Consumer Advocate Legal Update

The March KPA Monthly Update is out now, check your email!

Breanna Wilson — Wed, 17 Mar 2010 08:22:24 -0800

The latest edition of the KPA Monthly Update was released yesterday to subscribers.

This month's issue includes these articles from the KPA staff:

Katie McSweeney - "The California Supreme Court's Holding in Schacter v. Citigroup: A Minor Victory for Employers and a Cautionary Tale for Employees"

Neda Sargordan - "Medical Device Safety Act - A Fight Against Corporate Immunity"

Adam Kerns, J.D., C.P.A. - "Client Trust Accounting: A Snapshot of What Lawyers Need to Know"

Didn't get this month's edition? Join our mailing list now - it's free!

Is Toyota Facing the Largest Consumer Fraud Case in U.S. History?

Katie McSweeney — Tue, 16 Mar 2010 09:45:00 -0800

According to one expert, the answer might just be yes. That expert is University of Kentucky law professor specializing in product liability, Mary Davis who has been quoted as saying that the litigation mounting against Toyota in the wake of its recent recall of 8.5 million vehicles worldwide, “is bigger than anything I’ve ever seen.” In light of Davis’ work as a trial attorney in the far-reaching multistate asbestos litigation and her expertise regarding the Ford Explorer recall a decade ago, this statement packs a punch.

On February 9, 2010 the first suit was filed in Covington, Kentucky on behalf of Toyota owners in Kentucky, Ohio, Indiana, and Florida alleging that the company knowingly concealed defective, dangerous accelerator systems on its vehicles in order to protect its sales. The suit further alleges racketeering, mail fraud, and wire fraud, arising from Toyota’s representations that their vehicles were safe, when, by all appearances, it knew they were not. The Kentucky suit names defendants ranging from Toyota’s giant assembly plant in Georgetown, Kentucky (the automaker’s largest in North America) which was responsible for building the engines and “powertrain” components that are allegedly subject to acceleration problems, to Toyota Motor Credit Corp., and every facet of the corporation in between.

In the less than a month that has elapsed since the filing of the initial Kentucky case, at least 40 more cases have been filed by 22 law firm across 16 different states. On March 25, 2010 there will be a hearing in the U.S. District Court in San Diego regarding consolidation of the cases. An attorney for the Covington Plaintiffs believes that Kentucky has a good chance of hosting the multi-district litigation in light due to Toyota’s largest North American plant being located in Georgetown, Kentucky.

Where the litigation will be consolidated, and exactly how massive it will become remain to be seen, but one thing is clear, the cases that have been filed to date are just the beginning.

Are you the owner of a recalled Toyota or Lexis vehicle? Find out here: http://www.toyota.com/recall/

Overdraft Fee Cases Get the Green Light

Breanna Wilson — Mon, 15 Mar 2010 16:21:38 -0800

Bank overdraft fee cases across the country are moving forward after U.S District Judge James Lawrence King dismissed requests from banks to stop overdraft lawsuits. As reported in Saturday's Miami Herald, customers are taking action against many of the country's most popular banks for manipulating the way charges are posted to bank accounts, triggering overdraft fees to apply to accounts when they shouldn't.

If you have been a victim of deceptive banking practices, check out this blog for more information.

Keep Accurate Billing Records for Your Class Action Fee Application

Robert Drexler — Fri, 12 Mar 2010 11:03:44 -0800

If you think one of the benefits of a plaintiff’s practice is that you don’t have to keep timely and accurate time records, you are badly mistaken if you prosecute class actions. Class action settlements must be presented to a court for approval. Pursuant to recent Court of Appeal decisions in Kullar v Foot Locker Retail, Inc. 168 Cal. App. 4th 116 (2008) and Clark v American Residential Services LLC 175 Cal. App. 4^th 785 (2009), courts are increasingly scrutinizing settlements, including accompanying applications for attorneys’ fees and costs. (Despite any agreement by the parties to the contrary, the court has an “independent duty to evaluate the requested amount [in a class settlement agreement] and award only what is reasonable.” Garabedian v. Los Angeles Cellular Telephone Company 118 Cal.App.4th 123, 128. (2004)) If your fee application seeks a percentage of a common fund created for the settlement, courts will often require that the percentage requested be cross-checked with class counsel’s lodestar (hours billed x reasonable hourly rate). If the lodestar is less than the percentage fee requested, the court will determine what, if any, multiplier to award to arrive at an approved fee. See, PLCM Group, Inc. v. Drexler , 22 Cal.4th 1084, 1095-96 (2000); Ramos v. Countrywide Home Loans, Inc. 82 Cal. App. 4th 615, 625-26 (2000); Ketchum III v. Moses 24 Cal.4th 1122, 1132-36 (2000).

In order to present the court with an accurate lodestar, class counsel must track hours billed by timekeeper (i.e. attorney, paralegal, law clerk). And, courts are increasingly reluctant to take counsel’s word for hours billed via a summary declaration. For example, in a case recently handled by our office, the court issued a tentative ruling approving the settlement as fair and reasonable but deferred its decision on our fee application pending the submission of detailed billing records reflecting hours billed and billing descriptions for each entry. The court wanted to confirm that there was little or no duplication of efforts in the time records. The court also insisted that a detailed cost bill be submitted including copies of invoices reflecting payment. Because we were diligent in tracking our time and costs, we were able to provide the requested documentation to the court at the final approval hearing held two days later, resulting in prompt approval of the full fee request.

Shawn Khorrami Published in this Months Advocate Magazine

Breanna Wilson — Wed, 10 Mar 2010 09:53:18 -0800

KPA founding partner, Shawn Khorrami, was published this month in one of the top legal publications in Southern California, Advocate Magazine.

His article, titled "Representing Plaintiffs in Mass-Tort Cases," leads practitioners through simple tips and steps to remember when handling cases with a large client load.

Pass along to a colleague after reading, Shawn's advice is great for attorneys at all levels!

The Continued Debate on the Link Between Autism and Vaccines

Breanna Wilson — Tue, 09 Mar 2010 13:21:19 -0800

Interesting piece in the New York Times Research section on parental views of vaccines and the possible link to autism. This has been an ongoing debate, and scare, which has lead 1 in 8 parents to refuse a recommended vaccination for their young child.

Read the entire article.

'Metal on Metal' Hip Implants Cause Concern

Breanna Wilson — Fri, 05 Mar 2010 13:25:09 -0800

This article, "Concerns Over 'Metal on Metal' Hip Implants," from Wednesdays New York Times, highlights the ongoing discussion and alleged danger of using certain hip replacement devices.

Doctors aren't happy with the performance of many 'metal on metal' devices, and advise caution to other doctors and patents considering these systems. Some devices have been recalled, and many are being replaced due to continued complications. Learn more about metal hip implant devices, like the Zimmer Durom Cup.

What is Reasonable Reimbursement?

Abi Gnanadesigan — Fri, 05 Mar 2010 05:54:06 -0800

In a recent decision, California state court Judge Brett Klein ordered attorneys fees be paid to plaintiffs’ counsel in the form of gift cards for defendant’s retail store. What makes this order more unusual than the form of payment? Plaintiffs’ attorney is a male, and defendant is a women’s apparel retailer.

The class action asserted that Windsor Fashions was committing routine violations of the Song-Beverly Credit Card Act, and sought compensation for “all customers who, between November 29, 2006 and November 18, 2008, purchased merchandise from Defendant’s stores in the State of California, used a credit card to make the purchase(s), and whose address, E mail address or telephone number was requested and recorded by a Winsor Fashions employee.”

At the time of Judge Klein’s decision, preliminary approval of settlement had already been granted by Judge Susan Bryant-Deason, who was presiding over the case at the time. The preliminary approval order called for payment to the class in the form of $10 gift vouchers and $125,000 to class counsel in reasonable attorneys’ fees and costs.

On the day of the final approval hearing, Judge Bryant-Deason was ill, and Judge Klein took the bench in her absence. Judge Klein not only went against Judge Bryant-Deason’s preliminary approval order and changed the terms of the settlement after the final approval hearing, but according to state Commission on Judicial Performance, he “engaged in a pattern of sarcasm and improper remarks toward the attorneys.”

Judges generally have discretion to determine what is and what is not considered fair and reasonable for attorneys’ fees. However, judges do not have unfettered ability to rule outside the scope of acceptable practice. The state Commission on Judicial Performance ultimately barred Judge Klein from presiding over future court cases and from receiving any state court-referred work.

Ninth Circuit Reverses Dismissal of State-Law Commute Time Claim in Rutti v. Lojack Corp.

Matt Bailey — Thu, 04 Mar 2010 08:16:04 -0800

On March 2, 2010, the Ninth Circuit reversed, in part, a district court’s grant of summary judgment in Rutti v. Lojack Corp., 2010 U.S. App. LEXIS 4278 (9th Cir. 2010). The case – a proposed class action/FLSA collective action brought on behalf of Lojack alarm installation technicians – challenged Lojack’s failure to pay for time spent commuting to client locations. The district court granted Lojack’s summary judgment, holding that the plaintiff’s commute was not compensable as a matter of law under both California law, as well as under the Portal to Portal Act (a component of the FLSA).

To read the rest of this post, and get the latest information on class action issues in California and nationwide, subscribe to www.baileydaily.com

KPA Continues Initiative to Develop Plaintiff Attorneys through Sponsorships

Breanna Wilson — Tue, 02 Mar 2010 10:04:43 -0800

In a press release issued last Friday, KPA announced their sponsorship and leadership commitments for the first half of 2010.

Not only devoting money to sponsor events such as the Capitol Hill Reception at the upcoming AAJ Minority Caucus Lobby Days and the Keynote Lunch featuring Roger Dreyer at the CAOC Tahoe Seminar, KPA also vows to dedicate thought leadership through judging the AAJ Student Trial Advocacy Competition, presenting at the CAOC Tahoe Seminar, and contributing articles to the AAJ Women's Caucus and Minority Caucus Newsletters.

Look for the KPA attorneys at each of these amazing events. They continue to dedicate themselves to developing programs that create discussion between plaintiff attorneys across the country, will you?

Look for our attorneys at these upcoming events!

Breanna Wilson — Fri, 26 Feb 2010 05:07:16 -0800

AAJ's Minority Caucus Lobby Days in Washington, DC - March 10 - 11
CAOC's Tahoe Ski Seminar - March 19 - 20
CAOC's Women Caucus Reception in Sacramento, CA - May 3
CAOC's Lobby Day in Sacramento, CA - May 4

The Choice-of-Law Problem in Multidistrict Litigation

Crystal Yagoobian — Wed, 24 Feb 2010 05:56:44 -0800

When civil actions involving one or more common questions of fact are pending in different districts, the Judicial Panel on Multidistrict Litigation (Panel) may transfer those actions to a single district for coordinated or consolidated pretrial proceedings under the Multidistrict Litigation (MDL) process. 28 U.S.C. § 1407. When this happens, a fundamental inquiry arises: Which circuit’s law will the transferee court apply to the class certification determination? District courts are divided into two camps on this issue: one group following the law of the courts from which they were transferred (transferor courts) while the other group applies its own circuit’s laws. The MDL assignment is technically for pretrial proceedings only, and unless the transferred cases are resolved during pretrial proceedings, the Panel must remand the cases back to the transferor courts. 28 U.S.C. § 1407(a).

The justification for the first approach (district courts following the law of the transferor court) has been that the Panel is obligated to remand any transferred cases back to the transferor courts for trial. In other words, class certification is not only a pre-trial issue: class certification requirements are entangled with trial considerations because the trial court will need to examine the facts and law raised by the class claims. Further, given that Section 1407 requires cases to remand to the transferor courts for trial, the transferee court’s authority ends once the pretrial proceedings are completed. The case that best embodies this principle is In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 241 F.R.D. 435 (S.D.N.Y. 2007) wherein the court reasoned, “[i]t would be neither just nor efficient to apply the law of this Circuit in considering class certification, and then force the transferor court to try a class action that it might never have certified.” Thus, the court applied the law of the transferor court in examining class certification.

The justification for the second approach (district courts applying their own circuit’s laws) is that there is only one body of federal law and there is ultimately a single proper interpretation of federal law. At its core, this approach has considerations of consistency and efficiency in mind. One of the more important current cases exemplifying this concept is the Central District of California’s decision in In re Live Concert Antitrust Litigation, 247 F.R.D. 98 (C.D. Cal. 2007). The court in Live Concert held that the transferee court’s law applies to class certification determinations in the MDL context. The Live Concert court noted that “circuit and district courts, including the Ninth Circuit, have uniformly applied the law of the transferee circuit in MDL proceedings involving federal law.”

Unfortunately, so long as the current MDL remand procedure exists, both approaches have their inherent problems since the remand procedure leads to two highly flawed approaches to the choice-of-law issue. Neither approach provides an adequate answer to the choice-of-law question: either the transferee district court abides by its own circuit’s law and faces the risk that the transferor district court or circuit will overturn the decision, or it makes a determination that may be incorrect under its own circuit’s precedent to avoid a problem upon remand.

Diabetes Drug Avandia Still Causing Debate

Breanna Wilson — Tue, 23 Feb 2010 10:11:14 -0800

Coverage on the popular GlaxoSmithKline medicine, Avandia, has recently sparked due to a new Senate report. Although hundreds of individuals suffer each month from the dangerous side affects associated with the drug, the drug still remains on the market. A better look at these latest developments can be read in this NY Times article - "Research Ties Diabetes Drug to Heart Woes".

Shawn Khorrami and James Kenna of KPA have been appointed to the JCCP Steering Committee for Avandia, and will continue to fight on behalf of those injured individuals.

A few minutes with KPA Attorney Jim Kenna

Breanna Wilson — Fri, 19 Feb 2010 05:57:27 -0800

Get to know KPA Senior Associate, Jim Kenna:

Q: Where are you from? A: I was born and raised in a small village in Ireland.

Q: How long have you been in the United States? A: I moved to California in 1984.

Q: Are you on Team Conan or Team Leno? A: Most definitely....Team Conan!

Q: Best song of all time? A: "I still haven't found what I'm looking for" by U2

Q: Starbucks drink of choice? A: Grande latte

Q: Favorite Superhero? A: Batman

Q: Favorite sports team? A: Manchester United - English Premier League Soccer team.

Q: Saying to live by? A: "The true test of character is doing the right thing, when nobody is looking."

Q: Favorite television show? A: Boston Legal.

Q: Favorite fictitious lawyer? A: Atticus Finch from To Kill a Mockingbird.

Q: Tell us a little bit about your experience building houses in the Lower Ninth Ward of New Orleans with other KPA employees through LowerNine.Org. A: It was one of the most rewarding and fulfilling experiences of my legal career to date. Not only am I representing these victims of Katrina in the courtroom, but I was also able to make a tangible difference for some families by physically helping to construct a home for them.

Q: What made you want to practice law? A: I wanted a career that was intellectually challenging and at the same time could effect positive change in society.

Q: Favorite part about being a plaintiff lawyer? A: It is the idea that we are always fighting for the underdog and trying to even the playing field for those less fortunate.

Q: Any advice to clients? A: Be patient because litigation can be a drawn out process. Be upfront about anything negative in your case, and we will work hard for you.

Q: Advice to first year attorneys? A: Ask questions, but also have done some research into potential answers. Don't fear being wrong. Eventually you will find your niche in your firm and your profession.

Jim focuses on mass tort and pharmaceutical litigation. He can be reached at JKenna@kpalawyers.com.

KPA Monthly Update February Edition Available Online

Breanna Wilson — Wed, 17 Feb 2010 16:31:23 -0800

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California Supreme Court Grants Review in Zhang v. Superior Court

Bevin Allen — Tue, 16 Feb 2010 18:26:43 -0800

On February 10, 2010, the California Supreme Court granted review of the decision rendered by the Court of Appeal (Fourth Appellate District, Division Two), in Zhang v. Superior Court,178 Cal.App.4th 1081 (review granted, ordered depublished February 10, 2010). In Zhang, the Court of Appeal determined that an insured was not precluded from bringing a cause of action under California’s Unfair Competition Law (“UCL”) (Cal.Bus.Prof. §17200, et seq.). This decision directly contradicted insurance companies’ long-standing argument that the California Supreme Court holding in Moradi-Shalal v. Fireman’s Fund Ins. Companies, 46 Cal.3d 287 (1988), precludes all private causes of action against insurers.

In ruling for the insured, the California Court of Appeal determined that Moradi-Shalal did not bar a UCL “fraudulent” prong claim against an insurance company, and on a writ petition, reversed a trial court order holding otherwise. Zhang v. Superior Court, 178 Cal.App.4th 1081 (2009). The Court of Appeal’s decision turned on the allegations of the Plaintiff’s claims that the insured had “made fraudulent misrepresentations and promulgated misleading advertising with respect to its intentions to ‘pay provide coverage in the even the insured suffered a covered loss.’” Id. at 1089.

Should the Supreme Court uphold the Court of Appeal’s decision in Zhang, consumers will celebrate a small victory. Essentially, insurance companies will no longer be protected by such a broad umbrella under Moradi-Shalal, and may be held liable for claims of unfair conduct and false and misleading advertising.

Don't Wait! Register for the CAOC Tahoe Ski Seminar TODAY!

Breanna Wilson — Sun, 14 Feb 2010 10:30:35 -0800

PDF registration

Matt Bailey Published in the Employment Law Strategist

Breanna Wilson — Fri, 12 Feb 2010 04:00:06 -0800

In this month's edition of Employment Law Strategist, you can find Matt Bailey's article "Class Litigation of Meal and Rest Period Claims: May Meal and Rest Period Claims Be Certified in a Post-Brinker World?'"

In his article, Matt reviews Brinker Restaurant Corp. v. Superior Court, California's Fourth District Court of Appeal, and how it substantively altered the wage and hour landscape through its conclusion, and how California meal and rest period regulations only impose a passive obligation on employers to make breaks available.

For the latest on California and National Class Action news, follow Matt's blog - the Bailey Class Action Daily.

Office Max Managers - You may be owed unpaid wages!

Breanna Wilson — Thu, 11 Feb 2010 05:21:43 -0800

Current and past Office Max Managers may be owed unpaid wages if they were classified as a Manager and performed non-managerial duties more than 50% of the time.

All employees have enforceable rights and deserve to be paid fairly.

KPA CAN HELP. We are experienced in all aspects of employment law and have extensive knowledge in litigating employment-related claims such as employment discrimination and misclassification, and wage and hour violations.

If you, members of your family, or friends may have a claim, contact us immediately.