Author Archives: David S. Osterman

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The Surge of “TCCWNA” Class Actions in New Jersey

Until recently, the New Jersey Truth-In-Consumer Contract Warranty and Notice Act (TCCWNA or the Act) was a relatively obscure consumer protection statute that sat dormant on New Jersey’s books for almost three decades. That all changed when a series of cases opened the floodgates to consumer class action litigation. In April, the New Jersey Civil Justice Institute issued a staggering prediction that the wave of TCCWNA lawsuits against retailers and other defendants could double in size over the next two years. Building Up TCCWNA The…

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Supreme Court Set to Hear Cases on “No-Injury” Class Actions

In November, the U.S. Supreme Court will hear oral argument in two cases that could have broad implications on class action litigation.  Spokeo, Inc. v. Robins, which will be argued on November 2, 2015, will address whether the publication of inaccurate personal information in violation of the Fair Credit Reporting Act (FCRA) is alone sufficient to confer upon a plaintiff Article III standing.  The second case, Tyson Foods, Inc. v. Bouaphaked, set for November 11, 2015, concerns the standard for class certification under…

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Gym Class Dismissed: Monthly Gym Memberships Not Governed by TILA

As anyone who has ever seen laundry draped on an unused treadmill can attest, there is a big difference between investing in exercise equipment and investing the time to actually use the equipment. The same holds true for gym memberships. Not surprisingly,  there are many people who join gyms with the best intentions to exercise regularly who then later regret signing a long term contract to belong to a gym they no longer use. Also, not surprisingly, most states have some sort of consumer protection…

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Rough Justice Is Not Justice: Public Citizen’s Challenge to Third Circuit Ascertainability Rule

As we discussed recently, successful class certification in the Third Circuit requires a showing that the proposed class is ascertainable in an objective, reliable, and administratively feasible way.  Several recent decisions from the Third Circuit have reaffirmed that, if the proposed class cannot be objectively defined, and class membership cannot be reliably and feasibly determined, then class certification is not appropriate. In one of those recent cases – Carrera v. Bayer Corp., 2013 U.S. App. Lexis 17479 August 21, 2013) – Public Citizen…

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Reliable Evidence Required To Show Class Ascertainability

The Third Circuit recently reaffirmed its prior pronouncement that an “essential prerequisite” to class certification is a showing by a preponderance of the evidence that the class is ascertainable in a way that is both “objective,” as well as “reliable and administratively feasible.”  In doing so, the Court stated bluntly that class membership cannot be based on the “say-so” of putative class members. In Hayes v. Wal-Mart StoresInc., 2013 U.S. App. Lexis 15959 (August 2, 2013), the Third Circuit granted an…

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To Call (Two) or Not To Call (Any) Experts: That Is No Longer a Question

The New Jersey Appellate Division recently handed down two decisions that give trial lawyers greater freedom to try their cases when it comes to the selection and presentation of expert testimony. In McLean v. Liberty Health System, A-1793-11, a medical malpractice case, the plaintiff retained two emergency room medical experts to opine that the plaintiff’s ER treatment deviated from the standard of care. The trial court granted the defense counsel’s unwritten and off-the-record request that each side be limited to one expert per specialty.…

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CAFA Removal: Damage Waiver Stipulations Do Not Defeat Federal Court Removal Jurisdiction

Under the Class Action Fairness Act (CAFA) a state court class action can be removed if the claims of the potential class members exceed $5 million in the aggregate. Some plaintiffs, to avoid removal, state in their complaint that the total damages sought are less than $5 million, and in the case of Standard Fire Insurance Co. v. Knowles, the plaintiff, Greg Knowles, even attached a signed stipulation to that effect. The defendant removed, and the Arkansas district court remanded, based upon the stipulation.…

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Third Circuit Set To Clarify Method for Determining Corporate Citizenship of Holding Companies for Purposes of Removal

There is a split of authority among the district courts in the Third Circuit concerning how to determine the corporate citizenship of a Limited Liability Company (‘LLC”) in the context of evaluating removal jurisdiction. The U.S. Court of Appeals for the Third Circuit is set to resolve the issue with a case now before the court. This issue arises from multiple cases alleging birth defects related to thalidomide – a drug developed, produced and distributed by defendant GlaxoSmithKline, LLC (“GSK”). As experienced product liability practitioners…

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Potential Supreme Court Split Over Motorist Privacy Law Exception in Class-Action Solicitations

A group of South Carolina residents urged the high court to prohibit attorneys from gathering personal information from the state’s Department of Motor Vehicles to help find possible plaintiffs for class-action lawsuits. This case before the U.S. Supreme Court — Edward F. Maracich et al. v. Michael Eugene Spears et al., case no.12-25 — involves the application of the Driver’s Privacy Protection Act (DPPA), a federal law that generally blocks state motor vehicle bureaus from disclosing drivers’ personal information without express consent of the…

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Seller Beware: Dealership’s Failure to Disclose Used Car Was a ‘Loaner’ Leads to Treble Damages and Attorneys Fee Award

In what appears to have been a case of first impression under New Jersey law, a Morris County judge ruled that a used car dealership’s failure to disclose that a used car was a loaner car and not merely a “one-owner, turned-back leased car” was actionable under the New Jersey Consumer Fraud Act. In 2009, the plaintiff purchased a used 2008 Mercedes Benz ML 350 from defendant Millennium Mercedes Benz in Bridgewater, New Jersey, understanding that the car had been returned to the dealership by…

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