Class action

Four couples are challenging Arizona's ban on same-sex marriage in a putatative class action, Courthouse News Service reports. For example, "plaintiffs Holly Mitchell and Suzanne Cummins say that though they were able to become certified foster care parents, only Cummins was allowed to adopt their two children because 'Arizona law strongly prefers heterosexual couples in permanent adoption proceedings and permits only a husband and wife to jointly adopt,'" Courthouse News Service further reports. The plaintiffs are seeking declaratory judgment and injunctive relief.

The Recorder reports that student athletes have been certified as a class to challenge the National Collegiate Athletic Association's rules that require collegiate athletes to sign away their rights of publicity.  That would include the right to license their names and likenesses for use in videogames and on television. However, the presiding California federal judge did not certify the athletes who were seeking to recover money damages.

Drug and Device Blog reports on a California Court of Appeal decision in which an intermediate appellate panel held that the California Confidentiality of Medical Information Act does not allow for plaintiffs to sue over the negligent maintenance of their confidential medical information unless their information was accessed wrongfully or without authorization.

In the underlying case, a doctor took home a hard drive containing the personal health information for 16,000 patients. The hard drive, as well as the encryption passcodes, were stolen, but no one knows if the thief viewed or tried to view the patients' personal health information.

Drug and Device Blog said the case has "broad appeal because the fact pattern is so typical of 'data security breach' lawsuits: Private information resides on a stolen hard drive or is sent off into the ether with nary an indication that anyone received, reviewed, used, or otherwise paid any attention to the information. At another level, such lawsuits (which are usually class actions) almost never articulate any credible basis that the plaintiffs suffered any actual harm."

Another settlement has been reached in the class action brought by the kids imprisoned in juvenile detention facilities after two Pennsylvania judges were given cash by the facilities' owners, The Scranton Times Leader reports. "Three companies behind the private, for-profit juvenile detention and treatment facilities at the heart of the scandal that sent two former Luzerne County judges to jail have reached a settlement with numerous juveniles and parents, promising to put $2.5 million into an account to be disbursed for legal fees and to the families and individuals who are part of the class-action suit," The Times Leader also reports.

(My thanks to my husband, Jason Rearick, for flagging this development for me.)

Thomas M. Cooley Law School has lost its claims of defamation, tortious interference with business relations, breach of contract and false light at the summary judgment stage against plaintiffs lawyers who posted on-line to solicit law-school clients and suggested in their proposed complaint that the law school used "'Enron-style'" accounting techniques, according to the opinion.

U.S. District Judge Robet J. Jonker of the Western District of Michigan said in his opinion that the law school is a limited purpose public figure involved in a public controversy about the value of a legal education for students. Even President Obama has weighed in on the future of legal education, the judge said in his opinion. A reasonable jury could not find by clear and convincing evidence that the defendants acted with actual malice, or reckless disregard for the truth of their statements, the judge said.

According to the opinion, the judge also found that many of the statements are protected exaggeration: "At least two statements fall within the protected category of exaggeration or hyperbole. These statements include the speculation that 'most likely schools like Thomas Cooley will continue to defraud unwitting
students unless held civilly accountable' and that Cooley 'blatantly misrepresents and manipulates its employment statistics ... employing the type of ‘Enron-style’ accounting techniques that would leave
most for-profit companies facing the long barrel of a government indictment and the prospect of paying a
substantial criminal fine,'" the judge said. "Further, the statement that 'Cooley grossly inflates its graduates’
reported mean salaries' may not merely be protected hyperbole, but actually substantially true."

Read the full opinion here: http://www.abajournal.com/files/Opinion_Granting_SJ_Motion.pdf

One blog notes "plaintiffs losing defamation law suits tend to look a lot worse coming out of the suit than they did going in": http://kevin.lexblog.com/2013/09/30/defamation-suits-versus-social-media...

The Philadelphia Inquirer reports that a Ninth Circuit opinion "is the latest in a debate about whether multiple lawsuits alleging harm to patients from the same pharmaceutical product should be heard in state courts or federal courts."

According to the opinion in Romo v. Teva Pharmaceuticals, at issue was whether it was appropriate to remove mass torts to federal court under the Class Action Fairness Act's provisions for federal removal of "mass actions" when the claims of a 100 or more plaintiffs involve common questions of law or fact that the plaintiffs propose to try jointly.

The district court remanded to state court involving plaintiffs who say they were injured by the ingestion of propoxyphene, "an ingredient found in the Darvocet and Darvon pain medications, as well as in the generic brand counterparts," the majority opinion said. The Ninth Circuit majority agreed with the district court the plaintiffs' petition for coordination wasn't a proposal to try the cases jointly, only for coordination of discovery and other pretrial matters.

In contrast on the same issue of first impression, the Seventh Circuit in In re Abbott Laboratories involved plaintiffs seeking consolidation through trial, the Ninth Circuit majority said.

The majority also said in a footnote that a three-judge panel doesn't have the authority to revisit circuit precedent decided in 2009 case of Tanoh v. Dow Chemical Corp. that there is a presumption against removal to federal court, that any uncertainty should be construed in favor of remand, and that the proposal to try claims jointly must come from the plaintiffs. The Chamber of Commerce and others argued as amici, the majority's opinion said, that "we should revisit Tanoh and that it has lost its precedential value, urging that plaintiffs should not be able to structure their complaints to avoid federal jurisdiction in light of the purposes of CAFA to curb class action and mass action abuses that have occurred in state courts," the footnote in the opinion said. But the majority also said it approves of Tanoh and that other circuits, including the Seventh Circuit in Abbott, have cited it.

In contrast, the dissent said that the majority "creates a circuit split, for practical purposes, with the Seventh Circuit's decison in Abbott."

"If plaintiffs are masters of their complaints and can plead in a way to avoid federal jurisdiction, they remain free to 'game' the system to some degree, including by joining less than one hundred plaintiffs in many suits in state court, so long as those cases are separate," the dissent said. "... That leads me to recognize that the issue here, stated more precisely, is whether when plaintiffs seek to coordinate under California law many state actions, and urge the state court that coordination is necessary to avoid inconsistent judgments, that is a proposal for joint trial within the meaning of CAFA."

The full Ninth Circuit opinion is here: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/24/1356310_opn&di...
 

 

A California federal judge found Google "may have breached federal and California wiretapping laws for machine-scanning Gmail messages as part of its business model to create user profiles and provide targeted advertising," Wired reports. This putative class action is still at the early stage; the judge denied most of Google's motion to dismiss with leave for the plaintiffs to file an amended claim on the two claims she did dismiss.

Plaintiffs allege that Google violated both federal and California's wiretapping laws by acquiring the content of Gmail user's e-mails in order to send advertisements relevant to the senders or receipients of those messages, according to the opinion.

The judge did grant the motion to dismiss on the plaintiffs' Pennsylvania law claim regarding those who received emails from Gmail users because "Pennsylvania law protects only the sender of communication from wiretapping, not the recipient of that communication," according to the opinion.

The full opinion:

http://www.wired.com/images_blogs/threatlevel/2013/09/GoogleGmailOrder09...

The long-running putative class action between Google and the Authors Guild and other content producers over Google's project in which it has digitized over 20 million books was back in federal court yesterday.

Reuters reports that Judge Denny Chin appeared to favor the fair use argument by Google, which is seeking to immunize the claims of copyright infringement brought by the plaintiffs. Chin said that Google's project has helped people get information, including law clerks in his chambers, Reuters reported of the oral argument.

The Second Circuit ruled that Chin prematurely approved class certification for the authors without deciding if the fair use defense applies. While Chin is a circuit judge himself now, he retained jurisdiction, Reuters reported.

 

The New York Times has a report on a putatative class action filed against a Nevada psychiatric center alleging it had the practice of putting patients with mental illness onto buses to San Francisco and other California locales with one-way tickets. “In San Francisco, it’s been urban myth for decades that this sort of practice was going on,” San Franciso City Attorney Dennis Herrera told the New York Times and who is prosecuting the lawsuit. “But this is the first instance that I am aware of where we have been able to document a state-supported and state-sanctioned effort.”