Class Actions

Class action defense and prosecution is a significant part of our litigation practice. We recognize that class actions impose unique challenges on a defendant and present unique opportunities for a corporate plaintiff. We have faced those challenges and opportunities in cases defended or prosecuted for clients like Home Depot, Commonwealth Edison, Wells Fargo, CNA Insurance, Safety Kleen, and J.P. Morgan Chase (just to name a few). Those cases address diverse areas of law, including consumer fraud, breach of contract, securities fraud, insurance, labor, antitrust, and environmental. This work has literally taken us from coast to coast, as reflected in the following examples:

We are currently class counsel for a putative class of over 500 insurance companies in a case involving allegations of decades-long financial reporting fraud by a leading market insurer on other insurers participating in workers’ compensation state residual markets. This matter is pending in the federal court in Illinois.
A California class action attorney challenged our client’s practice of charging a fee for insurance as part of its product delivery practices. The California appellate court held that our client was entitled to a judgment in its favor and that its practices were acceptable. Wilson v. Brawn of California, Inc., 132 Cal. App. 4th 549, 33 Cal. Rptr. 3d 769 (Ct. of App. 2005). Class action attorneys in New Jersey and Oklahoma also attempted to challenge the practice in separate cases, each of which were resolved favorably. Martin v. Hanover Direct, Inc., No. IN-96715 (Ct. of Appeals, Oklahoma 2005) (reversing trial court’s certification of class); Morris v. Hanover Direct, Inc., No. 8830-02 (Bergen County, N.J., Feb. 14, 2005) (denying class certification).
A plaintiff sued Home Depot in an alleged class action claiming that certain treated wood sold by Home Depot was defective because it purportedly leached arsenic into the soil. The trial court found that the claim was not appropriate for class treatment, a decision affirmed by the appellate court in Kitzes v. Home Depot, 872 N.E.2d 53 (Ill. App. 2007). In Rickher v. Home Depot, No. 07 2850 (7th Cir.), the plaintiff claimed that the damage waiver sold by Home Depot in connection with tool rentals violated the Illinois Consumer Fraud Act. The District Court granted summary judgment in Home Depot’s favor, a result affirmed by the Seventh Circuit.
We are currently representing SIRIUS XM Radio Inc. in an alleged class action pending before the American Arbitration Association. Asserted claims include breach of contract and statutory and common law fraud.
We were recently trial counsel for CNA in New York state court class action litigation (four-month bench trial) pertaining to alleged unaggregated “non-products” exposure for asbestos bodily injury claims. Continental Casualty Co. v. Employers Ins. Co. of Wausau, et al., 871 N.Y.S.2d 48 (N.Y.A.D. 1 Dept. 2008) (Phase I) (no coverage for class claims) and 865 N.Y.S.2d 855 (N.Y. Sup. Oct. 14, 2008) (Phase II) (defense costs ruling for CNA). Opponents and the trade press described this as a landmark decision on the “non-products” issue.
We obtained a verdict of $36 million against the plaintiffs’ class action firm of Ness, Motley, Loadholt, Richardson & Poole. We established that the law firm breached its fiduciary duties and contractual obligations in connection with the settlement of a class action lawsuit that provided millions in fees to Ness Motley but little relief for the class and nothing to its client, Interclaim.
We defeated class certification in a case against Chase filed in Cook County attacking prepayment provisions in business loans. Plaintiff’s counsel had attempted to certify a nationwide class of borrowers. We not only obtained a ruling that the case was inappropriate for class treatment, but also a ruling that the purported class representative was disqualified from representing the putative class.
We represented American Express in Dwyer v. American Express, 273 Ill. App. 3d 742 (1st Dist. 1995), an alleged privacy class action that has been described as one of the “leading” privacy cases in the country. The case arose from American Express’ alleged use of cardholder information to create profiles of its customers. As counsel for American Express, we won dismissal of the case on motion, a result affirmed in the cited opinion. Two other plaintiff class action attorneys filed similar cases against American Express in Texas and New Jersey. In Texas, we obtained a decision that required the class representative to pay the cost of notice to the alleged 40-million-person class as a condition for moving forward with their case. See Walton v. American Express, 883 S.W.2d 703 (Tex. App. 1994). In New Jersey, the judge dismissed the claim on motion. See Arcidiacono v. American Express, 1993 U.S. Dist. Court, Lexis 4042 (D.N.J. 1993).
We defended RealNetworks in internet privacy class actions filed across the country and won key rulings that largely gutted the litigation. See In re RealNetworks Privacy Litigation, 2000 WL 631341 (N.D. Ill. May 8, 2000). RealNetworks hired us based on work we did for American Express in the three privacy cases discussed above.
We defended Norwest Corporation (now Wells Fargo) and Norwest Bank Iowa, N.A. (collectively “Norwest”) in a suit challenging Norwest’s reaffirmation and credit reporting practices. Asserted claims included violations of section 524 of the Bankruptcy Code, the Fair Debt Collection Practices Act and the Illinois Consumer Fraud Act. We won dismissal of those claims at an early stage, avoiding costly discovery.
Commonwealth Edison retained us to handle consumer class actions arising from power outages on Chicago’s north side. We were hired because we had quickly and favorably resolved similar class actions arising out of power outages on the west side and, in another case, established a significant limitation on utilities’ prospective liability. See also Wielgos v. Commonwealth Edison, 127 F.R.D. 135 (N.D. Ill. 1989), in which we defeated a securities class action and obtained Rule 11 fees against the plaintiff’s lawyer totaling in excess of $300,000.

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