court granted the defense motion for summary judgment, id., at 6.

Posted In: Class Action Court Decisions, PSLRA/SLUSA Class Actions

Class Action Claims by Rice Growers Seeking Damages Arising from Contamination of U.S. Rice Supply by Non-Approved Genetically Modified Strains of Rice not Appropriate for Class Action Treatment because Substantial Differences in Individual Damages and Proof of Damages Defeat Rule 23(b)(3) Requirement for Predominance and Superiority Missouri Federal Court Holds

Various class action lawsuits were filed against Bayer CropScience and others seeking to recover for damages allegedly when “the defendants contaminated the U.S. rice supply with non-approved genetically modified strains of rice, thereby affecting the market price for plaintiffs’ crops.” The class action complaints were filed after the U.S. Department of Agriculture announced, in August 2006, that trace amounts of a rice seed developed by Bayer CropScience and “designed to be resistant to a Bayer herbicide, Liberty Link,” had been found in the U.S. rice supply. In re Genetically Modified Rice Litig., ___ F.Supp.2d ___ (E.D. Mo. August 11, 2008) [Slip Opn., at 1-2]. (The rice strain at issue in the class actions “is now deregulated by USDA, [but] at the time of the contamination it was not approved for human consumption.” Id., at 2.) The Judicial Panel on Multidistrict Litigation consolidated the class actions for pretrial purposes in the Eastern District of Missouri, and plaintiffs’ filed a master consolidated class action complaint. Id., at 1. “The plaintiffs in the master consolidated class action complaint are rice producers from five U.S. states where rice is grown and harvested: Arkansas, Louisiana, Mississippi, Missouri and Texas.” Id., at 3.Plaintiffs’ lawyers moved for class action certification; defense attorneys opposed class action treatment on the grounds that individual issues predominate over common issues. Id., at 1. The district court agreed that class action treatment was not warranted, concluding that class action certification was “inappropriate…because plaintiffs’ varying claims for damages are not amenable to class-wide adjudication.” Id.

According to the master class action complaint, world-wide reaction to the announcement directly affected the market for U.S. long grain rice: Japan barred further imports of such rice, the European Union required that all U.S. rice be “tested and certified as free of genetically-modified traits,” and several other countries – including Russia, Canada, the Philippines, Taiwan and Iraq – “imposed restrictions on U.S. rice imports.” In re Genetically Modified Rice, at 2-3. The class action alleged that “the U.S. market price for rice dropped dramatically as a result of Bayer’s contamination of the rice supply.” Id., at 3. The U.S. produces 13% of the world’s rice and exports nearly half of its rice, id. The class action relies on the market price for rice as listed on the Chicago Board of Trade (CBOT) for the period of August 18-23, 2006 to support its claim that the “dramatic price drop” is attributable to the announcement concerning the discovery of the contaminated rice. Id., at 4. The class action alleged further that economic harm continued beyond August 2006, id.

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Posted In: Certification of Class Actions, Multidistrict Litigation, Class Action Court Decisions

Securities Fraud Class Action Complaint Adequately Alleged Loss Causation when Facts were Considered as a Whole so District Court Erred in Granting Defense Motion to Dismiss Class Action Complaint Ninth Circuit Holds

Plaintiffs, a group of investors, filed a class action against Gilead Sciences, “a biopharmaceutical company that specializes in developing and marketing treatments for life-threatening diseases,” alleging violations of federal securities law; specifically, the class action complaint alleged that defendants “misled the investing public by representing that demand for its most popular product” – Viread, an antiretroviral agent used to treat HIV – was “strong without disclosing that unlawful marketing was the cause of that strength.” In re Gilead Sciences Securities Litig., ___ F.3d ___ (9th Cir. August 11, 2008) [Slip Opn., at 10322-23]. Viread accounted for almost two-thirds of Gilead’s total revenues, and the fourth amended class action complaint alleged that defendants Gilead and “some of its top officers” violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by aggressively promoting Viread for “off-label” uses, that is, for uses that had not been approved by the FDA, id., at 10323-24. The class action complaint outlined an alleged scheme to promote off-label uses and further alleged that ultimately “75% to 95% of Viread sales resulted from off-label marketing efforts.” Id., at 10324-25. Defense attorneys moved to dismiss the class action under Rule 12(b)(6) for failure to adequately allege loss causation; the district court agreed and dismissed the class action complaint. Id., at 10323. The Ninth Circuit reversed.

As with all securities fraud cases, the specific facts detailed in the class action complaint are central to the Circuit Court’s analysis of the district court order dismissing the class action with prejudice. In this case, those facts span more than 9 pages of the appellate court’s opinion. See In re Gilead Sciences, at 10323-31. We do not summarize those facts here, noting only that, according to “two confidential witnesses who served as Gilead salespeople,” the off-label marketing efforts “took three forms: (1) marketing to HIV patients co-infected with Hepatitis B; (2) marketing Viread as a first-line or initial therapy for HIV infection; and (3) marketing against Viread’s safety profile,” and that, ultimately, “75% to 95% of Viread sales resulted from off-label marketing efforts.” Id., at 10325 (footnote omitted). The FDA sent Gilead a letter in March 2002, accusing the company of off-label marketing, id., and in August 2003 the FDA made public a July 2003 “warning letter,” but the investing public did not yet appreciate the letter’s significance, id., at 10328-29. According to the class action complaint, Gilead also encouraged overstocking of Viread but publicly stated that overstocking was not a basis for Viread’s increased sales, id., at 10326-27. It was not until October 2003 that investors realized the impact of off-label marketing on Viread sales, id., at 10330. The district court dismissed the class action with prejudice on the ground that plaintiffs “failed to adequately plead loss causation” under Dura Pharmaceuticals, Inc.. v. Broudo, 544 U.S. 336 (2005), because the class action complaint failed to “connect the following chain of events…: 1) that [the] alleged failure to disclose the off-label marketing scheme caused a material increase in sales; 2) that practitioners materially decreased their demand for Viread due to the publication of the FDA Warning Letter; and most importantly, 3) that the alleged decrease in sales due to the FDA letter proximately caused Gilead’s stock to decrease three months later,” id., at 10331. The Ninth Circuit explained that the district court order rested entirely on its conclusions concerning loss causation, id.

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Posted In: Class Action Court Decisions, PSLRA/SLUSA Class Actions