Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

CE, an Illinois corporation that litigates claims under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, filed a class action in Illinois state court accusing Homegrown, a Canadian marketing firm, of sending CE junk faxes. The parties settled in 2007 for $5 million plus interest and costs. Homegrown failed to notify its insurer, SMI, about the litigation and used its own counsel; the settlement was structured to be enforceable only against Homegrown’s SMI liability policy. CE, as assignee of Homegrown's rights under the policy, filed a citation to discover assets in an effort to recover on the judgment. Rath, SMI’s Canadian attorney, wrote a letter to the Illinois court advising that SMI was denying coverage. SMI took no other steps to fight the citation. The court entered judgment for CE. CE unsuccessfully attempted to enforce that judgment in Saskatchewan, where SMI is based. The Saskatchewan court awarded SMI costs. Seven years later, SMI moved to enforce the Saskatchewan judgment in federal district court. The Seventh Circuit agreed with the district court that there was no basis for federal jurisdiction, “an outcome that is especially appropriate given the comity concerns that pervade this litigation.” The Class Action Fairness Act, 28 U.S.C. 1332(d), is inapplicable because the defendant is the class and diversity jurisdiction, 28 U.S.C. 1332(a)(2), is inapplicable because no individual class member could satisfy the $75,000 amount‐in‐controversy requirement. No exception to the general prohibition on aggregating claims applies. View "Saskatchewan Mutual Insurance Co. v. CE Design, Ltd." on Justia Law

Plaintiffs filed a putative class action against Kolbe & Kolbe Millwork, alleging that Kolbe sold them defective windows that leak and rot. Plaintiffs brought common-law and statutory claims for breach of express and implied warranties, negligent design and manufacturing of the windows, negligent or fraudulent misrepresentations as to the condition of the windows, and unjust enrichment. The district court granted partial summary judgment in Kolbe’s favor on a number of claims, excluded plaintiffs’ experts, denied class certification, and found that plaintiffs’ individual claims could not survive without expert support. The Seventh Circuit affirmed. Plaintiffs forfeited their arguments with respect to their experts’ qualifications under “Daubert.” Individual plaintiffs failed to establish that Kolbe’s alleged misrepresentation somehow caused them loss, given that their builders only used Kolbe windows. Though internal emails, service-request forms, and photos of rotting or leaking windows may suggest problems with Kolbe windows, that evidence did not link the problems to an underlying design defect, as opposed to other, external factors such as construction flaws or climate issues. View "Haley v. Kolbe & Kolbe Millwork Co.," on Justia Law

Workers in Waupaca foundries alleged violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, by not treating the time that workers spend changing clothes and showering on-site after a shift to be compensable “work” time. They alleged that they end their shifts covered in a layer of “foundry dust,” which can irritate the skin and cause lung disease if inhaled. FLSA authorizes collective actions by employees on behalf of “similarly situated” employees. Unlike class actions under FRCP 23, collective actions under FLSA require would-be members to opt in (voluntarily join). The district judge ruled that he would “conditionally certify” the class since the plaintiffs showed a “reasonable basis” for believing that all the class members were similarly situated. After discovery, the judge would determine whether plaintiffs who had opted in were actually similarly situated. After several hundred current and former employees from three states opted in, Waupaca moved to decertify the class. The plaintiffs, deciding to proceed with only Waupaca’s Wisconsin employees, moved to certify a Rule 23 class just for Wisconsin state-law claims, and did not oppose the decertification of Indiana and Tennessee employees. The Seventh Circuit affirmed denial of Waupaca’s request to decertify the entire FSLA class; division of the FLSA class into three subclasses and their transfer to district courts in their respective states; and Rule 23 ceritfication of the Wisconsin claims. View "DeKeyser v. Thyssenkrupp Waupaca, Inc." on Justia Law

Fulton received an unsolicited fax from Bisco and sued for damages under the Telephone Consumer Protection Act, 47 U.S.C. 227. Before Fulton moved for class certification, Bisco tried to moot its claim by tendering an offer ($3,005 plus costs) under Federal Rule of Civil Procedure 68 that, Bisco claimed, gave Fulton all possible individual relief. Two days after Bisco’s offer, the Supreme Court held that “an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case.” Fulton rejected the offer. Bisco then moved to deposit $3,600 with the court under Rule 67. The court dismissed the suit, concluding that Bisco’s maneuver mooted Fulton’s individual claim and disqualified it from serving as a class representative. The Seventh Circuit remanded, finding dismissal premature. Bisco’s payment did not moot the case; the court’s registry does not function as plaintiff’s account. An unaccepted offer to settle a case, accompanied by a payment intended to provide full compensation into the registry of the court under Rule 67, is no different in principle from an offer of settlement made under Rule 68. It is not clear, as a matter of law, that the unaccepted offer was sufficient to compensate Fulton for its loss of the opportunity to represent the putative class. View "Fulton Dental, LLC v. Bisco, Inc." on Justia Law

Plaintiffs brought a class action under 42 U.S.C. 1983, alleging that the practices of the Marion County Sheriff’s Department and the Consolidated City of Indianapolis and Marion County caused them to be detained in jail awaiting release for an unreasonably long period of time, in violation of the Fourth Amendment. The district court granted certification for two proposed subclasses but denied it as to three. Plaintiffs appealed, under FRCP 23(f), the denial of certification of classes consisting of individuals who, from December 2012 to the present, were held in confinement after legal authority for those detentions ceased, due to the Sheriff’s practices of operating under a standard of allowing up to 72 hours to release prisoners who are ordered released and of employing a computer system inadequate for the purposes intended with respect to timely release of prisoners. The Seventh Circuit allowed the interlocutory appeal and reversed. The district court believed that detentions of less than 48 hours would be presumptively reasonable, and those that extended beyond 48 hours would be presumptively unreasonable, subjecting class members to different burdens of proof. The court erred in applying the 48-hour presumption in the context of a class composed of persons for whom legal authority for detention has ceased, whether by acquittal, release on bond, completion of the sentence, or otherwise. View "Driver v. Marion County Sheriff's Department" on Justia Law

Under the Telephone Consumer Protection Act (TCPA), an effective consent to automated calls is one that relates to the same subject matter covered by the challenged messages. Akira, a retailer, engaged Opt for text-message marketing services. Akira gathered 20,000 customers’ cell phone numbers for Opt’s messaging platform. Akira customers could join its “Text Club” by providing their cell phone numbers to Akira representatives inside stores, by texting to an opt-in number, or by completing an “Opt In Card,” stating that, “Information provided to Akira is used solely for providing you with exclusive information or special offers. Akira will never sell your information or use it for any other purpose.” In 2009-2011, Akira sent about 60 text messages advertising store promotions, events, contests, and sales to those customers, including Blow. In a purported class action, seeking $1.8 billion in damages, Blow alleged that Akira violated the TCPA, 47 U.S.C. 227, and the Illinois Consumer Fraud Act by using an automatic telephone dialing system to make calls without the recipient’s express consent. The Seventh Circuit affirmed summary judgment for Akira. Blow’s attempt to parse her consent to accept some promotional information from Akira while rejecting “mass marketing” texts construed “consent” too narrowly. The court declined to award sanctions for frivolous filings. View "Blow v. Bijora, Inc." on Justia Law

The district court certified eight classes, consisting of persons in Illinois and Missouri who take eye drops manufactured by six pharmaceutical companies for treatment of glaucoma. Plaintiffs claimed that the defendants’ eye drops are unnecessarily large and wasteful, in violation of the Illinois Consumer Fraud Act, 815 ILCS 505/1, and the Missouri Merchandising Practices Act, Mo. Rev. Stat. 407.010, so that the price of the eye drops is excessive and that the large eye drops have a higher risk of side effects. There was no claim that members of the class have experienced side effects or have been harmed because they ran out of them early. The Seventh Circuit vacated with instructions to dismiss. The court noted possible legitimate reasons for large drops, the absence of any misrepresentation or collusion, and that defendants’ large eye drops have been approved by the FDA for safety and efficacy. “You cannot sue a company and argue only ‘it could do better by us,’” nor can one bring a suit in federal court without pleading that one has been injured. The plaintiffs allege only “disappointment.” View "Eike v. Allergan, Inc." on Justia Law

Wright was arrested by Calumet City police, without a warrant, based on the murder of one individual and the shooting of others. Wright admitted to having a gun. At a minimum, he was to be charged with felony unlawful use of a weapon by a felon, but the prosecutor instructed the officers to wait to charge Wright until lab results came back establishing whether his gun matched casings and bullets at the scene. After being in custody for 55 hours, Wright sued under 42 U.S.C. 1983, alleging that the city violated his Fourth and Fourteenth Amendment rights by failing to provide him with a judicial determination of probable cause within 48 hours of his arrest. The next day, a judge made a probable cause finding. In the section 1983 action, Wright sought class certification, asserting that the city had a policy or practice authorizing officers to detain persons arrested without a warrant for up to 72 hours before permitting the arrestee to appear before a judge. The city made an offer of judgment. Despite accepting that Rule 68 offer, granting him relief as to "all claims brought under this lawsuit,” Wright appealed the denial of certification of a proposed class of “[a]ll persons who will in the future be detained.” He did not appeal with respect to persons who had been detained. The Seventh Circuit dismissed, finding that Wright is not an aggrieved person with a personal stake in the case as required under Article III of the Constitution. View "Wright v. Calumet City" on Justia Law

JPMorgan offers to manage clients’ securities portfolios. Its affiliates sponsor mutual funds in which the funds can be placed. Plaintiffs in a putative class action under the Class Action Fairness Act, 28 U.S.C. 1332(d)(2), alleged that customers invested in these mutual funds believing that, when recommending them as suitable vehicles, JPMorgan acts in clients’ best interests (as its website proclaims), while JPMorgan actually gives employees incentives to place clients’ money in its own mutual funds, even when those funds have higher fees or lower returns than third-party funds. The Seventh Circuit affirmed dismissal under the Securities Litigation Uniform Standards Act, 15 U.S.C. 78bb(f), which requires the district court to dismiss any “covered class action” in which the plaintiff alleges “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security.” Under SLUSA, securities claims that depend on the nondisclosure of material facts must proceed under the federal securities laws exclusively. The claims were framed entirely under state contract and fiduciary principles, but necessarily rest on the “omission of a material fact,” the assertion that JPMorgan concealed the incentives it gave its employees. View "Holtz v. J.P. Morgan Chase Bank, N.A." on Justia Law

If a LaSalle Bank custodial account had a cash balance at the end of a day, the cash would be invested in (swept into) a mutual fund chosen by the client. The Trust had a custodial account with a sweeps feature. After LaSalle was acquired by Bank of America, clients were notified that a particular fee was being eliminated. The trustee, who had not known about the fee, brought a putative class action in state court, claiming breach of the contract (which did not mention this fee) and violation of fiduciary duties. The bank removed the suit to federal court, relying on the Securities Litigation Uniform Standards Act, 15 U.S.C. 78bb(f), which authorizes removal of any “covered class action” in which the plaintiff alleges “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security.” The statute requires that such state‑law claims be dismissed. The district court held that the suit fit the standards for removal and dismissal. The Seventh Circuit affirmed. The complaint alleged a material omission in connection with sweeps to mutual funds that are covered securities; no more is needed. The Trust may have had a good claim under federal securities law, but chose not to pursue it; the Act prohibits use of a state-law theory. View "Goldberg v. Bank of America, N.A." on Justia Law