Monthly Archives August 2013

Although this blog is focused on class action decisions originating out of the 8th and 10th Circuits where your humble authors live, we would be remiss not to mention two recent decisions out of the Third Circuit which address Rule 23's long-standing implicit requirement of ascertainability. Earlier this month, in Hayes v. Wal-Mart Stores, Inc., No. 12-2522, 2013 WL 3957757 (3d Cir. Aug. 2, 2013), the court vacated a trial court's decision granting class certification, holding in part that a plaintiff must demonstrate a reliable and administratively feasible method to ascertain the class.  In Hayes, the district court certified a class of consumers who bought extended warranties for "as is" products, as those warranties specifically excluded "as is" products, despite the fact that Wal-Mart had no method for determining how many such warranties were sold.  The Third Circuit, however, reiterated that “if class members are impossible to identify without extensive…

This putative class rep really did not want to be in federal court. First, he attempted to avoid CAFA removal by stipulating that the putative class would seek less than $5 million.  Defendants filed a notice of removal, and ultimately prevailed (which we wrote about here). Months later, the Supreme Court unanimously held that such stipulations cannot bind putative class members and therefore cannot be used to defeat CAFA jurisdiction (which we discussed here).  Standard Fire Ins. Co. v. Knowles, 133 S.Ct. 1345, 1348 (2013). Not wanting to be stuck in federal court, plaintiff got creative and cited Knowles as the basis for a motion to voluntarily dismiss his case and re-file in state court, arguing that "the reason for this dismissal is to re-file in state court a petition that complies with the dictates of Standard Fire and Casualty Company v. Knowles, which is not to rely on a…

For those who don't opt in until the class is conditionally certified, that's who.  In Greenstein v. Meredith Corp., 2013 WL 4028732 (D. Kan., Aug. 7, 2013), class counsel asked the District Court to equitably toll the limitations period for the eleven-month period from the time plaintiffs' motion for conditional certification was filed, and the time it was granted. Normally in FLSA cases the limitations period is not tolled until the class member opts into the conditionally certified class. Plaintiff argued that the long delay in resolving conditional certification justified equitable tolling. Judge Rogers disagreed, explaining that although the Tenth Circuit has not addressed the issue of equitable tolling in the context of an FLSA class, it usually applies that doctrine restrictively only where the defendant has actively misled the plaintiff respecting the cause of action, or in other extraordinary circumstances. Judge Rogers also determined that the factors applied by…

We all know that defendants have the burden of establishing CAFA jurisdiction - i.e. minimal diversity, an amount-in-controversy exceeding $5 million, and at least 100 class members.  And we also know that the complaint, affidavits, declarations, discovery responses, or "other paper" may be used as evidence. But what about discovery responses filed in another case?  May a defendant use a plaintiff's discovery responses from a similar case to demonstrate more than $5 million is in controversy in the case at hand? No, at least where the discovery responses involve a different defendant and only one of two named plaintiffs. In three separate Missouri class actions, Mr. Dalton sued Walgreens, Staples and Target, alleging statutory and common-law claims based on defendants' practice of placing tracking files on plaintiffs' computers and harvesting information about their web-browsing, without being detected, for the purpose of tracking consumers' internet history and activities. In the cases…

We all know that constitutional standing requires an injury-in-fact that is fairly traceable to the challenged conduct of the defendant.  But how exactly does that operate under the Electronic Fund Transfer Act, 15 U.S.C. 1963, which requires two forms of notice of transactions fees on ATMs, both on-machine notice and on-screen notice, and provides for statutory damages? In Charvat v. Mutual First Federal Credit Union, 725 F.3d 819, 2013 WL 3958300 (8th Cir., August 2, 2013), the plaintiff sought to certify a class of persons charged transaction fees on the Bank/defendant's machines, which lacked the prescribed on-machine notice (but provided on-screen notice).  The District Court dismissed the claims of Charvat, the putative class representative, for lack of standing, concluding that Charvat had alleged an injury at law, but not in fact. Judge Shepherd, writing for the panel, reversed.  Without addressing whether Charvat suffered an economic injury from the $2.00 transaction fee,…

You might have been LED to believe that the Supreme Court has short-circuited the ability of plaintiffs to certify classes under Rule 23 based on the polarizing opinions this term, despite the continued surge of class action filings around the country.  Bad puns aside, there are still classes being certified at the district court level, which may evidence a growing resistance to SCOTUS's strict interpretations of Rule 23 (sorry, couldn't help myself).  For example, in Barfield v. Sho-Me Power Elec. Coop.., No. 11-cv-04321, 2013 WL 3872181 (W.D. Mo. July 25, 2013), Judge Laughrey of the U.S. District Court for the Western District, recently discussed the impact of individual damage inquiries when certifying a class of thousands of Missouri landowners against an electric cooperative for allegedly exceeding the scope of easements granted for power lines. Here, the defendant, a local electric cooperative, had valid easements to transmit electricity over the properties owned by the named…

Judge Gaitan, Chief Judge of the U.S. District Court for the Western District, recently issued an order answering what appears to be an issue of first impression for 8th Circuit courts: does a federal district court retain jurisdiction to rule on a motion for reconsideration on an order to remand made under CAFA?  In Wingo v. State Farm Fire and Casualty Co., No. 13-3097, 2013 WL 3872199 (W.D. Mo. July 25, 2013), Judge Gaitan answered the question in the affirmative, continuing the broad interpretation in favor of federal jurisdiction for class actions under CAFA. Although Judge Gaitan noted the dearth of case law on the issue, he noted that the "Seventh Circuit has treated reconsideration by district courts in a CAFA case as a proper exercise of jurisdiction" and found such authority to be persuasive in the absence of any contrary authority. Id. at *2, citing Natale v. General Motors, No. 06–8011, 2006 WL…

In a thorough per curiam order, the Kansas Court of Appeals emphatically reversed the District Court's order certifying a class of "free gas" users.  In Combs v. Devon Energy Prod. Co., 2013 WL 3867981 (Kan. App. July 26, 2013), the Court of Appeals concluded that the District Court had abused its discretion in certifying a class consisting of resident owners of surface estates burdened with oil and gas leases held by Devon where the leases contained "free gas clauses", ie. clauses entitling the lessor to connect to and draw from any gas well on the land for his or her own use free of charge.  The class had sought a declaration that the free gas clauses in the leases obligated Devon to provide a usable supply of free gas, which it alleged Devon had failed to provide due to pressure and moisture issues. The District Court certified the class under both…

In an interesting case of first impression, the District Court of Kansas held that the United States Supreme Court's recent decision in Genesis HealthCare Corp. v. Symczk, 133 S.Ct. 1523 (2013) (which we discussed back in April), does not allow defendants to moot an FLSA claim by making an offer of judgment to a representative plaintiff pursuant to Fed. R. Civ. P. 68.  In Michaels v. City of McPherson, Kansas, 2013 WL 3895343 (D. Kan., July 29, 2013), the City/Defendant served an offer of judgment on the lone plaintiff asserting an FLSA claim while the motion for conditional certification was pending (and of course before any class members were able to opt into the class).  The Defendant then opposed Plaintiff's motion to amend the complaint to add a new representative plaintiff on the grounds that amendment was futile, asserting that the offer of judgment mooted the Plaintiff's claims under Genesis…

She needed a tiller.  So she went to Home Depot and rented one. The rental contract had a damage-waiver provision, which stated: If I pay the damage waiver charge for any Equipment, this agreement shall be modified to relieve me of liability for accidental damage to it, but not for any losses or damage due to theft, burglary, misuse or abuse, theft by conversion, intentional damages, disappearances or any loss due to my failure to care properly for such Equipment in a prudent manner (including without limitation by using proper fuel, oil and lubricants and not exceeding such Equipment's rated capacity, if applicable). She signed the contract.  She initialed the "I have read and agree" box. On the way home, she read the contract more carefully and noticed the $2.50 charge for the damage waiver.  The next day, she returned the tiller and paid the bill without asking that the…

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