Monthly Archives November 2012

Going deeper into the post-Concepcion discussion of what arbitration agreements containing class action waivers are enforceable and which are not, Judge Whipple and the Western District of Missouri weigh in with a well-reasoned analysis of another consumer arbitration agreement in another cellular phone contract in Davis v. Sprint Nextel Corp., 2012 WL 5904327 (W.D. Mo. Nov. 26, 2012). As you might recall, the United States Supreme Court in Concepcion forbade the nullification of arbitration agreements simply because they eliminated classwide arbitration.    As you may also recall, the Missouri Supreme Court recognized this new complication in Brewer and Robinson, and grappled with the question of whether the particular arbitration agreements at issue in those cases were in fact unenforceable as unconscionable under generally applicable contract defenses as defined by Missouri law. Based on the Missouri Supreme Court's directive in Brewer, Judge Whipple analyzed the unconscionability issue in terms of its impact on…

Are class action arbitration waiver provisions enforceable under Missouri law?  In other words, can a company contract away a consumer's right to proceed in arbitration on a classwide basis?  In AT&T Mobility LLC. v. Concepcion, 131 S. Ct. 1740 (2011), the United States Supreme Court severely limited the ability of states to declare such class arbitration waivers unenforceable as contrary to public policy.  Writing for the majority, Justice Scalia found that the Federal Arbitration Act preempts California's judicial rule - the Discover Bank Rule -- which classifies most consumer class action arbitration waivers as unconscionable.  Because the purpose of the FAA is to ensure the enforceability of arbitration agreements according to their terms, the FAA's savings clause permits states to invalidate consumer class action arbitration waivers only by "generally accepted contract defenses, such as fraud, duress, or unconscionabilty," but not by defenses applicable only "because arbitration is at issue."  It's important to…

It appears not, at least not in the Western District of Missouri (or really anywhere else).  In Resurgent Capital Services v. Thomason, 2012 WL 5398189 (Nov. 5, 2012, W.D. Mo), the plaintiff in a debt collection case attempted exactly that when the defendant counterclaimed with a request to certify a class under the Fair Debt Collection Act.  Judge Smith remanded the case after an efficient analysis, relying on the plain language of CAFA itself (28 U.S.C. § 1441(a)) that limits removal to “any defendant” and finding nothing in CAFA’s legislative history indicating Congress had intended to alter the traditional rule that a counterclaim defendant may not remove a case to federal court.  As Judge Smith noted, his conclusion was consistent with those of other federal courts addressing the same issue.  So if you want to be in federal court, don’t wait for the counterclaim, even under CAFA.

In Ingersoll v. Farmland Foods, Inc., 2012 WL 546100 (Nov. 7, 2012 W.D. Mo.), the Western District clarified the issue of whether defense counsel may communicate with a member of a certified class who is also representing himself pro se.  In that case, one of the named plaintiffs in a putative FLSA and MMWL class had ceased communicating with class counsel, who had then moved for and been granted leave to withdraw as his counsel.  The Court declared that the recalcitrant class representative, Mr. Truitt, would be expected to proceed pro se.  Following certification of the class, Farmland’s counsel contacted Mr. Truitt, who indicated he no longer wished to pursue his claims. After Mr. Truitt signed a Stipulation of Dismissal, class counsel asserted that defense counsel’s contacts were prohibited by Missouri’s rules of ethics and the dismissal was invalid.  Judge Gaitan disagreed, finding that Fed. R. Civ. P 23(e) did…

As part of our analysis, we’ve been looking at how Missouri courts have been interpreting the United States Supreme Court’s decision in Wal Mart v. Dukes, 1341 S. Ct. 2541 (2011).  As you probably recall, Dukes has been lauded as a game-changer by some on the defense side, or dismissed by some as a recapitulation of prior law and the product of a really bad fact pattern by others.   Without getting into too much detail on a subject well-covered in several places, Justice Scalia wrote for the majority in reversing the certification of a massive class of some 1.5 million female current and former Wal Mart employees alleging Title VII discrimination under a disparate impact theory.  At the risk of oversimplifying, the Dukes majority denied certification under b(3) because in the absence of a companywide discriminatory pay and promotion policy, there was no common question, and denied injunctive certification under…

We like to write and talk about Missouri class action law.  Prisons, not so much.  But if there’s a class action decision involving the First Amendment, an inmate-authored publishing company named Caged Potential, and using 23(b)(3) to certify an injunctive-relief-only class, we’re all over it. In Lane v. Lombardi, 2012 WL 5462932 (W.D. Mo. Nov. 8, 2012), a publishing company, Caged Potential, published a novel, So Far From Paradise.  The book was an overnight hit at the Crossroads Correctional Facility, with nine inmates placing orders during the 2011 holiday season.  Caged Potential attempted to send the books to the inmates, but Crossroads had seized the books – pursuant to its censorship policy – and never told Caged Potential that the books were seized.  Trouble in paradise, indeed. Thereafter, Caged Potential sued the Missouri Department of Corrections, claiming that the censorship policy deprives senders of due process under the Fourteenth Amendment…

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