WTK Connect

This blog provides updates and important insights about products liability, commercial, and consumer litigation.  It aims to educate our audience on the developments in these areas as well as to provide the audience with unique perspectives from seasoned defense attorneys. ______________________________________________________________________________________________________________________

  • California Court Slashes Attorney’s Fee Award in TCPA Settlement
    Dec 23, 2014 | Posted by Robert K. Dixon | Topics: Class Actions, Telephone Consumer Protection Act
    The fact that the court approved another multimillion-dollar Telephone Consumer Protection Act (“TCPA”) class action settlement is not particularly surprising.  What is particularly surprising, however, is that the court in Rose v. Bank of America Corporation reduced plaintiffs’ counsel’s attorney’s fee award by approximately 70%, and did so even though the defendant did not object to the fees being sought.  2014 U.S. Dist. LEXIS 121641, *3, 36–37 (N.D. Cal. Aug. 29, 2014).
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  • Courts Closely Scrutinizing Class Action Settlements
    Dec 23, 2014 | Topic: Class Actions
    Gone are the days of courts giving their “judicial rubber stamp” to class action settlements.  As stated by Judge Posner of the Seventh Circuit, although “[a] trial judge’s instinct, in our adversarial system of legal justice, is to approve a settlement, trusting the parties to have negotiated to a just result as an alternative to bearing the risks and costs of litigation . . . . a judge asked to approve the settlement of a class action is not to assume the passive role that is appropriate when there is genuine adverseness between the parties.”  Redman v. Radioshack Corp., 768 F.3d 622, 628 (7th Cir. Sept. 19, 2014).  Rather, a judge asked to approve a class action settlement should keep in mind the parties’ respective self-interests, which often results in a settlement that is unfavorable to the class, i.e., a modest settlement amount that is weighted in favor of attorneys’ fees for class counsel as opposed to an amount that results in a substantial recovery to the class.  Id.
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  • It’s alive, IT'S ALIVE!—California Resurrects Sanctions for Frivolous Litigation
    Dec 23, 2014 | Posted by Robert K. Dixon | Topics: Business Litigation, Class Actions, Product Liability
    California has resurrected the trial court’s authority to issue sanctions, including attorney’s fees, against a party that engages in “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”  Cal. Civ. Proc. Code § 128.5(a) (2015).  This is a positive development for defense attorneys and their clients, who find themselves dealing with plaintiffs and/or their attorneys that engage in bad-faith tactics or file frivolous lawsuits.
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  • The Ninth Circuit Permits Removal of a Subdivided Mass Action Under the Class Action Fairness Act
    Dec 23, 2014 | Topics: Class Actions, Pharmaceutical / Medical Devices
    In Romo v. Teva Pharmaceuticals USA, Inc., (and its companion case, Corber v. Xanodyne Pharmaceuticals, Inc.) the Ninth Circuit, sitting en banc, reversed a panel decision remanding to California state court multi-plaintiff lawsuits involving defective pain medications under the Class Action Fairness Act of 2005 (“CAFA”), which allows defendants to remove to federal court certain cases raising “claims of 100 or more persons that are proposed to be tried jointly.”  28 U.S.C. § 1332(d)(11)(B)(i).
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  • Application of the Components Parts Doctrine in Hands of California Supreme Court
    Aug 27, 2014 | Topic: Product Liability
    The California Supreme Court recently granted review of Ramos v. Brenntag Specialties, Inc. (2014) 224 Cal.App.4th 1239, a case involving California’s Components Parts Doctrine.  The significance of the Supremes considering Ramos is that its decision will resolve a split of opinion on the doctrine’s application in the Second Appellate District.  The facts of Ramos are substantially similar to another Second Appellate District case, Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, yet the Court’s decisions in the two cases are polar opposites. The Ramos court drew a distinction between products used in the manufacturing process versus end products sold to consumers.
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  • Ascertainability in Class Actions a Notable Hurdle for Plaintiffs
    Aug 27, 2014 | Topic: Class Actions
    Ascertainability, an implied prerequisite for class certification, requires both a sufficiently definite class definition and an administratively feasible way to determine whether a particular person is a class member.  (See, e.g., Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482 (N.D. Cal. 2011).)  Notably, a number of California courts have recently denied class certification to purchasers of various products due to ascertainability issues, particularly where the purchasers lacked sufficient records of their purchases.
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  • MPG Claims Becoming Hot Issue
    Aug 27, 2014 | Topics: Automotive, Warranty
    Automakers’ stated miles per gallon (MPG) estimates are drawing criticism from consumer groups and the plaintiff’s bar, as well as increased attention from the federal regulatory agencies overseeing such estimates.  The MPG ratings, which are based on guidelines and testing established by the Environmental Protection Agency (EPA), are widely used in car advertisements, and are included in the window stickers for new vehicles.  Dealership salespeople typically tout the estimated MPG to potential consumers as well.  Two recent lawsuits highlight the contentious issues involved in MPG claims.  It is also clear that the two governmental regulatory agencies tasked with overseeing this area, the EPA and the Federal Trade Commission (FTC), seem to be ratcheting up their standards and requirements.
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  • Package Delivery Notifications Exempt from TCPA
    Aug 27, 2014 | Posted by Robert K. Dixon | Topic: Telephone Consumer Protection Act
    The FCC granted, in part, Cargo Airline Association’s (“CAA”) petition for declaratory ruling, and as result, “package delivery companies may alert wireless consumers about their packages, as long as consumers are not charged and may easily opt out of future messages if they wish, among other pro-consumer conditions.”  (In re Cargo Airline Association Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, ¶1 (2014).)
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  • Tesla Adopts to Infinity and Beyond Mileage Warranty
    Aug 27, 2014 | Posted by Robert K. Dixon | Topics: Automotive, Warranty
    Tesla Motors, Inc. (“Tesla”) – a company that designs, manufactures, and sells electric vehicles – recently announced that the New Vehicle Limited Warranty for its Model S would include an 8-year, infinite mile warranty on both the battery pack and drive unit.
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  • Texts, Tacos, and the TCPA on Vicarious Liability
    Aug 27, 2014 | Posted by Robert K. Dixon | Topic: Telephone Consumer Protection Act
    In Thomas v. Taco Bell, Inc., the Ninth Circuit affirmed a district court’s ruling in a Telephone Consumer Protection Act (“TCPA”) case, which held that Taco Bell was not vicariously liable for text messages sent by a third party advertising a Taco Bell product.  (See Thomas v. Taco Bell Corp., No. 12-56458, 2014 U.S. App. LEXIS 12547 (9th Cir. July 2, 2014).)  The ruling is one of the first California appellate decisions to consider the issue of vicarious liability since the FCC’s declaratory ruling, which held that companies can be “vicariously liable under federal common law agency principles [i.e. Formal Agency, Apparent Authority, and Ratification] for a TCPA violation by a third-party telemarketer.”  (In re Joint Petition filed by Dish Network LLC, CG Docket No. 11-50, ¶24 (2013) (“Dish Network”).)
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