News

FINAL APPROVAL GRANTED IN KESSLER SETTLEMENT FOR
ALLOWED CLAIM AMOUNT OF $300 MILLION DOLLARS 

On November 27, 2013, the United States Bankruptcy Court for the Southern District of New York granted final approval of a class settlement with an allowed claim amount of $300 million dollars. The negotiation of the settlement was reported previously on this website.  Bruce Carlson, who was co-lead counsel for the class in connection with this settlement, filed the first case initiating this litigation on behalf of residential mortgage borrowers more than (12) twelve years ago. A related case remains pending against PNC Bank in the Western District of Pennsylvania.

Lynch Carpenter is pleased to announce a substantial settlement on behalf of a class of approximately 44,000 residential mortgage borrowers.  Bruce Carlson and Lynch Carpenter are co-lead counsel for the Class. The settlement was negotiated as part of the bankruptcy proceedings  in the case captioned In re:  Residential Capital,  LLC, et al., Case No. 12-12020 (United States Bankruptcy Court, Southern District of New York). In connection with  the settlement the debtor has agreed to an allowed claim amount of $300 million for the Class. The settlement was  preliminarily approved on August 23, 2013 and the Final Approval hearing is scheduled for November 19, 2013.  A Notice which describes the settlement in more detail is posted in the Class Notice section of this website. Any questions regarding this settlement should be directed to Bruce Carlson.

On July 31, 2013, the United States District Court for the Western District of Pennsylvania (Schwab, J.) issued an Opinion and Order certifying a class of second mortgage loan borrowers against Pittsburgh based PNC Bank N.A. The Order appoints Lynch Carpenter and Bruce Carlson as co-lead counsel on behalf of the class.  In this case, Lynch Carpenter asserts that Class Members were defrauded in connection with their second mortgage loans and, as a result, paid grossly excessive fees in connection with the loans.  PNC’s financial exposure in this case exceeds $500 million dollars.  Please contact Bruce Carlson with any questions regarding this litigation.

As noted in a blog posted previously on this website, Lynch Carpenter has filed a substantial number of cases nationally challenging the ongoing failure of banks and financial services providers to comply with ATM accessibility requirements for the blind and visually impaired. These cases assert claims under the Americans with Disabilities Act (“ADA”) and, where appropriate, parallel state laws. A number of bank defendants have filed baseless, cookie-cutter motions to dismiss challenging the standing of the named plaintiffs in these cases. On July 12, 2013, a United States Magistrate Judge sitting in the Middle District of Pennsylvania issued a comprehensive Report and Recommendation in Klaus v. Jonestown Bank and Trust Co. recommending the denial of a standing-based motion to dismiss. This is the sixth opinion endorsing plaintiffs’ position in the cases filed by Lynch Carpenter. By Order dated August 13, 2013, United States District Judge Christopher C. Connor adopted the Magistrate Judge’s Report and Recommendation denying the defendant bank’s motion to dismiss. To date, no court has granted a motion to dismiss in any of these cases.

On July 15, Lynch Carpenter and attorneys from Public Citizen in Washington, D.C. filed an appeal in the Fifth Circuit Court of Appeals. The appeal centers around the important issue of whether an amendment that eliminates statutory consumer rights will apply retrospectively to pending lawsuits based on events that took place before the change in the law.

In a lawsuit filed in 2010, Plaintiff Lisa Mabary alleged that Defendant Home Town Bank violated her rights as a consumer by charging ATM transaction fees without providing proper notice. In December 2012, while the litigation was ongoing, Congress amended the law upon which the lawsuit was based, eliminating future lawsuits of that nature. Congress did not include a specific instruction for retrospective application in the amendment. In March 2013, Judge Ellison of the United States District Court for the Southern District of Texas dismissed the case and denied class certification, finding that the amendment applied retrospectively, effectively eliminating the basis of Plaintiff Mabary’s lawsuit.

Lynch Carpenter and Public Citizen are appealing Judge Ellison’s ruling in order to protect consumers who filed legitimate lawsuits to vindicate their rights. If the district court’s opinion is upheld, legitimate pending lawsuits could be eliminated by a change the law, even if a valid case has been pending for months or years and Congress does not explicitly intend a retrospective application. This variety of retrospective application seriously jeopardizes the ability of consumers to bring private lawsuits to enforce consumer rights laws. This type of loophole would allow defendants to escape liability for consumer rights violations after the fact through corporate lobbying and anti-consumer legislation.

In this case, Lynch Carpenter will be attempting to achieve its fourth recent federal appellate court reversal.

The case is Mabary v. HomeTown Bank, No. 13-20211, in the United States Court of Appeals for the Fifth Circuit.

On July 11th, 2013, a Magistrate Judge in the United States District Court for the Southern District of Texas issued an opinion recommending that a class certification motion filed by Lynch Carpenter on behalf of plaintiffs be granted. The opinion rejects the attempt by the defendant in this case to distort the actual requirements of Rule 23.

On April 16, 2013, the United States Supreme Court decided Genesis Healthcare Corp. v. Symcyzk, a case in which Gary F. Lynch served as Counsel of Record on behalf of Respondent Laura Symczyk.  In a 5-4 decision, the Court held that a collective action under the Fair Labor Standards Act (“FLSA”) is not justiciable and may not proceed when the lone plaintiff’s individual claim becomes moot.

The FLSA authorizes a private cause of action against employers violating certain FLSA provisions.  29 U.S.C. § 216(b).  Employees may sue on their own behalf and on behalf of “other employees similarly situated.”  Id.  Respondent, a registered nurse, brought such a “collective action,” alleging that petitioners, her former employers, violated the FLSA by deducting a 30-minute unpaid meal break from each shift even if the employee worked during that time. Petitioners made Respondent an offer of judgment under Federal Rule of Civil Procedure 68: $7,500 for alleged unpaid wages and reasonable attorneys’ fees, costs and expenses. When Respondent failed to respond to the offer, Petitioners moved to dismiss for lack of subject-matter jurisdiction, arguing that their offer of complete relief rendered Respondent’s FLSA claim moot. Noting that no other employees had yet joined Respondent’s suit, the district court agreed with Petitioners and dismissed the suit. The Third Circuit reversed. Although recognizing that Petitioners had offered complete relief, thus mooting the individual FLSA claim, the appellate court held that using strategic Rule 68 offers to “pick off” aggrieved employee-plaintiffs would frustrate the FLSA’s collective-action process. The Third Circuit therefore remanded for the Respondent to seek conditional certification, which, if successful, would relate back to the date of the Complaint.

The Supreme Court reversed. The Court refused to decide whether the unaccepted Rule 68 offer actually mooted Respondent’s individual FLSA claim, instead simply noting that the two lower courts agreed that it did and that Respondent waived the argument. The only question, then, was whether Respondent’s suit remained justiciable based on the collective-action allegations she raised. The Court held that it did not because “the mere presence of [such] allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied.” Because Respondent’s claim was mooted before any other employees had joined, she had no “personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness.” In applying these “well-settled mootness principles,” the Court explicitly distinguished its Rule 23 precedent – on which Respondent had relied – as legally and factually inapposite. Although the Rule 68 offer prevented additional claimants from seeking relief in Respondent’s suit, the Court reasoned, those claimants “are no less able to have their claims settled or adjudicated following Respondent’s suit than if her suit had never been filed at all.”

Justice Thomas delivered the opinion for the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, and Alito joined. Justices Ginsburg, Breyer, and Sotomayor, led by Justice Kagan, delivered a spirited dissent both as to what the majority did and did not decide. The dissent did not find the distinctions between collective and class actions sufficient to warrant limiting the relation-back doctrine to traditional class actions. Indeed, to do so, the dissent explained, would allow defendants to short-circuit collective actions and frustrate the objectives of the FLSA.  The dissent also disagreed with the majority’s choice to evade ruling on the impact of an unaccepted Rule 68 offer of judgment. It considered this issue to be “inextricably intertwined” with the issue the majority did address, making both appropriate for the court’s consideration.

Justice Kagan focused her dissent on arguing that an unaccepted Rule 68 offer could never moot an individual claim. She relied upon traditional contract principles, arguing that an unaccepted offer of judgment, like any withdrawn offer, is a “legal nullity” that cannot moot a case.  She also grounded the dissent in Rule 68 itself, stressing that it permits entry of judgment, thus mooting the plaintiff’s claim, only when the offer is accepted. If the offer is not accepted, the offer is deemed withdrawn, so a live controversy does – and always will in those circumstances – remain.  The majority, as noted above, did not weigh in on this latter question, i.e., whether a case becomes moot after an unaccepted Rule 68 offer of full relief. Should the issue be brought before the Court, one can only speculate as to how a majority of the court would resolve it.

“We are disappointed in the Court’s decision, but we see this as an extremely narrow opinion that will have little effect on future FLSA cases,” said Gary F. Lynch of Lynch Carpenter LLP., who represented Symczyk.  “Ironically, the Court closed the courthouse doors in front of Laura Symczyk on mootness grounds, despite the fact that she has never been and now never will be compensated for her stolen wages,” Lynch said. “This procedural oddity, while fundamentally unfair to Ms. Symczyk, limits the application of this opinion.”

As one commentator observed: “This 5-4 decision is best described by Justice Kagan in her dissenting opinion as ‘wrong, wrong and wrong again.’  A case where a plaintiff never accepted an employer-defendant’s offer of judgment and the majority concludes not only is her claim ‘moot,’ but anyone who may be similarly situated with a FLSA claim is also ‘moot?’ Furthermore, as Justice Kagan correctly stated, ‘the majority’s decision – founded as it is on an unfounded assumption – would have no real-world meaning or application. The decision would turn out to be the most one-off of one-offs….That is the case here.’  Justice Kagan (joined by Justices [Ruth Bader] Ginsburg, [Stephen] Breyer and [Sonia] Sotomayor) correctly conclude that today’s opinion in Genesis has virtually no practical application to the practice of law in the FLSA arena.”

Approximately 146 cases have been filed since December against banks in Pennsylvania, New Jersey, Ohio and Texas on behalf of blind individuals.

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