Plaintiff, a consumer who filed an action on behalf of a class of similarly situated wireless subscribers in California, filed a 28 U.S.C.S. § 1447 motion to remand the action after defendant corporation removed the action for a second time. Plaintiff brought claims under the Legal Remedies Act, Cal. Civ. Code § 1770, the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, the Computer Crime Law, Cal. Penal Code § 502, and tort law.
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Overview
Plaintiff contended that wireless subscribers in California suffered losses as a result of incurring unauthorized charges on the cellular telephone bills from or on behalf of defendant. The court granted plaintiff’s original motion to remand on the basis that defendant failed to show a sufficient amount in controversy under the Class Action Fairness Act, 28 U.S.C.S. § 1332(d). Fifteen days later, defendant again removed the action and attempted to establish the requisite amount in controversy by relying on a declaration by plaintiff’s counsel in another, unrelated action. The court, however, held that the declaration did not qualify as “other paper” under 28 U.S.C.S. § 1446(b) because it was not filed in the underlying state court action. The court further found that defendant’s methodology for establishing the amount in controversy requirement effectively required the stacking of tenuous inference upon tenuous inference. In light of the frivolous nature of defendant’s second attempt at removal, the court found it appropriate to award attorneys’ fees and costs to plaintiff under § 1447(c).
Outcome
The court granted plaintiff’s litigation attorney motion to remand. The court also ordered that defendant pay plaintiff’s reasonable attorneys’ fees and costs incurred as a result of the second removal.
Overview
HOLDINGS: [1]-An incentive award to lead plaintiffs in a proposed settlement agreement 33 times greater than the maximum possible recovery of other individual class members created a significant disparity, and the court could not approve a settlement agreement under Fed. R. Civ. P. 23(e)(2) that so seriously jeopardized the adequacy of the lead plaintiffs to represent absent class members in settling their claims; [2]-Where the settlement class definition excluded 171 members of the class, on the grounds that those members had previously released their claims through settlement in other cases, 46 settling employees had not released all of their claims, and the court could not exclude them from the class on that basis.
Outcome
Preliminary approval of settlement agreement not given.