Class Action

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Our team mission is to prevent the plaintiff’s bar from abusing the class action procedure.  The class action device was intended as an exception to the usual rule that litigation is conducted by named individual parties. The class action procedure was never designed to enlarge and modify substantive rights. Our class action team serves as defense counsel for a wide range of clients, from Fortune 500 companies to sole proprietorships, in cases filed across the nation in more than eighteen different jurisdictions. For each matter, we provide a litigation plan tailored to meet client objectives in a cost effective manner. When feasible, we prepare motions to limit the scope of the issues presented and to curtail the cost of discovery. We are experienced in all phases of class action litigation, including dismissal, denial of certification, summary judgment, decertification, jury verdict and appeal.

Class Action Experience

Our team has defended more than 150 class actions alleging a wide range of legal theories, including the following types of alleged violations or infractions:

  • Telephone Consumer Protection Act (TCPA)
  • Consumer Fraud
  • Data Breach/Privacy
  • Mass Tort
  • Labor & Employment

Additionally, our class action attorneys have defended over 40 class action lawsuits within the labor and employment industry, including matters involving the Fair Labor Standards Act (FLSA), various state wage and hour laws, discrimination and wrongful discharge, and ERISA employee benefit claims.

Recognitions

U.S. News - Best Lawyers "Best Law Firms" - Mass Tort Litigation/Class Actions – Defendants – Tier 3 – Chicago Metropolitan Area

Results

  • Achieved a significant victory from Judge Posner of the Seventh Circuit vacating class certification. In the opinion, the Seventh Circuit raised the bar that class counsel must clear in order to satisfy the adequacy prong for class certification. To secure this significant result, the class action team took an unconventional approach by raising only the issue of adequacy of class counsel in our brief. 
  • Obtained opinion from Eleventh Circuit holding that while the class searched for an adequate plaintiff, class allegations were not tolled by the previous lawsuit against the same defendant and same legal theory. 
  • Before filing an answer or any discovery, defeated certification of housing discrimination case by successfully moving to strike the class allegations.

  • Won judgment on res judicata grounds, that a prior final judgment on the merits in favor of a parent corporation barred plaintiff’s suit against its subsidiaries. 
  • Secured dismissal of plaintiff’s class action lawsuit for lack of standing. The court agreed with defendant’s argument that under Florida law, the plaintiff could not cure its initial lack of standing through an Amendment to a Purchase Agreement executed 6 months after the lawsuit was filed. 

Telephone Consumer Protection Act (TCPA) RESULTS

  • Unconventional strategy in 2010 of filing first petition before the FCC seeking relief from Solicited Fax Rule under TCPA, culminated in the DC Circuit Court holding that the Rule was invalid.
  • Secured Seventh Circuit opinion affirming denial of class certification, motion to amend and the intervener’s petition for leave to intervene.
  • Successfully achieved an appeal before the Illinois Appellate Court, which held, for the first time, that a defendant who hired the fax broadcaster was not liable as a matter of law for violations of the TCPA, because the fax broadcaster exceeded its authority. (This victory was secured after obtaining an order from the Illinois Supreme Court directing the Appellate Court to vacate its earlier denial of the defendant’s interlocutory appeal and to hear the appeal).
  • Defeated class certification on multiple grounds, including adequacy, typicality, predominance, and superiority in 42 page opinion.
  • Co-tried a class action to jury verdict and judgment for defendant.
  • Procured judgment as a matter of law that a magazine renewal with a questionnaire was not an “advertisement" within the meaning of TCPA.

  • Defeated class certification on the due process grounds that the plaintiff had not, and could not, successfully identify the members of the proposed class, i.e., the purported fax recipients. This junk fax/consumer fraud class action was brought arising from 1.7 million faxes with alleged statutory damages of $850 million.
  • Defended the first Telephone Consumer Protection (TCPA) lawsuit, in which Cook County Judge McGann indicated that he would not certify the alleged class at a time when over 100 other TCPA class action lawsuits had been assigned to him. At that time, McGann was presiding over 100 TCPA cases in Cook County.

Consumer Fraud Results

  • Awarded summary judgment against a multi-count class action alleging that defendant breached its lifetime warranty for steel siding that peeled and blistered within 12 years of installation.  
  • Prior to responsive pleading, settled on an individual basis a class alleging that defendant's fast food restaurants  had misled consumers, because the cost of its extra value meal was greater than the sum of each of the components.  
  • Defendant voluntarily dismissed client - manufacturer of softball bat components - shortly after filing motion to dismiss a claim for consumer fraud.
  • Successfully defeated class alleging a subsidiary of an international food manufacturer that allegedly misrepresented that its “all natural” bar contained an ingredient previously found by the FDA to be misbranded. 
  • Representing a manufacturer of an FDA regulated medical device against a class alleging that it had misled its purchasers regarding the efficacy of the product. 
  • Representing a privately held seller of costume jewelry from a putative class of more than 12 million purchasers alleging false advertising.  Our motion to dismiss piercing the corporate veil claims from 30 page complaint was granted. 
  • Representing a $500M distributor of consumer electronics from a class of purchasers alleging that false advertising in connection with the sale of tablet. 

Data Breach/Privacy results

  • Affirmed judgment on a motion to dismiss in favor of a national testing agency and against plaintiffs who alleged a putative class of 16 million persons, claiming that their personal identifiable information had been sold without authorization. 
  • Obtained judgment and defeated class certification in FACTA class action lawsuit. The court held that although the plaintiff was personally liable under the cardholder agreement, the entity cardholder was the “consumer”; therefore, there was no private right of action for purposes of the business transaction alleged in the complaint.

Mass Tort results

  • Defeated the plaintiff’s motion for class certification on grounds that individual fact questions predominated in a mass tort lawsuit that was filed by 100 residents who sued the private operator of the Milwaukee Metropolitan Sewerage District.
  • Representing university in class action alleging defendants knowingly concealed dangers associated with concussions that result from playing college football.
  • Successfully represented industrial park owner from class action brought by homeowners alleging contaminated ground water.

Labor & Employment results

  • Achieved summary judgment in the SDFLA in a vending operator’s favor when a route driver employee alleged he and his fellow route drivers should have been paid overtime for their work; however, court held the Motor Carrier Exemption prevailed in this situation (i.e., the trucks had a GVWR of 10,001+ lbs and the goods were interstate commerce) putting the employees under the Dept. of Transportation purview and not the Dept. of Labor and the FLSA overtime laws.
  • Represented a nationwide food manufacturer in defense of a collective action under the Fair Labor Standards Act and a class action under multiple state wage laws alleging failure to pay for all hours worked and applicable overtime for a class of thousands of employees.
  • Representing an employer with multiple locations against an Equal Employment Opportunity Commission (EEOC) charge seeking class certification for pattern and practice discrimination of hundreds of employees.
  • Representing an employer from putative class action alleging improper background checks of thousands of employees or applicants in violation of FCRA.
  • Represented a large Regional Bank in defense of a collective action under the Fair Labor Standards Act and a class action under WI state wage laws alleging failure to pay for all hours worked and applicable overtime for a class of hundreds of employees.‎ Secured voluntary dismissal of class and collective action claims within three months of initial filings.

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