Gibbons Law Alert

Gibbons Law Alert

Author: Michael R. McDonald

Pennsylvania Supreme Court Holds the UTPCPA’s “Ascertainable Loss” Requirement Cannot Be Manufactured by Voluntarily Hiring Counsel and Incurring Litigation Costs

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Posted in Class Action Defense

On January 20, 2015

In Grimes v. Enterprise Leasing Co. of Phila., LLC, the Pennsylvania Supreme Court held that the retention of counsel to institute suit alone does not constitute “ascertainable loss” under the state’s consumer protection statute. The plaintiff in Grimes had rented a car from an Enterprise branch in Philadelphia and apparently declined to purchase Collision Damage Waiver or Loss Damage Waiver coverage.

Be Careful What You Wish For: Supreme Court Upholds Arbitrator’s “Erroneous” Class Arbitration Ruling

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Posted in Class Action Defense

On June 19, 2013

In Oxford Health Plans LLC v. Sutter, the U.S. Supreme Court affirmed an arbitrator’s decision that an agreement providing for arbitration of any disputes, constituted an agreement to participate in class arbitration. While at first blush this appears to be a departure from Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., it is not. Oxford Health says more about limited judicial review of an arbitrator’s decision than it does about the permissibility of class arbitration.

Rejecting Tele Aid, the Third Circuit in Maniscalco v. Brother Holds that the Laws of Consumers’ Home States Apply in Nationwide Class Actions

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Posted in Class Action Defense

On April 22, 2013

On March 8, 2013, the United States Court of Appeals for the Third Circuit issued its precedential decision in Maniscalco v. Brother International Corp., which significantly restricts the ability of out-of state plaintiffs to use the New Jersey Consumer Fraud Act (“NJCFA”) to pursue nationwide class actions in New Jersey against New Jersey based companies.

Supreme Court Prohibits Efforts to Evade CAFA’s Scope

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Posted in Class Action Defense

On April 12, 2013

In a unanimous decision interpreting the Class Action Fairness Act (“CAFA”), the U.S. Supreme Court in The Standard Fire Insurance Co. v. Knowles, held that a named plaintiff cannot avoid the scope of CAFA jurisdiction by stipulating that the class he seeks to represent will not seek damages that exceed the $5 million amount in controversy threshold.

Third Circuit Rejects Volkswagen Class Settlement for Fundamental Intra-Class Conflict in Consumer Fraud Class Action

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Posted in Class Action Defense

On June 8, 2012

In a precedential opinion issued on May 31, 2012, the Third Circuit in Dewey v. Volkswagen AG, et al., reversed an order granting final approval of a nationwide class action settlement on the ground that the class representative plaintiffs could not adequately represent the interests of the entire class, as required by Fed. R. Civ. P. 23(a)(4).

Third Circuit Affirms Dismissal of Off-Label Marketing Actions Against Schering for Lack of Standing

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Posted in Class Action Defense / General Litigation

On May 31, 2012

In a consolidated appeal pitting a putative class of third-party payors of drugs prescribed for uses not approved by the Food and Drug Administration, and a putative class of individual patients prescribed such drugs, against Schering-Plough and affiliated entities, the Third Circuit in In re Schering-Plough Corp. Intron/Temodar Consumer Class Action affirmed the district courts’ dismissals of both actions for lack of standing. The Third Circuit held that both plaintiffs, who brought federal and state statutory and common law causes of action, failed to allege a plausible nexus between Schering’s allegedly illegal marketing campaign and the doctors’ decisions to prescribe various drugs for unapproved uses.

Consent to Class Arbitration: What is the Meaning of “Silence?”

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Posted in Class Action Defense

On April 24, 2012

In Stolt-Nielsen S.A. v. Animal Feeds International Corp., the United States Supreme Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” As the parties in Stolt-Nielsen stipulated that their arbitration “agreement was ‘silent’ in the sense that they had not reached any agreement on the issue of class arbitration,” the Court ruled that the arbitrator could not infer the parties’ consent to class arbitration solely from the fact of their agreement to arbitrate, or failure to preclude it.

Ninth Circuit Reverses Itself, Withdraws Opinion Which Held that Magnuson-Moss Warranty Act Prohibits Mandatory Arbitration in Warranties

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Posted in Class Action Defense / General Litigation

On April 19, 2012

As reported in an earlier post in September 2011, the Ninth Circuit in Kolev v. EuroMotors West/The Auto Gallery held that the Magnuson Moss Warranty Act (“MMWA”) “precludes enforcement of pre-dispute agreements . . . that require mandatory binding arbitration of consumer warranty claims.” The Ninth Circuit’s ruling would have prohibited manufacturers and distributors of consumer products from attempting to take advantage of the Supreme Court’s recent pro-arbitration rulings, including AT&T Mobility v. Concepcion, involving MMWA consumer warranty claims. According to the original majority opinion in Kolev, to the extent the MMWA precludes arbitration clauses, class waivers in such clauses, which Concepcion rendered immune from invalidation under state laws, would thus likewise be unenforceable in MMWA actions, providing a complete end-run around Concepcion.

Lack of Standing and Choice-of-Law Rules Doom Nationwide Consumer Fraud Class Action Against BMW

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Posted in General Litigation

On November 23, 2011

On October 31, 2011, in Nirmul v. BMW, the District Court for the District of New Jersey dismissed a nationwide class action against BMW asserting claims under the New Jersey Consumer Fraud Act (“NJ CFA”), concluding, essentially, that none of the three plaintiffs had a standing to sue. The complaint alleged that the high pressure fuel pump in BMW’s N54 turbo engines had a known defect and that BMW failed to disclose this fact to purchasers throughout the country.

Ninth Circuit Rules that Magnuson-Moss Warranty Act Prohibits Mandatory Arbitration in Warranties, Creating a Circuit Split

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Posted in General Litigation

On November 1, 2011

The Ninth Circuit in Kolev v. EuroMotors West/The Auto Gallery held that The Magnuson Moss Warranty Act (“MMWA”) “precludes enforcement of pre-dispute agreements . . . that require mandatory binding arbitration of consumer warranty claims.” The Ninth Circuit’s ruling would essentially prohibit manufacturers and distributors of consumer products from attempting to take advantage of the Supreme Court’s recent pro-arbitration rulings, including AT&T Mobility v. Concepcion, involving MMWA consumer warranty claims. Thus, to the extent the MMWA precludes arbitration clauses, class waivers in such clauses, which Concepcion rendered immune from invalidation under state laws, would thus likewise be unenforceable in MMWA actions, providing a complete end-run around Concepcion.

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