Sea Change: New York State Class Actions; Making It Work, Fulfilling the Promise

By Dickerson, Thomas A. | Albany Law Review, Summer 2019 | Go to article overview

Sea Change: New York State Class Actions; Making It Work, Fulfilling the Promise


Dickerson, Thomas A., Albany Law Review


In this third installment of our ongoing analysis of class actions brought pursuant to CPLR article 9 (1) we discuss the following developments.

First, in 2014 the Court of Appeals rendered a decision in Borden v. 400 East 55th Street Associates, L.P. (2) which clarified its strong commitment to enforcing the broad, liberal goals set forth in the legislative history of CPLR article 9. (3) In doing so, the Court of Appeals encouraged the appellate division and trial courts to take a more aggressive role in certifying a variety of class actions, particularly, those brought by tenants, consumers and employees. (4) As we shall see, the appellate division and the trial courts have responded accordingly.

Second, while the Court of Appeals was expanding the usefulness of CPLR article 9, the U.S. Supreme Court was closing the door on state court consumer class actions (5) with its decisions in AT&T v. Conception, (6) American Express Co. v. Italian Colors Restaurant, (7) and related cases which, relying on the Federal Arbitration Act (FAA), enforced mandatory arbitration clauses, class action waivers, and class arbitration waivers in consumer contracts. (8) To the extent the directives set forth by the U.S. Supreme Court may be circumvented (9) or ameliorated in state courts, (10) the First Department's bold decision in Gold v. New York Insurance Co. (11) expands that circumvention or amelioration to mandatory arbitration clauses in employment contracts. (12) Unfortunately, the U.S. Supreme Court recently decided to enforce mandatory arbitration clauses and class action waivers in employee contracts in Epic Systems Corp. v. Lewis (13) thus rendering the ruling in Gold v. New York Insurance problematic, at best.

Third, disclosure-only settlements, typically entered into pre-class certification, in mergers and acquisitions (M&A) and corporate governance class actions have been widely criticized. (14) In response the Appellate Division, First Department, in Gordon v. Verizon Communications (15) set forth two new factors, in addition to the five factors set forth in Matter of Colt Industries Shareholders Litigation, (16) which serve to guide trial courts in evaluating whether a proposed disclosure-only settlement is beneficial to shareholders and the corporations. (17)

Fourth, the Court of Appeals in Desrosiers v. Perry Ellis Menswear, LLC (18) addressed the issue of whether and to what extent notice should be given to purported class members pursuant to CPLR 908 when a purported class action is settled with court approval prior to class certification. (19)

Fifth, the Fourth Department in DeLuca v. Tonawanda Coke Corp. (20) and the First Department in Roberts v. Ocean Prime, LLC (21) have dramatically changed course and certified mass tort class actions alleging property damage and personal injuries. (22)

Sixth, indirect tax payer class actions have been approved by the Third Department in Matter of New Cingular Wireless PCS, LLC u. Tax Appeals Tribunal. (23)

I. WE ASKED THE COURT OF APPEALS FOR GUIDANCE

In our 2010 article, New York State Class Actions: Make It Work-Fulfill The Promise, (24) we asked the Court of Appeals to take a more active role in providing necessary guidance to the appellate division and the trial courts regarding the use of CPLR article 9: "[a]nd, lastly, the article encourages the New York State Court of Appeals to continue to take a more active role in choosing to hear appeals in class action cases involving a variety of issues, including the granting and denial of class certification (CPLR 901, 902)." (25)

A. The Beginning of Change

In Koch v. Acker, Merrall & Condit Co., (26) an individual consumer fraud action involving the sale of counterfeit wine, the Court of Appeals determined that both General Business Law ("GBL") section 349 (deceptive and misleading business practices prohibited) and GBL 350 (false advertising prohibited) are certifiable in consumer class actions. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Sea Change: New York State Class Actions; Making It Work, Fulfilling the Promise
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.