Gibbons Law Alert

Gibbons Law Alert

Tagged: Class Actions

Communication Between Counsel and Client’s Independent Contractors May Be Privileged

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Posted in General Litigation

On December 6, 2012

The Eastern District of Pennsylvania recently found that communications generated and documents created by a party’s independent consultant may be entitled to attorney-client privilege protection. In In re Flonase Antitrust Litigation, direct and indirect purchasers of Flonase launched a class action against GlaxoSmithKline PLC (“GSK”) for allegedly delaying market entry of generic Flonase into the market. A dispute arose between GSK and direct purchasers as to whether the attorney-client privilege protects communications between GSK and its independent contractor, Swiftwater, which is a pharmaceutical consulting company. In this case, Swiftwater assisted GSK’s Flonase brand team in three areas: legal and regulatory, business development, and standard business practices. In the legal arena, Swiftwater assisted in the evaluation of legal and regulatory matters, such as evaluating GSK’s patent and intellectual property rights and FDA application to market over-the-counter Flonase.

District of New Jersey Stays Pay-For-Delay Cases Pending High Court’s Decision in K-Dur

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Posted in Antitrust / Patent

On October 24, 2012

Defendants in reverse-payment actions pending in the Third Circuit (New Jersey, Pennsylvania, and Delaware) take note: in In re Effexor XR Antitrust Litigation the Honorable Joel A. Pisano, U.S.D.J., of the District of New Jersey has stayed several class-action litigations challenging the legality of certain reverse-payment settlement agreements between Wyeth and generic drug manufacturer Teva Pharmaceuticals, pursuant to which Wyeth allegedly paid Teva to delay its marketing of a generic counterpart to Wyeth’s Effexor XR drug.

Lack of Actual Notice Does Not Defeat Policy Exclusion When Insurer Made Sufficient Efforts to Provide Clear and Direct Notice of New Exclusion to Policyholder

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Posted in Insurance

On October 15, 2012

The recent decision in MDC Acquisition Co. v. North River Insurance Co., serves as a reminder of the impact that clear and direct notice of policy changes will have on the scope of available insurance coverage. Although rendered by the Northern District of Ohio, the decision is based upon generally accepted legal principles that apply in most jurisdictions and is noteworthy for both insurers and policyholders.

Third Circuit Deflates Run-Flat Tire Class Action Against BMW and Bridgestone

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Posted in Class Action Defense

On September 21, 2012

In Marcus v. BMW of N. Am, LLC, et al., the Third Circuit vacated an order certifying a class of owners and lessees of various model-year BMW vehicles equipped with run-flat tires, finding the class definition impermissibly vague, the proposed class not ascertainable, and otherwise rejecting certification on numerosity and predominance grounds. Although the Court remanded for further proceedings, it will likely be very difficult for the plaintiff to have a class certified in light of the Court’s directives for the necessary proof.

Second Circuit Rejects “Novel” Argument That Putative Class Action Plaintiff Has Article III Standing to Sue “Juridically Linked” Defendants Who Did Not Cause Her Any “Injury-In-Fact”

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Posted in Class Action Defense

On July 16, 2012

In Mahon v. Ticor Title Ins. Co., the Second Circuit held that a putative class action plaintiff must allege that each defendant injured her to satisfy Article III’s standing requirement. In so holding, the court explained that a putative class action plaintiff cannot use FED. R. CIV. P. 23’s “juridical link” doctrine to bootstrap the alleged injuries of absent, would-be class members and create Article III standing where none otherwise exists.

Third Circuit Concludes that Tying Arrangement Does Not Violate New Jersey’s Truth-in Consumer Contract, Warranty, and Notice Act

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Posted in General Litigation

On July 12, 2012

The New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act (the “NJ Warranty Act”) prohibits a seller from offering to consumers any warranty containing a provision that violates a “clearly established legal right” under state or federal law. The Third Circuit analyzed the scope of this “clearly established legal right” in its July 2, 2012 opinion in McGarvey v. Penske Auto Group and suggested that a warranty will be upheld absent a blatant violation of law.

Third Circuit Rejects Employee’s Unconscionability Arguments in Compelling Arbitration

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Posted in Class Action Defense

On April 4, 2012

In Quilloin v. Tenet HealthSystem Phila. Inc., the Third Circuit reversed the Eastern District of Pennsylvania’s denial of a motion to compel arbitration, finding error in the district court’s conclusion that genuine disputes of material fact might render the parties’ arbitration agreement unconscionable and unenforceable under Pennsylvania law.

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.

The SDNY’s Recent Application of Janus

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Posted in Securities

On November 11, 2011

In the few months since the Supreme Court announced the bright line rule of Janus Capital Group, a number of courts have applied the rule, giving us a better picture Rule 10b-5 liability post-Janus. The Supreme Court held in Janus that, for purposes of Rule 10b-5, the maker of a statement is “the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.” The Court analogized to the relationship between a speechwriter and a speaker: a speechwriter may draft a speech, but the content is within the control of the speaker who delivers it. Thus, the Court found that the investment adviser to a mutual fund was not liable for alleged misrepresentations in the fund’s prospectuses under Rule 10b-5, because the fund, and not the manager, was the maker of the statements.

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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