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DISTRICT COURT DENIES MOTION TO DISMISS AFTER DEFENDANT MAKES RULE 68 OFFER OF JUDGMENT TO CLASS REPRESENTATIVE

 

On March 12, 2014, the United States District Court for the Middle District of Pennsylvania denied defendants, motion to dismiss that had been filed after plaintiffs refused to accept defendants, Rule 68 Offer of Judgment.

In this class action suit brought under the Telephone Consumer Protection Act, 47 U.S.C. ยง 227(b)(1)(c), plaintiffs allege that defendants Sanofi Pasteur, Inc. and Vaxserve, Inc. illegally transmitted some 11,000,000 facsimile advertisements to persons and businesses who did not consent to receive such facsimiles. Following the denial of prior motions to dismiss, defendants made Offers of Judgment under Rule 68 to the two proposed class representatives. Defendants, offers were clearly intended to set-up their most recent motion to dismiss.

In that motion, defendants argued that because they offered the two proposed class representatives all of the relief that they could have recovered if they prevailed at trial, the case essentially became moot, even though the proposed class representatives did not accept the offers. The case law on this subject - whether an Offer of Judgment for full relief moots the rest of the lawsuit, including the claims of class members in a class action - is still evolving. Some courts have held that they no longer have jurisdiction once the Rule 68 Offer has been made; other courts have held that the Rule 68 Offer cannot be used to avoid class action litigation through settlement offers to the class representatives.

A copy of the Court,s Memorandum is attached. Defendants have asked the Court to grant them the right to take an immediate interlocutory appeal to the Third Circuit Court of Appeal.

www.uspsclassaction.com
 
OVERTIME LAWSUIT AGAINST
UNITED STATES POSTAL SERVICE
 

A lawsuit was filed by the Postal Inspectors of the United States Postal Service, alleging that the Postal Service failed to pay them overtime as required by the Fair Labor Standards Act. A trial was held from January 6-12, 2012. A verdict was entered in favor of the Postal Service and the Postal Inspectors filed a Notice of Appeal on February 17, 2012. Opening briefs are due July 30, 2012. For more details on this lawsuit, log on to:

www.uspsclassaction.com
 
JUNK FAX CASE AGAINST
VAXSERVE AND SANOFIAVENTIS
 

The Firm has filed a lawsuit against Vaxserve and Sanofi-Aventis alleging that these companies sent out millions of facsimiles in violation of a federal statute that prohibits mass faxing to persons who have not consented to receive such faxes. The case is pending in federal court in Pennsylvania. The judge overseeing that case recently denied defendants’ motion to dismiss.

Copy of Order
 
LABOR SUIT AGAINST
AFFINITY LOGISTICS FOR MISCLASSIFYING DRIVERS AS
INDEPENDENT CONTRACTOR
 

Our Firm represents current and former truck drivers/delivery men of Affinity Logistics. The drivers contend that Affinity misclassified them as independent contractors, instead of employees, so that the company could avoid paying employee benefits and could require the drivers to pay all of the expenses associated with their work, like uniforms, worker's compensation insurance, truck leases and fuel. A trial was held in December 2009 in federal court in San Diego, California. On March 22, 2010, Judge Sammartino ruled against the drivers. Following on appeal, the Ninth Circuit vacated Judge Sammartino’s ruling on February 8, 2012, finding that the court improperly applied Georgia law when it should have applied California law. The parties are now submitting “closing argument” briefs based on California law. We expect a decision from Judge Sammartino in late Summer 2012.

OVERTIME LAWSUIT ON BEHALF
OF PFIZER PHARMACEUTICAL REPRESENTATIVES
 

Osborn Law has filed suit against Pfizer alleging that the company failed to pay overtime to its pharmaceutical representatives. Pfizer contends its pharmaceutical representatives are exempt from federal overtime pay provisions as “outside sales” persons. The lawsuit is pending in federal court in New York. The United States Supreme Court recently heard oral argument in a similar case (Christopher v. Glaxo SmithKline) to determine whether or not pharmaceutical representatives engage in “sales.” We expect a decision from the Supreme Court in the next few months