FYI: 7th Cir Orders Disgorgement When Class Objectors' Private Settlements Were Exposed

The U.S. Court of Appeals for the Seventh Circuit recently held that settling an objection to a class action settlement in return for a private payment to the objector can be inequitable, and if so that disgorgement is the appropriate remedy.

 

A copy of the opinion is available at:  Link to Opinion

 

In November 2011, plaintiff Pearson filed a putative class action in federal court in Illinois alleging that defendants had made false claims about certain dietary supplements they manufactured and distributed.

 

In March 2013, two months before the settlement was submitted for approval to the trial court in Illinois, Randy Nunez filed his own putative class action against the same defendants in federal court in California. Nunez was stayed pending the Illinois federal court settlement negotiations ("Pearson I").

 

The parties in the Illinois suit negotiated a settlement and the trial court approved it over the objection of class member Theodore Frank in January 2014. Frank appealed and the Seventh Circuit reversed, noting the settlement was plagued by "fatal weaknesses" and amounted to a "selfish deal" between class counsel and defendants that "disserve[d] the class."

 

After the Seventh Circuit vacated the Pearson I settlement, Nunez asked the trial court in California to lift the stay and to name his lawyers interim counsel of the Pearson subclass Nunez hoped to represent. The California court granted both motions.

 

In April 2015 the parties in the Illinois litigation negotiated and submitted to the trial court for approval a new settlement known as "the Pearson II settlement." Before the trial court, three class members objected to the Pearson II settlement: Nunez, Steven Buckley, and Patrick Sweeney, who are all appellees in the present matter.

 

Nunez objection was based on the parties' refusal to include Nunez's counsel in their negotiation of the Pearson II settlement. Nunez moved to intervene in Pearson, pointing to his counsel's interim appointment order in Nunez. The Illinois federal trial court denied intervention but invited Nunez to object to the forthcoming Pearson II settlement when it was presented. Nunez objected in a four-page submission, he argued that his counsel was the only counsel "with authority" to settle his proposed class's claims and that defendants should not be permitted to auction off the case to the cheapest class counsel (without giving any reason to believe that had actually happened with the Pearson II settlement).

 

In another four-page submission, Buckley argued that class counsel were entitled to no more than 20 percent of the settlement fund in fees, not the 33 percent the proposed settlement promised them.

Sweeney objected pro se. In his four-page submission, he suggested implementing several measures to improve oversight of the settlement distribution process. Sweeney acknowledged this was not "the 'usual' procedure" but urged its adoption nonetheless.

 

The Illinois federal trial court approved the Pearson II settlement. All three objectors appealed. All three dismissed their appeals before briefing began.

 

The dismissals struck Frank as suspicious and possibly in bad faith and he sought to reopen the case by filing a motion for disgorgement of any payments made to objectors in exchange for dismissing their appeals. The trial court denied the motion for lack of jurisdiction. Frank appealed again.

 

The Seventh Circuit reversed, concluding that the trial court had jurisdiction to entertain Frank's motion and that Frank should have been allowed to pursue his theory. On remand, discovery showed that the three objectors had all received side payments in exchange for dismissing their appeals -- $60,000 each to Nunez and Buckley and $10,000 to Sweeney, totaling $130,000 —- while the class had received nothing. The Illinois trial court concluded that "the record failed to confirm suspicions of blackmail or other wrongdoing" and denied disgorgement.

 

Nunez, Buckley, and their counsel asserted that they had pursued their objections in good faith, not for the purposes of blackmail. The Illinois federal trial court could not say the same for Sweeney but found the question ultimately "irrelevant" because there was "no basis to conclude that the side settlements harmed the class" by taking money that had been earmarked for it. The trial court therefore denied Frank's motion.

 

Frank appealed and Nunez and Buckley appeared to defend their payments.

 

The Seventh Circuit began it review by defining the long-established principles of equity present in the law. Notably, it has long been axiomatic "that no person shall profit by his own wrong." Town of Concord v. Town of Goffstown, 2 N.H. 263, 265 (1820) A fiduciary's self-dealing is treated as a "constructive" fraud.  See, e.g., Joseph Story, Commentaries on Equity Jurisprudence 304 (1836). As a general rule, "wherever confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests, which he is bound to protect, he shall not be permitted to hold any such advantage." Id. at 320; see also, e.g., Snepp v. United States, 444 U.S. 507, 515 (1980) (same).

 

For application of these principles, the Seventh Circuit looked to Young v. Higbee Co., 324 U.S. 204 (1945) where the Supreme Court applied the principles to class litigation. In Young, Potts and Boag, two preferred shareholders of the bankrupt Higbee Company, objected to confirmation of the company's bankruptcy plan. The trial court confirmed the plan over their objection and while their appeal was pending, they sold their preferred shares along with the appeal to Bradley and Murphy for seven times the shares' market value. Young, another preferred shareholder, moved in the district court for an accounting of profits from the settlement. The motion was denied and Young appealed. The Supreme Court reversed the denial, finding that Potts and Boag's dismissal had been bought at the expense of the class of shareholders they purported to represent.

 

The critical step in the Court's reasoning in Young was to recognize that the appellants had taken on a fiduciary duty to the other shareholders similarly situated: "This control of the common rights of all the preferred stockholders imposed on Potts and Boag a duty fairly to represent those common rights."

 

The Seventh Circuit thus read Young to impose a limited representative or fiduciary duty on the class-based objector who, by appealing the denial of his objection on behalf of the class, temporarily takes "control of the common rights of all" the class members and thereby assumes "a duty fairly to represent those common rights."

 

The Seventh Circuit found that the present matter turns on a simple either/or proposition whose logic flows directly from Young.

 

The objectors in the present matter made general claims of general defects in the Pearson II settlement. "Either those objections had enough merit to stand a genuine chance of improving the entire class's recovery, or they did not. If they did, the objectors sold off that genuine chance which was the property of the entire class, for their own, strictly private, advantage. If they did not, the objectors' settlements of meritless claims traded only on the strength of the underlying litigation, also the property of the entire class, to leverage defendants' and class counsel's desire to bring it to a close. Either way, the money the objectors received in excess of their interests as class members "was not paid for anything they owned," and thus belongs in equity to the class."

 

The Seventh Circuit next examined the objections of Nunez and Buckely.

 

Nunez asserted that his counsel had "sole settlement authority" to settle the claims of the Pearson subclass he sought to represent in Nunez. That would have meant the Pearson II settlement was at best unenforceable as to that subclass and at worst void in its entirety. The Seventh Circuit noted, after the Pearson II settlement, the Nunez case was a dead letter, so "Nunez's only settlement leverage, like Buckley and Sweeney's, was the value of being a nuisance, getting in the way of defendants' and other plaintiffs' desires to put Pearson itself to rest."

 

Buckley contended that class counsel were being overcompensated at the class's expense to the tune of 13 percentage points of the common fund, or $975,000, in part as a result of billing for hours spent defending the same "selfish deal" the Court vacated in Pearson I.

 

In its assessment of the claims of Nunez and Buckely, the Seventh Circuit was quick to point out that what each did was "to advance these superficially plausible objections in the space of four pages each, light on citations to law and fact, and to sell them —- before speaking a word in their defense -— at discounts from face value ranging from 94 percent (Buckley) to 99.2 percent (Nunez)."

 

The Seventh Circuit believed this conduct "testifies that, whatever merit their objections might have had, the objectors themselves did not believe them or take them seriously, from the day they were filed to the day they were settled."

 

Finally, the Seventh Circuit addressed the appropriate remedy noting "In theory, the best remedy for the objectors' private appropriation of value that belonged to the class would be to pay those sums into the common fund for direct distribution to all class members." However, here, the distribution of $130,000 would be self-defeating because the administration costs would swallow the benefits.

 

Thus, the Seventh Circuit held the appropriate remedial framework was a constructive trust, which has long been used as a remedy for unjust enrichment obtained from a fiduciary's breach of duty, ordering payment to the Orthopedic Research and Education Foundation.

 

Accordingly, the judgment of the Illinois federal trial court was reversed, and the case remanded for further proceedings consistent with the opinion.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: Cal App Ct (2nd Dist) Holds Alleged Oral Promise of Refinance Not Enforceable

The Court of Appeal of the State of California, Second Appellate District, recently held that an alleged oral agreement to refinance a home equity loan is subject to the statute of frauds and is unenforceable.

 

A copy of the opinion is available at:  Link to Opinion

 

A homeowner obtained a home equity line of credit ("HELOC") for his property in March 2005. Homeowner alleges that before he accepted the HELOC, the loan officer for the lender promised him in an oral discussion that the 2005 line of credit "would provide a 10-year draw or advance period, subject to a balloon payment at maturity, but [homeowner] could refinance or re-amortize the loan into a 20-year amortized, principal and interest repayment period."

 

In early 2015 a new loan servicer took over the HELOC but borrower did not receive demand for the balloon payment on April 1, 2015. Later in 2015, the homeowner learned of his default on the HELOC when three of homeowner's monthly payments were returned. Homeowner pursued loss mitigation seeking "to proceed on the correct loan terms as he understood them."  Eventually the servicer offered a trial loan modification but homeowner rejected it "because it was not in accordance with the terms he was verbally promised" in 2005. Eventually, in November 2017, the property was sold to a third party at a trustee sale.

 

In March 2018, homeowner sued the lender, its assignee, and the loan servicer, alleging breach of contract, wrongful foreclosure and three fraud claims, all founded on the alleged oral commitment from the loan officer. The trial court sustained defendants' demurrer to homeowner's claims without leave to amend. Homeowner appealed.

 

The Appellate Court began its review by first addressing homeowner's breach of contract claim. The Court noted the statute of frauds provides that certain contracts are invalid unless they, or some of them, are in writing and signed by the party to be charged. (Civ. Code, § 1624, subd. (a).) "An agreement for the sale of real property or an interest in real property comes within the statute of frauds. That includes a promissory note and a deed of trust securing performance under the note." (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1503; Secrest v. Security National Mortgage Loan Trust 2002-2 (2008).

 

In addition, "[a]n agreement to modify a contract that is subject to the statute of frauds is also subject to the statute of frauds." (Secrest, at p. 553; ibid. [a forbearance agreement was subject to the statute of frauds because it modified the original promissory note and deed of trust the borrowers executed].

 

Homeowner argued the statute of frauds was not applicable because the oral agreement preceded the loan and trust deed and therefore did not and could not modify those documents. The Appellate Court disagreed, finding it is "incontrovertible that the alleged oral agreement changes—indeed, eliminates—an important term of the parties' written agreement. To be valid, it had to be in writing, and it was not."

 

In addition to the statute of frauds, the Appellate Court also found the oral agreement unenforceable because it was too uncertain and indefinite to be enforced. "Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable." (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1174.) Here, the oral agreement lacked many basic material terms such as the loan amount, interest rate, and amortization schedule, without which the intention of the parties could not be ascertained.

 

The Appellate Court next addressed the homeowner's fraud claims by noting the elements of fraud are misrepresentation, knowledge of falsity, intent to induce reliance on the misrepresentation, justifiable reliance on the misrepresentation, and resulting damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Here, homeowner's fraud claims all centered on a false promise by a loan officer. The Court found the allegations insufficient to state a fraud claim as they were too general and further, homeowner provided no allegation that it was defendants' intent not to perform the alleged promise when it was made.

 

Homeowner attempted to argue the oral agreement "is admissible as parole evidence to establish fraud in inducing [homeowner] to enter into the 2005 [HELOC] under the guise of false promises."

As you may recall, the parole evidence rule is a rule of substantive law, providing that "when parties enter an integrated written agreement, extrinsic evidence may not be relied upon to alter or add to the terms of the writing." (Riverisland, supra, 55 Cal.4th at p. 1174; see also Code Civ. Proc., § 1856.) There is an exception, however, for evidence of fraud.

 

However, the Court noted the fraud exception to the parole evidence rule does not come where the only question is whether plaintiff has sufficiently alleged a fraud claim in the first place. (Cf. Julius Castle Restaurant, Inc. v. Payne (2013) 216 Cal.App.4th 1423, 1442 ["A party claiming fraud in the inducement is still required to prove they relied on the parole evidence and that their reliance was reasonable."].)

 

Finally, the Appellate Court rejected homeowner's wrongful foreclosure claim noting because the alleged oral agreement is not an enforceable contract, its breach cannot support a claim of wrongful foreclosure. The Court also rejected homeowner's argument that the trial court abused its discretion in failing to grant leave to amend by noting homeowner did not provide the Court with the "further details" homeowner claimed he had to show the oral agreement was not subject to the statute of frauds.

 

Accordingly, the judgment of the trial court was affirmed.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: 9th Cir Holds Nevada Foreclosure Mediation Rules Provide Exclusive Means to Challenge Mediation

The U.S. Court of Appeals for the Ninth Circuit recently affirmed the dismissal of claims brought by borrowers on a residential mortgage loan alleging contractual and tortious breaches of the implied covenant of good faith and fair dealing against the loan's owner, trustee and servicer for purported failure to adequately participate in the state's foreclosure mediation program.

 

In so ruling, the Ninth Circuit held that the applicable state statute and Nevada Supreme Court's foreclosure mediation rules requirements that parties file requests for judicial review within ten days of the mediator's final statement provide the exclusive judicial remedy to challenge any mediation-related conduct, and cannot be evaded by filing of a separate action.

 

A copy of the opinion is available at:  Link to Opinion

 

After husband and wife borrowers ("Borrowers") fell behind on their mortgage payments, they invoked their rights to seek a loan modification with their mortgage lender under Nevada's foreclosure mediation program.  Homeowners trigger the mediation program by filing a petition in state court which prevents lenders from foreclosure while pending.  Nev. Rev. Stat. 107.086(3).

 

The Borrowers attempted mediation with their lender on three occasions between September 2014 and July 2018, but were ultimately unsuccessful.  On July 24, 2018, after the third mediation had failed, the mediator filed a report with the state court recommending that the Borrowers' mediation petition be dismissed.  After the Borrowers failed to timely request relief to avoid dismissal within ten days, as required, the mediation petition was dismissed on August 22, 2018.  The Borrowers did not appeal the dismissal, and on October 18, 2018, the appointed trustee on the deed of trust served the Borrowers with a Notice of Trustee's Sale. 

 

On November 1, 2018, the Borrowers filed a petition for judicial review of the failed July 2018 mediation, which was stricken in state court as untimely.  On the same date, the Borrowers filed this action in state court against the owner of the loan, trustee on the deed of trust and loan servicer (collectively, "Mortgagees") alleging that the Mortgagees acted in bad faith in the mediation process in breach of their contractual and tort-based duties arising from the implied covenant of good faith and fair dealing. 

 

The Mortgagees removed the action to federal court based on diversity jurisdiction and moved to dismiss the complaint for failure to state a claim.  After the Mortgagees' motion to dismiss was granted, this appeal followed.

 

Noting that the it had not yet been addressed by the Nevada Supreme Court in a precedential decision, the Ninth Circuit stated that the issue on appeal was whether a request for judicial relief under Nevada's Foreclosure Mediation Rules is the exclusive remedy under Nevada law for challenging a lender's conduct in the foreclosure mediation process.

 

The Appellate Court initially reviewed the parties' obligations under the Nevada foreclosure mediation program as codified in section 107.086, wherein the mediator is tasked with determining whether the parties complied with their requirements to participate in good faith if the mediation fails.  Nev. Rev. Stat. §§ 107.086(6), (8). 

 

If the mediator determines that the parties acted in good faith and no sanctions are warranted against the lender, it must submit a recommendation to the state court to dismiss the mediation petition.  Id.  While the statute contemplates that the parties will be afforded an opportunity to respond to the mediator's recommendation before the state court issues its order, it leaves those details to the rules promulgated by the Nevada Supreme Court under Section 107.086(12). 

 

Those rules provide that "[f]ollowing submission of the mediator's statement, within 10 days, either party may submit a request for appropriate relief" to the state court. Nev. F.M.R. 20(2). The state court must then issue an appropriate order either granting an agreed-upon loan modification, dismissing the petition, or sanctioning the lender. Id. 20(3). If the mediation petition is dismissed, a certificate is subsequently issued that (if there is no other legal obstacle) allows the lender to proceed with the foreclosure. Nev. Rev. Stat. § 107.086(8). 

 

Because these applicable judicial review provisions establish an "expedited" proceeding "to challenge compliance with the statutory attendance, production and good faith requirements" of the mediation program (Holt v. Regional Trustee Servs. Corp., 266 P.3d 602, 606–07 (Nev. 2011) (en banc)), the Nevada Supreme Court has stated that an immediate request "for judicial review is the exclusive remedy for a homeowner seeking to enforce an agreement reached in the mediation program."  Surgeoner- Jernigan v. CitiMortgage, Inc., 2012 WL 5857293, at *1 (Nev. Nov. 16, 2012) (unpublished "order of affirmance") (emphasis added). 

 

Accordingly, the Nevada Supreme Court has held that the Foreclosure Mediation Rules "necessitate strict compliance'" with the applicable deadline for seeking such judicial review, (Nationstar Mortg., LLC v. Rodriguez, 375 P.3d 1027, 1028 (Nev. 2016) (en banc) (internal citation omitted), and underscored the exclusive nature of that remedy by rejecting "a second proceeding before a different district court judge."  Holt, 266 P.3d at 608.

 

The Ninth Circuit concluded that Nevada law does not permit parties to evade the foreclosure mediation program's exclusive remedy to request judicial review within the applicable 10-day period under Nevada F.M.R. 20(2) by repackaging claims concerning the adequacy of the mediation process as state common-law claims, as the Borrowers did here.  Republican Attorneys Gen. Ass'n v. Las Vegas Metro. Police Dep't, 458 P.3d 328, 332 (Nev. 2020) ("'Where a statute gives a new right and prescribes a particular remedy, such remedy must be strictly pursued, and is exclusive of any other.'" (citation omitted)); accord Richardson Constr., Inc. v. Clark County Sch. Dist., 156 P.3d 21, 23 (Nev. 2007) ("[W]hen a statute provides an express remedy, courts should be cautious about reading additional remedies into the statute."). 

 

Accordingly, because the Borrowers failed to raise their claims in a timely request for review under the Foreclosure Mediation Rules, dismissal of the Borrowers' complaint for failure to state a cause of action was affirmed.

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: 9th Cir Holds Settlement Classes Generally Do Not Require Choice-Of-Law Analyses

The U.S. Court of Appeals for the Ninth Circuit recently held that it is generally not legal error for a trial court to hold that a settlement class satisfies class action predominance requirements, particularly for a class asserting a unifying federal claim, without first performing a choice-of-law analysis.

 

A copy of the opinion is available at:  Link to Opinion

 

A class action complaint was filed by consumers against a bank alleging the bank pressured employees to meet unrealistic sales quotas which resulted in a systematic exploitation of the consumers for profit. The consumers sued the bank in a putative class action alleging violations of the Fair Credit Reporting Act (FCRA), the Electronic Fund Transfer Act, California and Arizona statutory law, and common law.

 

The parties reached a settlement in the trial court that certified a settlement class, and the trial court approved the settlement.

 

In addressing the objections to the certification and the settlement, the trial court held that "[d]ifferences among state laws do not bar certification of the class here, as Plaintiffs have asserted a claim under a federal statute (the Fair Credit Reporting Act) that is equally applicable in all states."

 

Some objectors appealed.

 

On appeal, the objectors argued that the class did not satisfy Rule 23(b)(3)'s predominance requirement because the trial court did not do a choice-of-law analysis. Objectors cited the Ninth Circuit's opinions Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), and the later-reversed three-judge panel's opinion in In re Hyundai & Kia Fuel Economy Litigation, 881 F.3d 679 (9th Cir. 2018), rev'd en banc, 926 F.3d 539 (9th Cir. 2019).

 

The Ninth Circuit began its analysis by noting Federal Rule of Civil Procedure 23(b)(3) requires "that the questions of law or fact common to class members predominate over any questions affecting only individual members." To determine whether a class satisfies the requirement, a court pragmatically compares the quality and import of common questions to that of individual questions. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016).

 

Important in its analysis, a court must determine which questions are likely "to drive the resolution of the litigation." Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1134 (9th Cir. 2016). If a common question will drive the resolution, even if there are important questions affecting only individual members, then the class is "sufficiently cohesive to warrant adjudication by representation."  Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623–24 (1997).

 

Also relevant is whether a trial court certifies a class for settlement or for trial. In re Hyundai & Kia Fuel Econ. Litig. (Hyundai II), 926 F.3d 539, 558 (9th Cir. 2019) (en banc). Settlement may "obviate[] the need to litigate individualized issues that would make a trial unmanageable," id., making common questions more important in the relative analysis.

 

Next, the Ninth Circuit examined it prior rulings starting with Hanlon v. Chrysler Corp., where the Appellate Court affirmed the trial court's certification of a settlement class asserting various consumer protection causes of action without requiring a choice-of-law analysis. 150 F.3d 1011, 1023–24 (9th Cir. 1998), overruled on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). The Ninth Circuit held that a "conclusion as to which state's law applied was not necessary to the predominance determination in [Hanlon] because the law of each state at issue shared common questions that were central to the resolution of the claims and capable of resolution in one fell swoop."

 

The Ninth Circuit acknowledged it came to the opposite conclusion in Mazza where it held that the trial court abused its discretion by certifying a nationwide class for trial because the trial court erroneously applied California law to the entire class. Mazza, 666 F.3d at 589–90. In Mazza the Court identified material differences in California's governmental-interest test and the other relevant state laws, such as differing scienter and reliance requirements.

 

The Court stated a distinction between Hanlon and Mazza was that Hanlon affirmed a settlement class's certification whereas Mazza reversed a certification for trial. Together these cases align with the general rule that predominance is easier to satisfy in the settlement context. Hyundai II, 926 F.3d at 558.

 

Finally, the Ninth Circuit found the three-judge panel's and en banc panel's decisions in Hyundai most illustrative. There, consumers sued an automaker under California consumer-protection law. The trial court at first indicated that it was likely to deny class certification for trial. Hyundai I, 881 F.3d at 696 (citing Mazza, 666 F.3d at 590–92). But later, when asked to certify a class for settlement, the trial court determined that "such an [extensive choice-of-law] analysis," as Mazza required, "was not warranted in the settlement context" and certified the class. Id. at 700.

 

The Ninth Circuit's three-judge panel relied on Mazza to reverse on appeal and the en banc panel reversed on rehearing. The en banc panel clarified that "[t]he criteria for class certification are applied differently in litigation classes and settlement classes." Hyundai II, 926 F.3d at 556. In the settlement context, a district court assessing predominance "need not inquire whether the case, if tried, would present intractable management problems." Id. at 558. Reaffirming Hanlon, the en banc panel explained that common issues in the matter were the sort of "common course of conduct by [a] defendant" that can establish predominance. Id. at 559.

 

The Ninth Circuit held in Hyundai that, as a general rule, a trial court does not commit legal error by not conducting a choice-of-law analysis, despite variations in state law, before determining that common issues predominate for a settlement class. Id. at 562–63.

 

Applying Hyundai to the present matter, the Ninth Circuit held the trial court did not abuse its discretion in foregoing a choice-of-law analysis and certifying the settlement class where common questions predominate, especially where the class was unified by a claim under federal law. Specifically, the FCRA claim was important enough bind the class together and gave the best route to certification and recovery, thus driving the resolution.

 

Accordingly, the ruling of the trial court was affirmed.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Georgia  |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Tennessee   |   Texas   |   Washington, DC

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

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