As a Harvard Law Professor noted recently in an American Bar Association publication entitled Class Actions Today, despite Congress’s enactment of the Class Action Fairness Act of 2005 (CAFA), class action practice appears to be as vigorous as ever.  Although CAFA in essence federalized many class actions that could previously have been litigated in state courts, class actions remain alive and well in both state and federal court, and North Carolina’s rules on class certification are much different, and much simpler, than the federal rules.

The reality is that very few class actions are ever tried on the merits.  The cases are either won by the defendants at the class certification or summary judgment stage, or the cases are ultimately settled. 

Poyner & Spruill has a significant track record of litigating, winning and creatively settling class actions in state and federal court, both pre and post CAFA.  The following are a representative sample of the kinds of cases we have litigated:

• We represent MedAmerica Insurance Company in a case pending in North Carolina State Court brought on behalf of a purported class of 3000 current and retired state employees and their dependants who purchased long term care (LTC) insurance through a plan sponsored by the State Health Plan.  Plaintiffs have alleged that their LTC rates increased more than they should have when the State terminated its contract with MedAmerica at the end of 2004 and replace MedAmerica with another LTC carrier whose rates were significantly higher.  MedAmerica and the State Health Plan have cross-claimed against each other.  The case is still in the early procedural stages.

• We represent Check-Into-Cash in a class action in North Carolina State Court that seeks to challenge the lawfulness of the pay-day lending industry.  The case is currently on appeal from the trial court’s determination that the plaintiffs’ claims were subject to the arbitration clause in the contract between the plaintiffs and the pay-day lenders.

• We represent Estes Express Lines, Inc. in a post-CAFA class action pending in U.S District Court for the Southern District of Indiana involving wage and hour claims.  Class counsel initially sought damages for the class well in excess of CAFA’s $5 million jurisdictional threshold.  The case was resolved by payment of slightly more than $100,000 to the class.  The only remaining issue is the amount of attorneys’ fees class counsel is entitled to recover, which is currently being litigated.

• We defended RPM Lincoln Mercury, Inc. in a consumer class action in Durham County, North Carolina Superior Court that alleged an automobile dealer charged customers interest rates in excess of the rates permitted by North Carolina law.  The individual plaintiff’s case was settled for a nominal amount and all the class allegations were dismissed.

• In Armstrong v. Leith, Inc., filed in the U.S. District Court, Eastern District of North Carolina, we were lead counsel in defense of a class action alleging violation of the federal Consumer Leasing Act and fraud in connection with automobile leasing.  The case was dismissed on summary judgment while plaintiff’s motion for class certification was pending.

• Biery v. Estes Express Lines, Inc., U.S. District Court, District of West Virginia.  Counsel in defense of class action alleging employer wrongfully discharged employees for excessive use of health care benefits provided by employer.  Case voluntarily dismissed after depositions of six named plaintiffs.

• Burkes v. Centura Bank, U.S. District Court, Eastern District of North Carolina. Lead counsel in defense of class action alleging Consumer Leasing Act violations in automobile lease disclosure forms.  This case settled.

• Byers v. CenturaBank, N.C. Business Court, Lead counsel in defense of class action alleging breach of fiduciary duties in connection with acquisitions of mutual savings and loan association.  Case was certified as class action. Case settled while summary judgment motion was pending.

• Couch v. Saturn of Raleigh, Inc., Durham County Superior Court.  Lead defense counsel for Saturn of Raleigh in class action related to sale of extended warranties.  Case settled without payment of damages to plaintiff class.

• Maynard v. Amerada Hess et al., New Hanover County Superior Court. Counsel for Phillips Petroleum in class action against seven oil companies alleging MTBE contamination.  Case was settled after motion for class certification was denied.

The attorneys who head our class action defense practice are David Dreifus, Chair of the Litigation Section, and Eddie Speas, former head of special litigation and Chief Deputy Attorney General for the North Carolina Department of Justice.  Prior to joining Poyner & Spruill in 2004, Mr. Speas served as lead counsel for the State in a series of class actions and other complex cases, including Bailey v State,  a class action impairment of obligation of contract claim based on alleged alterations in the terms of the retirement system for public employees.

David Dreifus

Edwin M Speas, Jr.

David M. Barnes

Daniel G. Cahill

Thomas H. Davis, Jr.

Joshua B. Durham

George K. Freeman, Jr.

Jason B. James

Thomas L. Ogburn III

John L. Shaw