Lite DePalma Greenberg, LLC Firm News Feed May 2019 00:00:00 -0800firmwise Jersey Extends the Statute of Limitations in Civil Actions for Sexual Abuse Claims is crucial for litigants, attorneys, and the overall community to be aware of S477, which legally extends the statute of limitations in civil actions for sexual abuse claims. Governor Phil Murphy signed this legislation into law on May 13, 2019. The primary sponsors of the Bill included Senators Joseph Vitale and Nicholas Scutari; and Assembly members Annette Quijano, Valerie Vainieri Huttle, and Mila Jasey. See, <a href="" target="_blank">New Jersey Legislature, Bill Number S477</a>.<br /> <br /> This new increases the civil statute of limitations for sexual assault to seven years, up from the previous two-year cut-off. Concerning adult survivors of child sexual abuse, the Bill expands the statute of limitations to either seven years past the discovery of the trauma (i.e., when an individual who was assaulted links the trauma of that assault to the harm done to that specific individual), or until age 55, whichever is later.<br /> <br /> The Bill also creates a two-year window during which sexual assault victims, who were previously denied their day in court due to the prior two-year limitation period, can nevertheless now pursue their civil remedies.<br /> <br /> Lastly, the Bill creates a carve-out for the New Jersey Tort Claims Act, such that public entities (i.e., municipalities, schools, and other public bodies) would be stripped of immunity from lawsuits asserting claims of sexual abuse, and such entities could be held liable as if they were a private individual and/or organization.<br /> <br /> The Bill has been applauded, as the State has expanded sexual abuse victims&rsquo; potential legal remedies: &ldquo;Survivors of sexual abuse deserve opportunities to seek redress against their abusers,&rdquo; said Governor Phil Murphy. &ldquo;This legislation allows survivors who have faced tremendous trauma the ability to pursue justice through the court system. I thank the bill&rsquo;s sponsors for their commitment to tackling this issue, as well as the advocates for their activism and engagement.&rdquo; See, &ldquo;<a href="" target="_blank">Sexual abuse survivors often struggle for years to come to terms with their abuse, especially child victims</a>,&rdquo; said Assemblywoman Vainieri Huttle. &ldquo;We must allow victims the time to realize the damage that has been done to them both physically and mentally. <a href="" target="_blank">Survivors of sexual abuse deserve a fair opportunity to seek justice</a>.&rdquo; Id.<br /> <br /> New Jersey now follows a national trend of various states assessing their respective statutes of limitations for these types of cases. From a legal perspective, accused individuals and entities, along with potential plaintiffs, must be prepared to litigate these matters, where, for example, important witnesses have died, crucial discovery documents may no longer exist, and/or other evidence might not be available anymore due to the passage of time. The Bill will, undoubtedly, increase exposure of individuals, businesses, public entities, and other organizations in New Jersey, while affording plaintiffs expanded opportunities to pursue their respective claims. All parties should be prepared to litigate these matters, in light of this changed landscape. Entities potentially exposed to such claims should immediately check their historical insurance coverages, in the event a claim should arise. Simultaneously, plaintiffs should determine and seek as much corroborating evidence and proofs as possible, in order to demonstrate a legal basis for relief.<br /> <br /> Should such claims be filed, following the passage of S477, it is advisable for all parties to retain legal counsel in order to advise of these statute of limitations issues, proper pleading requirements, and other substantive dictates necessary to either the prosecution or defense of such claims.<br />Lite DePalma Greenberg Law Blog23 May 2019 00:00:00 -0800 DePalma Greenberg Successfully Challenges Recent Bar on the Sale of Raw Milk for Pet Consumption<p>Lite DePalma Greenberg Successfully Challenges Recent Bar on the Sale of Raw Milk for Pet Consumption.&nbsp; To read more on this, click <a href="" target="_blank">here</a>.</p>News & Events21 May 2019 00:00:00 -0800 Heavy Burden: Court Determines Obesity Alone is Not A Disability Under LAD has become a serious health problem in the United States, with more than one-third of the population being obese. It has been labeled a national epidemic by the Centers for Disease Control and Prevention (&ldquo;CDC&rdquo;), and it is now considered a chronic disease by many reputable medical organizations, including the American Medical Association (&ldquo;AMA&rdquo;), the National Institutes of Health, and the American Association of Clinical Endocrinologists, to name a few. According to the CDC, &ldquo;[o]besity-related conditions include heart disease, stroke, type 2 diabetes and certain types of cancer that are some of the leading causes of preventable, premature death.&rdquo; In the workplace, decreased productivity and increased absenteeism due to obesity is a huge economic burden on our society.<br /> <br /> In 2013, the AMA, the largest association of physicians and medical students in the United States, voted to designate obesity as a disease. As a result of the AMA&rsquo;s decision, many employment-law practitioners, employers, and employees alike started speculating as to whether employees who suffered adverse employment actions or harassment based on their obesity would be legally protected against discrimination in New Jersey. <br /> <br /> The New Jersey Law Against Discrimination (&ldquo;LAD&rdquo;) has long prohibited employers from discriminating against employees based on the employees&rsquo; disabilities or perceived disabilities. In particular, the LAD defines disability to include any &ldquo;physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders.&rdquo; With these principles in mind, the following question is inevitably posed: should obesity, by itself, be considered a disability under the LAD?<br /> <br /> Last month, in <em>Dickson v. Community Bus Lines, Inc.</em>, the Appellate Division issued an opinion affirming the Law Division&rsquo;s determination that &ldquo;obesity alone is not protected under the LAD as a disability unless it has an underlying medical cause.&rdquo; In <em>Dickson</em>, the plaintiff weighed between 500 and 600 pounds during his tenure as a bus driver for Community Bus Lines, Inc. (&ldquo;Community&rdquo;). During his employment with Community, the other drivers and his supervisors regularly made rude comments to him about his weight. However, the plaintiff also made jokes with, and teased, the other employees, and he commonly referred to himself as &ldquo;fat boy.&rdquo; <br /> <br /> In order to maintain his employment as a bus driver, the Department of Transportation (&ldquo;DOT&rdquo;) required that the plaintiff pass a medical examination every two years and obtain a medical certification verifying that he was fit to drive. In 2015, two different doctors determined that additional testing was required before the plaintiff could be certified to drive a bus. As a result, Community notified him that he had been placed &ldquo;out of service&rdquo; until he was able to receive a medical certification card. <br /> <br /> Shortly thereafter, the plaintiff filed a Complaint in the Law Division alleging that Community discriminated against him based on his weight; failed to provide him with accommodations; retaliated against him; constructively discharged him from his job; and subjected him to hostile work environment under the LAD. The Law Division granted summary judgment to Community on all claims, and the plaintiff appealed, challenging only the Law Division&rsquo;s dismissal of his hostile work environment claims. <br /> <br /> On appeal, the Appellate Division explained that, in order to prove a prima facie hostile work environment claim under the LAD on the basis of disability, the plaintiff was first required to show that he had a disability or a perceived disability under the LAD. The Appellate Division rejected the plaintiff&rsquo;s contention that obesity alone is a disability under the LAD, explaining (as the Supreme Court held in <em>Viscik v. Fowler Equipment Co.</em>, 173 N.J. 1 (2002)), that a plaintiff&rsquo;s obesity will constitute a disability under the LAD only if the plaintiff demonstrates that his condition is &ldquo;caused by bodily injury, birth defect, or illness.&rdquo; Essentially, the plaintiff in <em>Dickson </em>failed to show that his obesity was caused by an underlying medical condition. <br /> <br /> Despite this mostly unambiguous ruling, the Appellate Division did not provide any examples of underlying medical conditions that would satisfy the disability requirement under the LAD. Certainly, excessive weight gain can be caused by hypothyroidism, Cushing&rsquo;s syndrome, depression, and other medical causes. Perhaps these are the underlying medical conditions that would suffice, or perhaps not. Nonetheless, practitioners are left with the burden of deciding whether to proceed with similar cases in the future or, alternatively, how to defend such matters. <br /> <br />Lite DePalma Greenberg Law Blog09 May 2019 00:00:00 -0800 SCHOOL APPLICATIONS AND THE COMMITTEE ON CHARACTER for admission to the New Jersey Bar find that their lives are an open book to the Supreme Court of New Jersey Committee on Character. They can tell that from the Character and Fitness Questionnaire (&ldquo;CFQ&rdquo;) that all candidates must complete. The CFQ asks for detailed information about everything from addresses to education to employment to driving history, and much, much more.<br /> <br /> The CFQ has a question about law school applications that reads as follows: &ldquo;Have you <strong>EVER </strong>made a late disclosure, been accused of or been the subject of an inquiry for alteration, falsification, omission and/or misrepresentation of any document or copy thereof referring to your professional qualification to be a lawyer before or after law school, including but not limited to, online or late disclosures on your law school applications or applications to other bar jurisdictions, bar examination results letter, recommendation letter, report, etc.?&rdquo; That question obviously covers a candidate who (a) made a late disclosure on a law school application, or (b) was the subject of an inquiry about issues with his or her applications. <br /> <br /> But what the CFQ does not expressly state is that the Committee on Character obtains a copy of every candidate&rsquo;s law school application. And if there are inconsistencies, errors or (heaven forbid) falsehoods in the application, they will be a subject of inquiry by the Committee. Thus, even if a candidate&rsquo;s law school did not perceive an issue with an application and open an inquiry, and even if a candidate did not make a late disclosure, but opted simply to let any inaccuracy or inconsistency remain without action, the issue will arise before the Committee on Character and may affect Bar admission.<br /> <br /> As a result, it is most prudent for candidates to review their law school applications before the Committee on Character process even begins, and to amend anything that is not complete and accurate. Thus, Rutgers and Seton Hall Law Schools each have, as part of their orientation week for first-year students, a session with representatives of the Committee on Character, who urge students to review and, if necessary, correct their applications at that time, so as to avoid having the issue come up years later when the student applies for Bar admission. Some other law schools do that as well.<br /> <br /> But persons who are even more proactive can and should amend applications as early as during the law school admission process, as one of my own clients recently did after recognizing the need to do so. That candidate had been accepted at a law school, but realized belatedly that her application did not fully disclose certain information that the application called for. She contacted the school and amended her application before the date by which she would have to have accepted the school&rsquo;s offer of admission. The school accepted the amendment and it did not affect the offer of admission.<br /> <br /> Prospective law students doubtless recognize the importance of law school applications for purposes of admission to law school. But until a law student completes law school and applies for Bar admission, he or she may not realize that law school applications are also important in the context of Committee on Character review of a Bar application. The wise student will look back at his or her law school application carefully well before the Committee on Character process begins, and will amend anything in the application that requires amendment, in order to avoid or minimize issues down the road. <br />Lite DePalma Greenberg Law Blog25 Apr 2019 00:00:00 -0800 Notable Decisions<p><em>Russo v. Friedrich,</em> No. A-0883-16T2, 2018 WL 4904555 (N.J. Super. Ct. App. Div. Oct. 10, 2018)<br /> <em><br /> Porras v. HCA-HealthOne LLC, </em>No. 16CA1645, 2017 WL 4081795 (Colo. App. Sept. 14, 2017), reh'g denied (Oct. 19, 2017)<br /> <br /> <em>Falco v. Zimmer,</em> No. CV 13-1648, 2017 WL 4776605 (D.N.J. Oct. 20, 2017)<br /> <br /> <em>Harley v. City of New Jersey City,</em> No. CV 16-5135, 2017 WL 2779466 (D.N.J. June 27, 2017), reconsideration denied, No. CV 16-5135, 2017 WL 3641565 (D.N.J. Aug. 23, 2017)</p>Notable Decisions17 Apr 2019 00:00:00 -0800 Upon a PEX Line: A Class Action Happy Ending I joined Lite DePalma Greenberg&rsquo;s consumer rights class action practice in April 2014, I did so with my eyes open. I knew the reputation class actions had in our broader culture. &ldquo;That&rsquo;s where everybody gets 17 cents and the lawyers get 10 million bucks.&rdquo; In fact, when I told the father of one of my childhood friends, a man I had known for 20 years, what I would be doing, his reaction was: &ldquo;class action lawyer &ndash; that&rsquo;s one step below ambulance chaser, right?&rdquo;<br /> <br /> Five years later, I can safely say that this reputation is not unearned, since there are unscrupulous lawyers and some for frivolous suits. I&rsquo;m at least willing to hear the argument, and I have witnessed (and sometimes worked with) lawyers who fit or even exceed the worst stereotypes the U.S. Chamber of Commerce could gin up about us. This is, however, only one side of the story, and an interstitial one at that, describing an exceedingly small part of the practice and an exceedingly small number of lawyers within it. Here is the other side:<br /> <br /> One of the first cases I worked on after joining Lite DePalma Greenberg was a class action against Nibco, Inc., a manufacturer of residential and commercial &ldquo;PEX&rdquo; (<em>i.e.</em>, plastic) plumbing systems that were failing across the country, consistently sprouting leaks and damaging homes. As an associate attorney, I was a grinder on that case. I reviewed tens of thousands of documents. I traveled from Indiana to Oklahoma to Texas to Toronto taking depositions and speaking with the plumbers who installed the products and the homeowners who had paid thousands of dollars of their own money to repair drywall, repaint, and replumb their broken lines. Two such clients, a retired couple in rural Texas, would shut off their main water line every time they traveled for fear of returning to a flooded home. Another had completely replumbed his home, out of his own pocket, after his sixth leak. Another couple in Tennessee had experienced over <em>30 such leaks</em>, causing mold to form and grow in the moist and unreachable recesses of their home.<br /> <br /> These were not people who bought a candy bar that said it had almonds when it really had hazelnuts, or got an 11.75&rdquo; sandwich from Subway instead of the full 12&rdquo; (the horror!). These were people who were suffering, in the truest sense of that word, from the fear that their homes could literally be destroyed by the defective infrastructure pulsing through them. This was a case where, presumably, even the staunchest opponents of class actions would have to recognize the merit and utility of the case. This was the <em>other </em>side of the story that you rarely read or hear about.<br /> <br /> This week, the court approved a settlement between the parties that compensates homeowners for their property damage, gives many of them the option to replumb their homes if they choose, and rewards the class representatives, like that couple in Texas, who spent the last five years making sure that other homeowners would not have to go through the anxiety, stress, and costs, not all of which were monetary, that they did to right this wrong. The relief for most homeowners will be thousands of dollars, money that will truly compensate them for their very real, and oftentimes very devastating, damage. <br /> <br /> <em>This is why</em> I do what I do, and this is why <em>most </em>class action lawyers do what they do. For me personally, it was a reaffirmation of the good consumer advocates can do, that &ldquo;greedy plaintiffs&rsquo; lawyers&rdquo; can truly serve as a ballast against the machinations of companies that market and sell a bad product, and need to be held accountable for that malfeasance (in fact, one could argue that class actions actually bolster the market system by reducing fraud, adhesion, and incomplete information that work to inhibit competition and free enterprise, but that&rsquo;s a discussion for another day). That&rsquo;s not spin and it&rsquo;s not smoke.<br /> <br /> My hope, then, would be that the next time you hear someone, in the mold of my friend&rsquo;s dad, ragging on class actions and the so-called &ldquo;robber-baron attorneys who use them to extort productive enterprises and create a blight on our judicial system,&rdquo; even if you are generally inclined to agree, you will be in a position to at the very least respond: &ldquo;Yes, but&hellip;.&rdquo; <br />Lite DePalma Greenberg Law Blog11 Apr 2019 00:00:00 -0800 Notable Decisions<p><em>Bakov v. Consol. World Travel, Inc.,</em> No. 15-cv-2980, 2019 WL 1294659 (N.D. Ill. Mar. 21, 2019) (certifying a class of hundreds of thousands of people in Illinois who received robocalls from the defendant)<br /> <br /> <em>In re Tezos Sec. Litig.,</em> No. 17-cv-6779, 2018 WL 4293341 (N.D. Cal. Aug. 7, 2018) (denying defendants&rsquo; motion to dismiss)<br /> <br /> <em>Mendez v. Avis Budget Grp., Inc.,</em> No. 11-cv-6537, 2017 WL 5513691 (D.N.J. Nov. 17, 2017) (certifying a national class of over 10 million people)<br /> <br /> <em>Maor v. Dollar Thrifty Auto. Grp., Inc., </em>303 F. Supp. 3d 1320, 1322 (S.D. Fla. 2017) (denying defendant&rsquo;s motion to dismiss)<br /> <br /> <em>Rockwood Ret. Comm. v. Insinkerator &amp; Emerson Elec. Co.,</em> No. 15-cv-346, 2016 WL 3351009 (E.D. Wash. June 15, 2016) (denying defendants&rsquo; motion to dismiss)<br /> <br /> <em>In re Vivendi Universal, S.A. Sec. Litig.,</em> 838 F.3d 223 (2d Cir. 2016) (affirming jury verdict, an &ldquo;inflation maintenance&rdquo; theory of loss causation, and other important trial court rulings)<br /> <br /> <em>Kramer v. Toyota Motor Corp.,</em> 705 F. 3d 1122 (9th Cir. 2013) (affirming district court denial of Toyota&rsquo;s motion to compel arbitration)<br /> <br /> <em>Mendez v. Avis Budget Grp., Inc.,</em> No. 11-cv-6537, 2012 WL 1224708 (D.N.J. Apr. 10, 2012) (denying defendants&rsquo; motion to dismiss)<br /> <br /> <em>In re Vivendi Universal, S.A. Sec. Litig., </em>765 F. Supp. 2d 512, 519 (S.D.N.Y. 2011) (denying Vivendi&rsquo;s motion for judgment as a matter of law or, in the alternative, for a new trial)<br /> <br /> <em>In re Toyota Motor Corp. Hybrid Brake Mktg., Sales, Practices &amp; Prod. Liab. Litig.,</em> 890 F. Supp. 2d 1210, 1214 (C.D. Cal. 2011) (denying Toyota&rsquo;s motion to dismiss)<br /> <br /> <em>In re Toyota Motor Corp. Hybrid Brake Mktg., Sales, Practices &amp; Prod. Liab. Litig., </em>828 F. Supp. 2d 1150, 1153 (C.D. Cal. 2011) (denying Toyota&rsquo;s motion to compel arbitration)</p>Notable Decisions01 Apr 2019 00:00:00 -0800 R. Civ. P. 23(c)(4) Issue Certification Remains a Viable Option for Plaintiffs month, for at least the fourth time&sup1;, the Supreme Court declined to resolve an alleged circuit split over the proper application of Fed. R. Civ. P. 23(c)(4). <em>See Martin v. Behr Dayton Thermal Products LLC,</em> 896 F.3d 405 (6th Cir. 2018), <em>cert. denied</em>, 18-472, 2019 WL 1231762 (U.S. Mar. 18, 2019). While we will never know what drove the Supreme Court&rsquo;s decision to pass on this case, the deciding factor was likely the non-existence of the claimed circuit split (among other good reasons discussed below).<br /> <br /> <em>Behr</em> was a class action brought on behalf of about 540 homeowners residing in the McCook Field neighborhood, a low-income area surrounding a Superfund site in in Dayton, Ohio. Plaintiffs alleged that their properties had been contaminated by carcinogens emanating from industrial facilities owned by defendant Behr. The district court denied Rule 23(b)(3) liability-only class certification, finding individual questions relating to injury-in-fact and causation predominated over common issues. However, the court certified seven issues pursuant to Rule 23(c)(4), leaving only injury, causation, and damages to be resolved individually. The issues certified concerned <em>inter alia</em> Behr&rsquo;s role in creating the contamination, foreseeability, and Behr&rsquo;s failure to inspect and remediate.<br /> <br /> In response to Behr&rsquo;s Rule 23(f) appeal, the Court of Appeals for the Sixth Circuit declined to review the district court&rsquo;s denial of Rule 23(b)(3) class certification. However, the Court agreed to consider whether the district court erred in certifying an issue class without finding that common questions of law or fact predominated over individual issues as to the entire cause of action. Essentially, the Court of Appeals agreed to review the hotly debated issue of the interplay between predominance and Rule 23(c)(4) issue certification. The Court ultimately affirmed, and Behr&rsquo;s petition for <em>en banc</em> review was subsequently denied. <br /> <br /> The Court of Appeals found that certification of an issue class is proper where common questions predominate within certain issues and superiority is satisfied. In other words, the Court reaffirmed that Rule 23(c)(4) issue certification does not require a finding that common questions predominate <strong>for the cause of action as a whole</strong>. <em>Behr</em>, 896 F.3d at 413.<br /> <br /> The Supreme Court rightly denied certiorari. <em>First</em>, there is no Circuit split with respect to the application of Rule 23(c)(4). <em>See In re Nassau Cty. Strip Search Cases,</em> 461 F.3d 219, 227 (2d Cir. 2006) (permitting issue certification &ldquo;regardless of whether the claim as a whole satisfies Rule 23(b)(3)&rsquo;s predominance requirement&rdquo;); <em>Gates v. Rohm &amp; Haas Co.,</em> 655 F.3d 255, 273 (3d Cir. 2011) (recognizing issue certification and outlining factors to be considered in evaluating application of Rule 23(c)(4)); <em>Gunnells v. Healthplan Servs., Inc.,</em> 348 F.3d 417, 439&ndash;45 (4th Cir. 2003) (holding that courts may employ Rule 23(c)(4) to certify a class as to one claim even though all of the plaintiffs&rsquo; claims, taken together, do not satisfy the predominance requirement); <em>Pella Corp. v. Saltzman,</em> 606 F.3d 391, 394 (7th Cir. 2010) (&ldquo;A district court has the discretion to split a case by certifying a class for some issues, but not others, or by certifying a class for liability alone where damages or causation may require individualized assessments.&rdquo;); <em>Valentino v. Carter-Wallace, Inc.,</em> 97 F.3d 1227, 1234 (9th Cir. 1996) (&ldquo;Even if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)[ ] and proceed with class treatment of these particular issues.&rdquo;). The Sixth Circuit has now affirmatively joined this overwhelming majority. <br /> <br /> <em>Second</em>, both the Judicial Conference Committee on Rules of Practice and Procedure and its Advisory Committee on Civil Rules have recognized the absence of a Circuit split, concluded that Rule 23(c)(4) did not require any modification, and rejected a proposal to add &ldquo;except when certifying under Rule 23(c)(4)&rdquo; to Rule 23(b)(3). (<em>See</em> the Committees&rsquo; discussions regarding Rule 23(c)(4) <a href="" target="_blank"><strong>here</strong></a>, and respondents&rsquo; <a href="" target="_blank"><strong>brief</strong></a> filed in <em>Behr</em> for a robust analysis of same.).<br /> <br /> <em>Third</em>, Rule 23(c)(4) unambiguously instructs courts to certify issues &ldquo;[w]hen appropriate,&rdquo; thereby bestowing on courts broad discretion to certify &ldquo;particular issues.&rdquo; If predominance must be satisfied for an entire cause of action, then Rule 23(c)(4) lacks purpose. Such an interpretation violates &ldquo;the basic interpretive canon[]&rdquo; prohibiting a rule or statute to be construed in such a manner that causes another provision to &ldquo;be inoperative or superfluous,&rdquo; and is therefore untenable. <em>Corley v. United States,</em> 556 U.S. 303, 314 (2009). <br /> <br /> <em>Fourth</em>, as the Sixth Circuit found, Rule 23(b)&rsquo;s superiority requirement &ldquo;functions as a backstop against inefficient use of Rule 23(c)(4).&rdquo; <em>Behr</em>, 896 F.3d at 413. Superiority &ldquo;ensures that courts will not rely on issue certification where there exist only minor or insignificant common questions, but instead where the common questions render issue certification the superior method of resolution.&rdquo; <em>Id.<br /> </em><br /> Finally, the majority view on Rule 23(c)(4) makes sense and furthers the purpose of Rule 23. Since I primarily focus on class actions involving product defects, I can attest to the fact that the typical causes of action raised in product liability cases are complex, and they sometimes raise individualized issues. However, at the heart of every single one of these cases are key inquiries such as whether the product contains a defect, whether defendant had knowledge of the defect, and whether the misrepresentations or omissions relating to the defect were material and caused class members to pay a premium. It is universally accepted that those inquiries (and many others) can be answered using common evidence in the form of expert testimony and defendant&rsquo;s own documents. Gathering this evidence involves retaining liability and damages experts, hiring outside vendors that can host and maintain the millions of pages defendants produce, employing adequate staff to review and analyze the documents, and filing and defending against <em>Daubert </em>and other pre-trial motions related to this evidence. <br /> <br /> To take on this endeavor on an individual basis is simply cost-prohibitive even when the individual damages amount to many thousands of dollars. Few, if any, attorneys are willing to try these issues individually over and over again (which is what defendants bank on), but even if one were to foolishly do so, it would clog already full-to-the-brim dockets and amount to a very poor and inefficient use of the judiciary&rsquo;s precious time. <br /> <br /> There simply is no justification whatsoever for not employing the mechanism envisioned by the drafters of Rule 23(c)(4) in these types of cases. Armed with resolutions on these key (and other) common issues, perhaps then consumers can engage in a <strong>fair </strong>fight over the individual issues defendants are so quick to hang their hat on. I believe this notion of fairness drove the <em>Behr</em> decision, as evidenced by its concern that without issue certification, the class members &ldquo;might not otherwise be able to pursue their claims,&rdquo; <em>Behr</em>, 896 F.3d at 416, and the Court&rsquo;s stated &ldquo;expectation that [this case] be moved expeditiously toward resolution&rdquo; on remand, <em>id.</em> at 417. <hr /> &sup1;<em>See Healthplan Servs., Inc. v. Gunnells,</em> No. 03-1282; <em>Pella Corp. v. Saltzman,</em> No. 10-355; <em>Merrill Lynch, Pierce, Fenner &amp; Smith, Inc. v. McReynolds,</em> No. 12-113.<br /> <br />Lite DePalma Greenberg Law Blog28 Mar 2019 00:00:00 -0800 Cruise Line Robocall Class Action: Illinois Class Certified Holiday Cruise Line robocall class action crossed a major milestone on March 21, 2019: the Court granted the plaintiffs&rsquo; motion for class certification. Now, the case is not just the three named plaintiffs against one defendant. It is the named plaintiffs plus <em>hundreds of thousands</em> of Illinois residents against Holiday Cruise Line. <ul> <li>The Court&rsquo;s <a href="/77A1CC/assets/files/Documents/2019-03-21 Order on Class Cert.pdf">opinion </a>granting class certification is 62-pages long.</li> <li>Read what plaintiffs allege about the Holiday Cruise Line robocalls in the public versions of their <a href="/77A1CC/assets/files/Documents/2018-08-07 (165) Plaintiffs' REDACTED Motion for Class Certification.pdf">opening brief</a> and <a href="/77A1CC/assets/files/Documents/2018-09-19 (194) Plaintiffs' REDACTED Reply ISO Class Motion.pdf">reply brief</a> to in support of class certification.</li> <li>Learn more about the <a href="">class action attorney</a> overseeing this litigation.</li> </ul> <strong>Requirements For Class Certification<br /> </strong><br /> The Court explained that class certification is only appropriate where a plaintiff satisfies the requirements of Federal Rule of Civil Procedure Rule 23(a)&mdash;numerosity, commonality, typicality, and adequacy of representation.<br /> <br /> A plaintiff must satisfy one of three alternatives in Rule 23(b). In this case, plaintiffs sought certification under Rule 23(b)(3), which requires them to prove that &ldquo;questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.&rdquo; <br /> <ul> <li>The <a href="" target="_blank">full text of Rule 23</a> is available at Cornell&rsquo;s Legal Information Institute.</li> </ul> Finally, a plaintiff must prove the proposed class is &ldquo;ascertainable,&rdquo; meaning that the class is clearly defined, and its parameters is based on objective criteria. Unlike the others, this is an implied requirement created by judges that does come from directly from the text of Rule 23.<br /> <br /> <strong>Personal Jurisdiction In Class Actions<br /> </strong><br /> Before addressing the Rule 23 requirements, the Court took a detour to address a Holiday Cruise Line contention regarding jurisdiction.<br /> <br /> Holiday Cruise Line&rsquo;s argument was that the Supreme Court&rsquo;s recent ruling in <em>Bristol-Myers Squibb Co. v. Superior Court of California</em>, 137 S. Ct. 1773 (2017), limited the Court&rsquo;s jurisdiction in such a way that it could only grant plaintiffs&rsquo; class motion as to other Illinois residents. Virtually every Court that has considered this question has concluded the case does not apply to class actions, but the Court still sided with Holiday Cruise Line, holding it lacked personal jurisdiction to certify a nationwide class.<br /> <ul> <li>The <a href="" target="_blank">Supreme Court&rsquo;s Bristol-Myers Squibb decision</a> is available at Casetext.</li> <li>The vast majority of judges have concluded <a href="" target="_blank">Bristol-Myers Squibb does not apply in class actions</a>.</li> </ul> The Court also rejected plaintiffs&rsquo; argument that Holiday Cruise Line waived the right to object to personal jurisdiction, because it had previously conceded that it did not challenge personal jurisdiction and had waited too long to raise the defense. Plaintiffs believe they will eventually be vindicated with respect to their position on personal jurisdiction in this case.<br /> <br /> <strong>Scope Of Plaintiffs&rsquo; Proposed Class Definition</strong><br /> <br /> The Court also addressed Holiday Cruise Line&rsquo;s complaint about the scope of plaintiffs&rsquo; proposed class definition before turning the Rule 23 requirements. <br /> <br /> Plaintiffs proposed the following class definition:<br /> <br /> <div style="margin-left: 40px;"><em>&ldquo;All persons in the United States (1) who VVT called from December 29, 2014 through March 20, 2016, to market a cruise aboard the Grand Celebration cruise liner sold by CWT, and (2) who answered such calls.&rdquo;</em><br /> &nbsp;</div> Holiday Cruise Line argued that plaintiffs improperly expanded the class definition to include consumers who received its unwanted robocalls on landline telephones in addition to those who received the calls on their cell phone. Holiday Cruise Line urged the Court to use the prior, limited class definition, but the Court declined.<br /> <br /> Judges may ask for the parties&rsquo; help in defining the class, but that obligation ultimately falls on the judge&rsquo;s shoulders under Rule 23(c)(1)(B). Moreover, courts have complete discretion to modify a class certification decision at any time prior to final judgment. The Court thus used the version of plaintiffs&rsquo; class definition that included robocalls to both cell phones and landlines.<br /> <br /> <strong>Plaintiffs Proposed National Class Contains Millions Of Class Members</strong><br /> <br /> There is no set number that serves as a bar or requirement to establish numerosity, but courts have held that a class must generally include more than 40 people to satisfy Rule 23(a)(1).<br /> <br /> Here, plaintiffs obtained call records from Sprint and carriers showing that Holiday Cruise Line&rsquo;s call centers in India had transferred over 1.6 million calls to the defendant&rsquo;s call centers located in the U.S. Even if limited to Illinois residents, the call records showed that, among those transfers, 40,000 involved Illinois residents.<br /> <br /> Like most normal people, the vast majority of the people who received robocalls from Holiday Cruise Line&rsquo;s telemarketer hung up on them. Recognizing this, the Court held that the total number of illegal outbound calls&mdash;and thus the potential number of class members&mdash;is likely <em>many times</em> the numbers of transferred calls and that this proof easily established numerosity.<br /> <br /> <strong>Class Members&rsquo; Common Injury Presents A Common Question</strong><br /> <br /> To establish commonality, a plaintiff must demonstrate that the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. A common nucleus of operative facts is usually enough to satisfy this requirement, which is set out in Rule 23(a)(2).<br /> <ul> <li>The Supreme Court&rsquo;s decision in <em>Wal-Mart v. Dukes</em>, 564 U.S. 338 (2011), established the <a href="" target="_blank">standard governing the commonality analysis</a>.</li> </ul> Plaintiffs are pursuing a single claim in this case for an alleged violation of the Telephone Consumer Protection Act (TCPA). To prevail on this claim, all plaintiffs must show is that they received calls as part of this call campaign, and that every call included a prerecorded message. The Court was satisfied that they had, because class members all received the same robocall from Holiday Cruise Line&rsquo;s telemarketer utilizing the same telemarketing software.<br /> <ul> <li>The Federal Trade Commission (FTC) has seen evidence of <a href="" target="_blank">widespread abuse by telemarketers of soundboard technology, the type of software at issue in this case</a>.</li> </ul> Still, Holiday Cruise Line argued some of the telemarketing agents may have &ldquo;unmuted&rdquo; their microphones to speak directly to class members, that the agents had discretion not to use the prerecorded voice messages at all, and that individualized questions exist as to whether those agents were running multiple robocalls simultaneously. The Court rejected all of these arguments as either irrelevant or contrary to plaintiffs&rsquo; evidence.<br /> <br /> <strong>Plaintiffs&rsquo; Claims Are Typical Of The Class<br /> </strong><br /> In every class action, the class representative&rsquo;s claims must arise from the same events or course of conduct that gives rise to class members&rsquo; claims. This is the &ldquo;typicality&rdquo; requirement embodied in Rule 23(a)(3).<br /> <br /> Plaintiffs argued that their claims are typical of the class members because they all arise from the same course of conduct&mdash;namely, Holiday Cruise Line&rsquo;s use of a telemarketer to call class members and play audio recordings marketing a &ldquo;free&rdquo; trip aboard the Grand Celebration cruise ship. Plaintiffs are also pursuing their claims based on the same legal theory of being subjected to unwanted prerecorded voice messages. The Court agreed and ruled plaintiffs are typical of the class members they proposed representing.<br /> <br /> Holiday Cruise Line was unable to mount a serious challenge on this point. The Court noted that its arguments rested on &ldquo;a series of inconsequential facts&rdquo; and rejected each of them.<br /> <br /> <strong>Plaintiffs&rsquo; Interests Are Aligned With The Class And Their Lawyers Have &ldquo;Significant Experience&rdquo; Pursuing Robocall Class Actions</strong><br /> <br /> Because named plaintiffs in class actions represent thousands, sometimes millions, of other people not involved with the litigation, courts scrutinize them and their lawyers to ensure they will fairly and adequately protect the interests of the class, as required under Rule 23(a)(4).<br /> <br /> Holiday Cruise Line could articulate no conflicts of interests between the plaintiffs and class members and none were apparent to the Court. As such, for essentially the same reasons it found they had satisfied the typicality requirement, the Court ruled plaintiffs had proved they would be adequate class representatives.<br /> <br /> Holiday Cruise Line was also unable to challenge the adequacy of plaintiffs&rsquo; lawyers who have, collectively, filed hundreds of class actions and recovered hundreds of millions of dollars in compensation for consumers, employees, investors, and others around the country. <ul> <li>Lite DePalma Greenberg has garnered widespread praise for the <a href="" target="_blank">high quality of legal representation</a> it provides to class action plaintiffs.</li> </ul> Based on its own assessment, the Court concluded that plaintiffs&rsquo; lawyers would adequately represent the interests of the class based on their &ldquo;significant experience with class action TCPA litigation and has the resources to pursue this action.&rdquo;<br /> <br /> <strong>Plaintiffs&rsquo; Class Definition Is Definite Enough<br /> </strong><br /> In addition to the four requirements of Rule 23(a), some courts evaluate a fifth, implied requirement that the membership of the class be sufficiently definite or ascertainable. To meet satisfy this test, a class definition must identify a particular group of individuals harmed in a particular way during a specific period. There is no need to ascertain class members&rsquo; actual identities&mdash;it is enough that the class be ascertain<em>able</em>. <ul> <li>The jurisdiction where this case is pending is one of several to have <a href="" target="_blank">rejected a heightened ascertainability requirement</a>.</li> </ul> Holiday Cruise Line raised a remarkable <em>seven </em>arguments against ascertainability. These arguments, in one form or another, all question the validity and reliability of plaintiffs&rsquo; proposed method for class member identification. The Court rejected them all, finding that, &ldquo;[a]t this stage, such arguments do not carry much weight.&rdquo;<br /> <br /> For example, Holiday Cruise Line argued there is no accurate and reliable way of identifying class members from just their phone numbers. As the Court explained, this argument misapprehends the law, which does not require plaintiffs to demonstrate there is an administratively feasible way of identifying everyone who falls within the class definition.<br /> <br /> The Court did not stop there. It went on to hold, to the extent there are any difficulties in identifying class members, Holiday Cruise Line is to blame:<br /> <br /> <div style="margin-left: 40px;"><em>&ldquo;It is also worth mentioning that any difficulties [Holiday Cruise Line] raises in identifying class members can be attributed to [its] failure to keep records of the individuals it hired [its telemarketer] to call.&rdquo;</em></div> <br /> The Court was thus ultimately satisfied that plaintiffs&rsquo; class definition met the implied ascertainability requirement.<br /> <br /> <strong>&ldquo;Plaintiffs&rsquo; Case Is Susceptible To Proof Common To The Class&rdquo;<br /> </strong><br /> Having found that plaintiffs met all the express and implied requirements of Rule 23(a), the Court turned to Rule 23(b)(3), which requires plaintiffs show that questions of law or fact common to the class members predominate over any questions affecting only individual class members. There is no mathematical or mechanical test for evaluating predominance. It is satisfied when common questions represent a significant aspect of a case and can be resolved for all class members in a single adjudication.<br /> <br /> Holiday Cruise Line argued that individual issue would predominate over issues common to the class, but its arguments rested on assertions that the Court had already rejected:<br /> <br /> <div style="margin-left: 40px;"><em>&ldquo;The Court need not reiterate the reasons for which it found each of [Holiday Cruise Line&rsquo;s] assertions without merit. Suffice it to say, plaintiffs&rsquo; case is susceptible to proof common to the class: whether [Holiday Cruise Line&rsquo;s telemarketer] called class members on [Holiday Cruise Line&rsquo;s] behalf as part of the Grand Celebration marketing campaign and whether those calls included prerecorded messages. That definition does not leave much room for variation and is undoubtedly common to each class member.&rdquo;</em><br /> &nbsp;</div> The Court also noted that plaintiffs are pursuing the same statutory damages of $500 to $1,500 per illegal robocall, so the question of appropriate remedies also is common to the class.<br /> <br /> <strong>The &ldquo;Superior&rdquo; Method For Litigating Plaintiffs&rsquo; Claims Is A Class Action</strong><br /> <br /> The final requirement of Rule 23(b)(3) is establishing that a class action is superior to other methods available to adjudicate the controversy at issue. The Court explained in its opinion that superiority is a comparative assessment, meaning courts must consider the efficiency of a class action with an eye toward other available methods.<br /> <br /> Consistent with the theme of its opposition to class certification generally, Holiday Cruise Line argued superiority could not be met in this case for reasons related to class member identification. Apart from the Court&rsquo;s finding that any difficulties related to class member identification could be attributed to Holiday Cruise Line&rsquo;s &ldquo;failure to keep records,&rdquo; the Court held that plaintiffs had come forward with enough evidence to establish that they would be able to identify and send direct notice to a significant number of class members. As such, the Court found that class treatment of the case would provide the fairest and most efficient adjudication of the alleged violations of the TCPA.<br /> <br /> For those and other reasons, the Court granted plaintiffs&rsquo; motion for class certification.<br /> <br /> If you received an unwanted robocall and are interested in pursuing a class action, please call or email <a href="">Jeremy Nash</a> today for a free case evaluation.Lite DePalma Greenberg Law Blog21 Mar 2019 00:00:00 -0800 LDG Attorneys Named to 2019 "Super Lawyers" and "Rising Stars" Lists LDG Attorneys Named to 2019 &ldquo;Super Lawyers&rdquo; and &ldquo;Rising Stars&rdquo; Lists:&sup1;<br /> <br /> <strong>Joseph J. DePalma</strong>, <strong>Bruce D. Greenberg</strong>, and <strong>Victor A. Afanador</strong> were all named to the 2019 list of &ldquo;New Jersey Super Lawyers.&rdquo; Mr. Greenberg has been included on that list every year since 2005, when the listing was first introduced, and Mr. DePalma has appeared every year since 2007. Mr. Afanador has been named to the &ldquo;New Jersey Super Lawyers&rdquo; list for four consecutive years. <strong>Susana Cruz Hodge</strong> and <strong>Andrew L. Smith</strong> were listed among the 2019 &ldquo;New Jersey Rising Stars.&rdquo; Ms. Hodge has been named to the list for six consecutive years, and Mr. Smith has been named to the list for three years.<br /> <br /> <strong>Katrina Carroll</strong> of LDG's Chicago office was named to the 2019 list of &quot;Illinois Super Lawyers.&quot; This is the second year that Ms. Carroll has appeared on that list. <strong>Kyle Shamberg</strong> of LDG&rsquo;s Chicago office was listed among the 2019 &ldquo;Illinois Rising Stars.&quot; Mr. Shamberg has been named to the &quot;Illinois Rising Stars&quot; list for four consecutive years. <br /> <br /> <strong>Mindee J. Reuben </strong>of LDG&rsquo;s Philadelphia office was named to the 2019 list of &ldquo;Pennsylvania Super Lawyers.&rdquo; This is the eleventh year that Ms. Reuben has appeared on that list.<hr /> &sup1;The Super Lawyers List is issued by Thompson Reuters. A description of the selection methodology can be found <a href="" target="_blank">here</a>. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.News & Events16 Mar 2019 00:00:00 -0800