Mark Emmert Back At It

Mark Emmert, the head of the NCAA, will be back at it, starring as a guest on CBS's "Face The Nation" tomorrow morning, Sunday March 30. The topic will be paying student athletes. I anticipate his appearance will also touch on the recent victory for college athletes to unionize.

Emmert was on another Sunday morning talk show last week, Meet The Press. See my previous blog post for a link to that video.

Recent Alabama Federal Opinions

In Rhone v. Cenlar Agency, Inc., 2014 U.S. Dist. LEXIS 38251 (N.D. Ala. Mar. 24, 2014), on November 26, 2012, in the Circuit Court of Tuscaloosa County, Alabama, Rhone sued Cenlar, asserting a single cause of action, namely, conversion of insurance proceeds, and seeking damages well below $75,000.  Cenlar filed a motion for summary judgment which, after a hearing, was denied on June 4, 2013.  On June 5, 2013, at Cenlar’s request, Rhone e-mailed Cenlar a copy of a proposed Second Amended Complaint which included new claims of unjust enrichment, wrongful foreclosure and estoppels and requested punitive and mental anguish damages; Rhone asked Cenlar if it would oppose the amended complaint.  On June 14, 2013, Rhone e-mailed a settlement demand, in excess of $75,000, which was based on the proposed amended complaint.  After Cenlar indicated that it would oppose the proposed amendment, on June 27, 2013, Rhone filed a Motion for Leave to file a Second Amended Complaint.  On July 11, 2013, Cenlar withdrew its opposition and, on July 12, 2013, the trial court granted Rhone’s Motion to Amend.  On July 23, 2013, Cenlar filed a notice of removal.

            Rhone unsuccessfully contended that the removal was untimely.  Rhone suggested that the 30-day window to timely remove began to run on June 5^th, the e-mailing of a copy of the proposed amendment, or on June 14^th, the e-mailing of the settlement demand.  District Judge Blackburn found that the time could only start running when the state court granted the Motion to Amend because only then was there the unambiguous establishment of federal jurisdiction. 

            Rhone also unsuccessfully contended that Cenlar had waived its right to remove.  This contention was predicated on Cenlar’s activities in the state court prior to the granting of the Motion to Amend.  There was no “clear and unequivocal” waiver of the right to remove if that right was not available to Cenlar.  Until the granting of the Motion to Amend, the single-count conversion lawsuit was not properly removable.  After the granting of the Motion to Amend, Cenlar engaged in no activities in state court which would constitute a waiver of its right to remove a matter which recently became removable.

            In Broadway v. State Farm Mut. Auto. Ins. Co., 2014 U.S. Dist. LEXIS 35665 (M.D. Ala. Mar. 19, 2014), Broadway was injured in a traffic accident caused by Channell.  Channell had only $25,000 in liability coverage.  Under his State Farm policy, Broadway had $25,000 in UIM coverage.  With State Farm’s express permission, Broadway settled with Channell and his liability insurer and received $25,000.  State Farm waived its subrogation rights as to Channell in regard to Broadway’s claim for UIM benefits with State Farm.  Yet, State Farm refused to pay more than $5,000 in UIM benefits.

            In the Circuit Court of Montgomery County, Alabama, Broadway sued State Farm and Anderson, the agent who sold Broadway the subject State Farm policy.  Against State Farm alone, Broadway asserted claims of breach-of-contract and bad faith.  Against State Farm and Anderson, Broadway asserted a fraud-based claim.  The opinion addressed both Broadway’s motion to remand and State Farm’s motion to dismiss.

            In the notice of removal, State Farm asserted that Anderson had been fraudulently joined because Broadway had no viable claim against Anderson.  District Judge Fuller concluded that Alabama procedural law, and not federal procedural law, in particular, the Twombly/Iqbal, would apply in determining whether an Alabama state court would possibly recognize Broadway’s fraud claim under Alabama’s rule that a failure to state a claim is appropriate only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.  Broadway’s fraud claim was predicated on State Farm’s “Good Neighbor” advertising slogan and Broadway’s allegation that he relied on this slogan in deciding to purchase the policy.  District Judge Fuller found that “an advertising slogan such as this is patently insufficient to state a cause of action for fraud in Alabama” because the slogan is mere opinion or puffery, and not a statement of fact.

            State Farm’s Rule 12(b)(1)-based motion to dismiss was denied.  State Farm unsuccessfully contended that there was no subject matter jurisdiction because Broadway’s claims of breach of contract and bad faith were not ripe because there was a dispute as to the amount of UIM benefits to which Broadway was entitled.  District Judge Fuller found that Broadway had alleged sufficient facts to overcome a facial attack to subject matter jurisdiction.  Broadway alleged both that State Farm refused to pay him any more than $5,000 and that he was entitled to the full $25,000 in available UIM coverage and that State Farm had no basis for not paying him the full $25,000.  District Judge Fuller distinguished scenarios in which the UIM carrier had yet to make any decision because he had requested additional information, such a medical records, and the insured had not provided the requested information.  In those scenarios, the insured’s claims were not ripe.  While there was a “dispute” between Broadway and State Farm as to what amount of UIM benefits were actually due, this dispute was ripe for judicial resolution given that State Farm was not waiting for additional information but had made a rather “definitive” decision that it was obligated to pay only $5,000 in UIM benefits.

The NCAA's Madness

This last weekend began March Madness-the NCAA's men's basketball tournament to crown the National Champion. It is one of the most widely watched, and profitable, sporting events in the world. Of course, the real madness is the NCAA's stance on keeping the current system in place. I think almost everyone would agree that the structure is broken, or at least has major cracks in its foundation.

This was apparent in an interview Mark Emmert gave on NBC's "Meet the Press" this weekend. The topic was paying ‘student-athletes’. His arguments for keeping the system in place were flawed and irrational, and he appeared weak when confronted with tough questions. He barely answered anything and sounded more like a politician running for office. Below is a link to the video feed. It is definitely worth a watch. 

http://www.nbcnews.com/watch/meet-the-press/should-student-athletes-get-paid-204172355888

Another piece of media that illustrates the contradictory and confusing decisions the NCAA has made over the years was an article published on Sunday by Jon Solomon in The Birmingham News/al.com. It truly describes the NCAA’s madness. Click on the link below for that story:

http://www.al.com/sports/index.ssf/2014/03/post_594.html

No matter what the NCAA's position is, the system may be completely dismantled with the upcoming O’Bannon trial slated to begin June 9^th.  

O'Bannon Case Ordered To Mediation

Last week, Judge Claudia Wilken referred the pending O’Bannon lawsuit to Magistrate Judge Nathanael Cousins for "a settlement conference to be held as soon as it is convenient."

The mediation is to involve issues raised by a group of class-action and individual anti-trust plaintiffs led by former UCLA basketball player Ed O'Bannon, as well as those raised by former Arizona State and Nebraska football player Sam Keller.

The Keller case is a presumptive class action relating to the use of college athletes' names and likenesses in video games.

In the O'Bannon case, the plaintiffs, on a class-action basis, are seeking an injunction that would bar the NCAA from limiting what Division I men's basketball players and football players can get for participating in their respective sports. Individual named plaintiffs also are seeking a jury verdict — and damages — relating to the alleged misuse of their names and likenesses in the past.

The O'Bannon plaintiffs and the NCAA had each asked Wilken to decide the case in their favor without a trial. As covered in my blog previously, Wilken said she would not grant a full summary judgment to either side, and she set a June 9th trial date. However, she has not yet made a formal ruling on the summary judgment requests, or a series of other pending matters. She did state that at least some of the issues will go to trial.

Jon Solomon, who writes for The Birmingham News/al.com, has written another excellent piece on the story. He has covered the lawsuit for the last few years and I have put links to his articles on my blog many times. For more on his take, click on the link below:

http://www.al.com/sports/index.ssf/2014/02/judge_orders_settlement_talks.html

RECENT ALABAMA APPELLATE OPINIONS

In Health Care Authority for Baptist Health v. Davis, No. 1090084 (Ala. Feb. 28, 2014), the Alabama Supreme Court reversed course and, upon reconsideration, determined that a private hospital which entered into an agreement with UAB or the University of Alabama to manage the facility with the private entity regaining possession of the property upon termination of the agreement did not enjoy sovereign immunity. 

The gist of the analysis was that a franchise was created, as opposed to the hospital becoming an agency or arm of the state.  One gets the sense that the hospital could only become a state agency or entity if a state agency fully purchased the hospital and renamed the facility, for example, as UAB-Montgomery. 

Additionally, the Supreme Court held the $100,000 cap applicable to municipalities and counties could not be constitutionally extended to the HCA which was not created by municipalities or counties.

JPMorgan Chase Settles Force-Placed Insurance Class Action Lawsuit

A class action lawsuit against JPMorgan Chase over force-placed insurance practices has reportedly settled. The case is pending in Miami, Florida before Chief Judge Federico A. Moreno of the United States District Court for the Southern District of Florida. Although Chase entered into the settlement agreement in September 2013, the final approval hearing before Judge Moreno is scheduled for February 14, 2014.

The settlement could pay more than $300 million to about 750,000 mortgage borrowers. The plaintiffs have also entered into a separate settlement for $4.75 million with Chase relating to forced-placed insurance for policies covering wind damage. The $300 million settlement relates to polices that cover fire and other risk.

The settlement does more than extract money damages from the behemoth bank, it also achieved injunctive relief. The national settlement prohibits the bank for six years from getting commissions, kickbacks or reinsurance from the insurance, which it obtains when a homeowner's policy lapses. This is known colloquially as “inflating premiums”. The estimated value of injunctive relief from the bank changing its practices is thought to be $690 million.

Class members can file claims to recover part of the premiums they were charged between 2008 and Oct. 4, 2013.

Premiums for force-placed insurance, which were deducted from a homeowner's escrow account or added to the mortgage loan balance, were often much higher than the homeowners' initial premiums. Many of those covered by the lawsuit lost their homes to foreclosure.

Chase unsuccessfully sought to dismiss the lawsuit this past May, claiming that the contracts granted the lender substantial discretion in placing coverage and that the plaintiffs did not dispute that they breached their mortgage agreements by failing to maintain continuous coverage.

From the period of 2008 to the present, the homeowners alleged that Chase force-placed more than $2.3 billion in insurance coverage, netting Chase approximately $600 million. The settlement requires that Chase refund 12.5 percent of the annual premiums for forced-placed policies to all class-members, and that it refrain from inflating premiums for six years.

This class action lawsuit against Chase and Assurant is not the first large-scale litigation over forced-placed insurance. Earlier this year, Wells Fargo and QBE Insurance Group Ltd. announced that they agreed to settle a similar claim, also pending in Miami before U.S. District Judge Robert Scola, for $19.3 million in favor of 30,000 borrowers.

Similar settlements are expected to follow in lawsuits against some other major banks.