On June 19, the United States Supreme reaffirmed some basic principles of personal jurisdiction in Bristol-Meyers Squibb Co. v. Superior Court of California, 528 U.S. __ (2017).  In a bloody-good 8-1 decision (with only Justice Sotomayor dissenting) the United States Supreme Court reversed a decision of the California Supreme Court that had affirmed California's exercise of personal jurisdiction over BMS, a foreign corporation, in a series of lawsuits brought by individuals alleging personal injuries from the ingestion of Plavix, a prescription blood-thinning drug manufactured and sold by BMS. The California Supreme Court affirmed the California Superior Court's exercise of personal jurisdiction over BMS despite the facts that 592 of the plaintiffs were residents  of states other than California, and alleged no connection between their injuries and any conduct taking place in California whatsoever.  Because BMS is headquartered in New York (not California), incorporated in Delaware (again, not California), and maintains substantial operations in…

The United States Supreme Court today ended the controversial tactic of self-inflicted finality, wherein a class action plaintiff that has been denied certification and denied 23f review creates its own “final judgment” by voluntarily dismissing its own case, while reserving the right to appeal the denial of class certification. https://www.supremecourt.gov/opinions/16pdf/15-457_6j37.pdf In Microsoft Corp. v. Baker, the Supreme held that this gambit violates the carefully-calibrated principle of finality set out in the federal statutory review structure, composed of 28 U.S.C. 1291 (review of final decisions), 1292(b) (interlocutory review), and Fed. R. Civ. P. 23(f) (review of class certification decisions):   “We hold that the voluntary dismissal essayed by respondents does not qualify as a ‘final decision’ within the compass of 1291.  The tactic would undermine S 1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class…

In a so-called “slack-fill” case, Judge Laughrey issued an opinion denying Hershey Company’s motion to dismiss a putative class’s MMPA and unjust enrichment claims, which involve allegations that Reese's Pieces and Whoppers candy boxes improperly suggest that they contain more product than they actually do.  According to the opinion, consumers average a whopping 13 seconds making in-store purchasing decisions, further supporting the plaintiff’s contention that consumers attach significant importance to the size of candy boxes, and that he was misled to believe that he was purchasing more product than he actually received. The court rejected Hershey's argument that the MMPA claim was not plausible, reasoning that the MMPA has been interpreted as "cover[ing] every unfair practice imaginable and every unfairness. . . ."  What's more, a "plaintiff need not even allege or prove reliance on an unlawful practice to state a claim under the act."  Judge Laughrey concluded that the plaintiff…

CAFA provides for federal jurisdiction over class actions if the amount “in controversy” exceeds $5 million. This is not always a complicated exercise, with the calculation often resting on the total potential number of class members multiplied by the amount of individual damages.  But what about when the class definition requires an additional, fact-intensive inquiry, thus realistically reducing the actual number of class members—and, as a result, the total amount of damages truly “in controversy”?  The Tenth Circuit faced this question in Hammond v. Stamps.com, 844 F.3d 909 (10th Cir. 2016), concluding in a published opinion that the total “conceivab[le]” damages are what matters, not what the plaintiff will likely be able to prove. For a $15.99 monthly fee, Stamps.com allows subscribers to print postage from home. According to Ms. Hammond, the site fails to adequately disclose the subscription charges, leading her to erroneously believe that she would only be…

Plaintiffs may not avoid removal under CAFA by amending their complaint after removal to restrict the class to nondiverse individuals, held the court in Pudlowski v. The St. Louis Rams, LLC, No. 4:16-CV-189-RLW, 2016 WL 5660237 (E.D. Mo. Sep. 29, 2016). In Pudlowski, Plaintiffs sued the Rams in a Missouri state court under the Missouri Merchandising Practices Act (“MMPA”), alleging that the Rams mislead them about the team’s future location and thus caused them to buy tickets, merchandise, and concessions. Id. at *1. Defendants removed the case to federal court under CAFA, the District Court granted Plaintiffs’ motion to remand back to state court, and Defendants then appealed to the Eighth Circuit, which remanded to the Eastern District of Missouri, instructing the District Court to weigh two declarations from alleged class members. Id. at *2. Under CAFA, federal district courts have jurisdiction over class actions only if (among other requirements) there…

We know the general rule that a Missouri Merchandising Practices Act ("MMPA") plaintiff cannot merely allege some undefined loss: the loss must be ascertainable, meaning the plaintiff must state an actual amount or a method for calculating the amount. Now add a corollary principle: not only must the loss be ascertainable, but whatever that amount is, it must constitute a net loss when measuring the difference between the actual or reasonable value of the product or service and the amount that plaintiff paid. That’s the takeaway from Cregan v. Mortgage One Corp., No. 4:16 CV 387 RWS, 2016 WL 3072395, at *5 (E.D. Mo. June 1, 2016). In Cregan, plaintiffs entered into a loan agreement with defendant that encumbered their real property. Id. at *1. After plaintiffs filed for bankruptcy, defendant filed a notice of claim that included a charge for $56,000 in “daily simple interest” due, and plaintiffs claimed that the…

Not quite the wrecking ball some hoped it would be, this week’s Supreme Court decision in Spokeo v. Robins created a crack just wide enough to allow a new wave of Article III standing arguments in private actions for statutory violations. As we discussed in our earlier post, Spokeo is a website that provides users with information about other individuals, including contact data, age, occupation, economic health, and wealth level.  The plaintiff, Thomas Robins, alleged willful violation of the Fair Credit Reporting Act (FCRA) because Spokeo’s website described him inaccurately—as a married 50-year-old, with children, and a high income.  None of the information was correct.  Robins alleged that the inaccurate information injured him when he searched for employment because potential employers saw him as someone who would expect a higher income and likely would be unwilling to relocate.  The district court dismissed the case for lack of Article III standing;…

Plaintiffs can no longer base Missouri Merchandising Practices Act (“MMPA”) claims on sales “puffery”—i.e., exaggerated statements upon which no reasonable consumer would rely, or vague or highly subjective claims of product superiority. That’s the message from Hurst v. Nissan N. Am., Inc., No. WD 78665, 2016 WL 1128297 (Mo. Ct. App. Mar. 22, 2016). In Hurst, Plaintiffs alleged that Nissan violated the MMPA by making representations that “tended to create a false impression” about the quality of its “FX” sport utility vehicles, some of which developed dashboard bubbling from heat and humidity. Id. at *3. In particular, the FX’s marketing materials displayed FX dashboards and stated that the FX contained “premium automotive machinery” and “room for everything except compromise” and that the FX was “a superior product representing excellent value,” “uncompromising,” and “premium.” Id. at *4. The trial court certified a class of 326 Missourians who purchased Infiniti’s FX35 and…

To state an omission-based MMPA claim in federal court, a plaintiff may not rely on generic allegations that a defendant failed to disclose an alleged product defect. Nor may a plaintiff rely on prior consumer complaints as the basis for alleging that a defendant concealed a material fact. That’s the lesson from Johnsen v. Honeywell International Inc., No. 4:14CV594 RLW, 2016 WL 1242545 (E.D. Mo. Mar. 29, 2016). In that case, plaintiff claimed that Honeywell’s representations about its humidifiers’ quality, along with a five-year warranty, amounted to an actionable “unfair practice” under the MMPA where the humidifiers allegedly broke down repeatedly. On March 29, 2016, the Eastern District of Missouri ruled on defendant Honeywell International’s Rule 12(b)(6) motion to dismiss plaintiff’s complaint, holding that bare allegations that defendants “knew, or reasonably should have known” that their products contained some defect and that they “concealed and failed to disclose such alleged…

Last week, the Supreme Court issued its opinion in Tyson Foods v. Bouaphakeo, No. 14-1146 (March 22, 2016), a closely watched case out of the 8th Circuit that presented two meaty issues relevant to class action practitioners: 1) whether a plaintiff can use statistical sampling to establish class-wide liability, aka "Trial-by-Formula"; and 2) whether a certified class can include uninjured claimants.  In its opinion affirming both class certification and the trial verdict, the Court did not make any broad pronouncements on the use of statistical evidence in classwide proceedings, but instead took a more measured approach on when such evidence may be used.  Our thoughts on the opinion are below. On the use of statistical evidence, Justice Kennedy, writing for the majority observed that "[a] categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability."  Instead, whether and when…

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