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Seventh Circuit Weighs in on Offers of Judgment

View David Wright's Complete Bio at robinsonbradshaw.comIn this space, we concentrate on class action decisions in the Carolinas, as well as Fourth Circuit and United States Supreme Court precedent. Occasionally, though, we venture beyond these jurisdictions to highlight issues of particular note, including those where courts are divided. We’ve previously reported here how offers of judgment interact with mootness. In Campbell-Ewald Co. v. Gomez, the United States Supreme Court held that an unaccepted settlement offer, even if it offers all relief sought in the case, does not render a case moot when the affected party seeks relief on behalf of a class. Last Friday, the Seventh Circuit considered a question not resolved by Gomez: What happens when the named representative accepts a Rule 68 offer of judgment? Can he still appeal the denial of class certification? Like the question of appellate standing upon which the Supreme Court accepted certiorari in Microsoft, the answer is significant.

In Wright v. Calumet City, Illinois, No. 14-cv-10351 (7th Cir. Feb. 17, 2017), the Seventh Circuit acknowledged a split of authority on this question: “Where the Rule 68 offer is accepted but by its terms exempts the class certification issue, courts are divided as to whether the plaintiff retains a concrete interest sufficient to meet the case or controversy requirement of Article III.” The Seventh Circuit noted that Wright’s claim to standing was particularly strained because he accepted the Rule 68 offer without reservation, and he preserved no interest in receiving an incentive award. Wright argued that he had a sufficient interest in the case because his offer of judgment did not include attorney’s fees for the class claim (as opposed to his individual claim), but – as the Seventh Circuit observed – Lewis v. Continental Bank Corp.,  494 U.S. 472, 480 (1990) holds that “an interest in attorneys’ fees is, of course, insufficient to create an Article III case or controversy where none exists.” The court noted that there is some tension between Lewis and Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), in which the Supreme Court allowed plaintiffs, whose individual claims had been satisfied, to appeal the denial of class certification based on their asserted interest in shifting attorney’s fees to the class members. But the court distinguished Wright’s case from Roper on the ground that Wright had accepted the Rule 68 offer “as satisfaction of all of the relief that he sought in the district court.” In Roper, by contrast, the district court entered judgment for the plaintiffs in the amount tendered by the defendant, even though the plaintiffs had refused that offer. Thus, even under Roper, Wright’s claims are moot.

There will likely be more permutations on the Rule 68/mootness issues, so stay tuned.

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Recent Filings – January Digest

View Amanda Pickens’ Complete Bio at robinsonbradshaw.com Not every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of January’s filings:

Hieber v. The Asset Recovery Group, LLC, et al., No. 3:17-cv-00214 (D.S.C. January 24, 2017) (putative class action brought on behalf of consumers residing in South Carolina alleging violations of the Fair Debt Collection Practices Act).

Hart v. Barbeque Integrated., No. 2:17-cv-00227 (D.S.C. January 24, 2017) (collective and class action alleging defendant restaurant failed to pay tipped employees minimum wage and overtime compensation in violation of FLSA and state wage and hour laws).

Foster, et al. v. Livanova PLC, et al., No. 3:17-cv-00218 (D.S.C. January 24, 2017) (products liability class action lawsuit alleging defendants’ medical device exposed plaintiffs to potentially fatal bacteria during open chest surgery).

Turner, et al. v. Condustrial, Inc., et al., No. 3:17-cv-00205 (D.S.C. January 23, 2017) (putative class action and purported collective action brought under FLSA and state wage and hour laws alleging defendants misclassified employees as independent contractors to avoid paying overtime compensation or providing benefits).

Williams, et al. v. G4S Secure Solutions (USA) Inc., No. 1:17-cv-00051 (M.D.N.C. January 20, 2017) (collective and class action alleging defendant failed to pay straight time and overtime compensation to non-exempt hourly security officers in violation of FLSA and state wage and hour laws).

Jones, et. al. v. Wectec Global Project Services, et al., No. 3:17-cv-31 (W.D.N.C. January 20, 2017) (putative class action and purported collective action brought under FLSA and state wage and hour laws alleging defendants failed to pay current and former hourly employees overtime compensation).

Jones v. Wectec Global Project Servs., et. al., No. 3:17-cv-00031 (W.D.N.C. January 20, 2017) (putative class action and purported collective action alleging defendant’s 9/80 workweek plan violates FLSA and state wage and hour laws).

Levy, et. al. v. Charlotte School of Law, LLC, et. al., No. 3:17-cv-00026 (W.D.N.C. January 19, 2017) (in addition to Barchiesi, this is the second putative class action against Charlotte School of Law for alleged misrepresentation of its ABA accreditation status to prospective and current students).

Strak, et. al. v. Managed Recovery Systems, Inc., et. al., No. 6:17-cv-00159 (D.S.C. January 18, 2017) (purported class action alleging Managed Recovery Systems improperly used mail, telephone and facsimile in its debt collection efforts in violation of the Fair Debt Collection Practices Act).

Cunningham v. ShopperLocal, LLC, No. 1:17-cv-00024 (M.D.N.C. January 10, 2017) (putative class action brought under the Telephone Consumer Protection Act alleging defendant called plaintiffs using an auto-dialer to sell advertising space without plaintiffs’ consent).

English, et. al. v. Café Enterprises, Inc., No. 3:17-cv-00038 (D.S.C. January 5, 2017) (putative class action and purported collective action brought under FLSA and state wage and hour laws alleging defendant restaurant failed to pay tipped employees minimum wage while performing side work at the beginning and end of their shifts).

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Recent Filings – December Digest

View Amanda Pickens’ Complete Bio at robinsonbradshaw.com

Barchiesi, et. al. v. Charlotte School of Law, LLC, et. al., No. 3:16-cv-00861 (W.D.N.C. December 22, 2016) (putative class action against Charlotte School of Law for alleged false and misleading representations related to the school’s failure to provide current and prospective students with information about its noncompliance with ABA standards for accreditation).

Whitehead v. Lutheran Homes of South Carolina, Inc., No. 3:16-cv-03937 (D.S.C. December 16, 2016) (putative class action and purported collective action brought under FLSA and state wage and hour laws alleging defendant failed to pay healthcare workers overtime).

RJF Chiropractic Center, Inc., v. BSN Medical, Inc., et. al., No. 3:16-cv-00842 (W.D.N.C. December 14, 2016) (putative class action brought under the Telephone Consumer Protection Act alleging defendant faxed advertisements without plaintiffs’ consent).

Hebert, et. al. v. Santa Fe Natural Tobacco Co., et. al., No. 1:16-cv-01390 (M.D.N.C. December 7, 2016) (putative class action alleging tobacco company deceptively marketed their Natural American Spirit cigarettes as “natural” and “additive-free”).

Triplett v. Rooms To Go North Carolina Corp., No. 5:16-cv-00926 (W.D.N.C. December 1, 2016)  (putative class action alleging breach of contract and UDTPA claims brought by North Carolina customers owning furniture that was not professionally treated with a leather or fabric protectant, despite purchasing an add-on fabric or leather protection plan from Rooms To Go).

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Recent Filings – November Digest

View Amanda Pickens’ Complete Bio at robinsonbradshaw.com Not every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of November’s filings:

Anstrom v. Best Logistics Group, Inc., No. 1:16-cv-01365 (M.D.N.C. November 29, 2016) (purported class action and collective action brought under FLSA and state wage and hour laws by freight brokers alleging defendant misclassified employees and failed to pay overtime).

Pasqual v. Cempra, Inc., et. al., No. 1:16-cv-01356 (M.D.N.C. November 22, 2016) (putative class action filed on behalf of shareholders of Cempra, Inc., a clinical-stage biopharmaceutical company, against the company and its officers and directors alleging violations of Sections 10(b) and 20(a) of the Exchange Act arising out of a one-day stock price decline of 61% after the FDA issued a report analyzing Cempra’s clinical development drug).

Autry v. Charlotte Palm Corp., No. 3:16-cv-00797 (W.D.N.C. November 18, 2016) (purported collective action and class action brought under FLSA and state wage and hour laws by servers and bartenders to recover alleged unpaid wages, overtime pay and tips).

Fitzhenry v. Guardian Protection Servs., Inc., et. al., No. 2:16-cv-03597 (D.S.C. November 9, 2016) (order transferring to South Carolina a putative class action brought under the Telephone Consumer Protection Act for unsolicited phone calls).

Mullis v. Wings Over Spartanburg, LLC, et. al., No. 2:16-cv-03578 (D.S.C. November 7, 2016) (purported collective action and class action brought under FLSA and state wage and hour laws by bartenders for an improper “tip credit”).

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Recent Filings – October Digest

View Amanda Pickens’ Complete Bio at robinsonbradshaw.com Not every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of October’s filings:

Stephens, et. al. v. Shoretel SC LLC, et. al., No. 4:16-cv-03515 (D.S.C. October 28, 2016) (purported collective action brought under FLSA alleging customer service representatives were not paid overtime while working for defendant’s call center).

Blunt v. Belk, Inc., No. 3:16-cv-00745 (W.D.N.C. October 27, 2016) (notice of removal of putative class action brought under the Fair Credit Reporting Act alleging Belk failed to provide proper notice required under the Act before obtaining background checks on individuals applying for jobs).

Smith v. American Health Associates, Inc., No. 6:16-cv-03480 (D.S.C. October 25, 2016) (purported collective action and class action brought under FLSA and state wage and hour laws by phlebotomists alleging AHA failed to pay overtime and improperly deducted wages for mileage reimbursement).

Humphery v. Fluor Enters., Inc., No. 0:16-cv-03474 (D.S.C. October 24, 2016) (purported collective action and class action brought under FLSA and state wage and hour laws alleging defendant failed to pay manual laborers overtime wages).

King v. Check Recovery Bureau, Inc., No. 6:16-cv-03357 (D.S.C. October 11, 2016) (putative class action brought on behalf of consumers residing in South Carolina alleging violations of the Fair Debt Collection Practices Act).

Phillips v. Smithfield Packing Co., Inc., No. 5:16-cv-00834 (E.D.N.C. October 4, 2016) (asserting collective and class action claims under FLSA and state wage and hour laws brought by workers of a pork processing plant alleging that defendant failed to pay workers overtime).

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