MVA Litigation Blog

            Can it be that easy?  Can hundreds of plaintiffs avoid removal of their state actions to federal court simply by dividing their identical claims into two or more complaints with fewer than 100 plaintiffs on each complaint?  So far, two federal circuit courts of appeals– the Seventh Circuit and the Ninth Circuit - have answered “yes,” reasoning that this is precisely what the Class Action Fairness Act of 2005 (“CAFA”) permits in the provisions which circumscribe the removal of state mass actions.  Pointing to the Congressional purposes for enacting CAFA, corporate defendants ...

            As a defendant in a state class action, you exercise your right under the Class Action Fairness Act of 2005 (“CAFA”) to remove the case to federal court.  You are facing a putative class action with potentially thousands of class members, and your experts have established by a preponderance of the evidence that the aggregate damages of the class is greater than the $5 million threshold for removal under CAFA.  The federal court, however, remands your case to state court because the plaintiff filed a stipulation along with his complaint which states that he will not seek aggregate ...

          Defendants in state class actions will be interested in this three-part blog series in which we will examine two cases involving the Class Action Fairness Act of 2005 (“CAFA”) that are under consideration by the U.S. Supreme Court: Standard Fire Insurance Co. v. Knowles (S.Ct. No. 11-1450) and Bristol-Myers Squibb Co., et al. v. Anglin (S.Ct. No. 12-147).  Congress passed CAFA, in part, to rectify abuses of the class action process by State and local courts, including demonstrated biases against out-of-state defendants.  See 190 P.L. 2, § 2(a)(4), (b).  CAFA provides that a ...

"Justice does not require that courts profess to be more ignorant than the rest of mankind."  -       NC Court of Appeals in HCW, 2012 N.C. App. LEXIS 939 (2012)

North Carolina public policy favors arbitration and requires that doubts about whether arbitration is appropriate be resolved in favor of arbitration.  However, the Court of Appeals made clear in a recent decision that the courts will not turn a blind eye or deaf ear to compel arbitration at all costs.  Defendants seeking to compel arbitration of claims brought against them must proceed with the awareness that missteps prior to moving to ...

The critical inquiry into the breadth and depth of the U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) continues with two Petitions for Writ of Certiorari recently filed in the high court: Buffington et ux. v. SunTrust Banks Inc., S.Ct. case number 12-146, and American Express Co. et al. v. Italian Colors Restaurant et al., S.Ct. case number 12-133.  The decisions of the Second Circuit in Amex and the Eleventh Circuit in Buffington stand juxtaposed, with the Second Circuit having found a class arbitration waiver unenforceable because it was not ...

     What is the proper inquiry into expert evidence proffered by parties at the class certification stage?  Last year, we discussed cases from several U.S. Courts of Appeals which highlighted some of the uncertainties surrounding the applicability of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) and the depth of analysis courts should apply to expert evidence at the class certification stage.  See my previous blog here.  The Daubert analysis and Rule 23 rigorous analysis often seem to be conflated by parties and lower courts.  And in the midst of the U.S ...

Discussion regarding the impact of the U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion has included recognition of the likelihood that Concepcion would not serve as a stamp of approval on all class arbitration waivers – under some circumstances Concepcion likely would not preclude class actions or class arbitrations.  Over the last year, we have watched lower courts and regulatory bodies analyze Concepcion and the validity of class arbitration waivers in a variety of contexts:  state claims vs. federal claims, employment claims vs. consumer claims, antitrust ...

Several recent U.S. Supreme Court cases have emphasized that there is a strong federal policy in favor of arbitration.  Yet, an arbitration agreement is not impenetrable or always enforceable.  It is beneficial for businesses to understand the areas in which the interest in enforcing arbitration agreements may not be as strong as other interests at issue.  The enforceability of arbitration agreements in the bankruptcy context is one such area, which the U.S. Supreme Court has recently been asked to address.  As it now stands in the Fourth Circuit and several others, an arbitration ...

   The duty to preserve evidence in the face of impending litigation is a burden that befalls litigants and potential litigants.  We recently discussed the impact of the decision in Zubulake v UBS Warburg LLC 220 FRD 212 (S.D.N.Y. 2003) on the determination of when the duty to preserve attaches with respect to the preservation of electronic documents.  See my previous blog here addressing the reasonable anticipation standard established by Zubulake and as applied in state court in VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 2012 NY Slip Op 00658 (Jan. 31, 2012).  The duty to preserve ...

   Justice Initiatives, Inc. continues to raise the bar in its efforts to support and advocate for our court system. For six years, Justice Initiatives, Inc. has hosted the illustrious “Evening at the Courthouse” fundraising event, which has a guest list that reads like a “Who’s Who” of North Carolina federal and state judges, state and local elected representatives, and members of the Mecklenburg County Bar and Community. The event is hosted free of charge to guests, with a request for donations to support the organization. At this year’s event on May 8th, I was among those ...