Monthly Archives October 2013

Hutsler stands for the proposition that a significant lapse of time between (1) advertising and sale of merchandise and (2) an alleged unfair practice will make it difficult for a plaintiff to satisfy the statutory requirement that latter be “in connection with” the former. In 2001, plaintiffs refinanced their home with Wells Fargo. Eleven years passed. In 2012, due to financial difficulty, plaintiffs couldn't make their payments.  Well Fargo foreclosed on plaintiffs' home. Plaintiffs sued, claiming that Wells Fargo violated the MMPA “in connection with the sale of the property and/or mortgage loan” based on the way Wells Fargo handled the 2012 foreclosure (e.g., failing to provide plaintiffs with loss mitigation opportunities, foreclosing on plaintiffs' home without explanation as to why they did not qualify for mortgage assistance; and making plaintiffs wait before answering their telephone calls, and transferring plaintiffs' calls). Wells Fargo moved to dismiss the MMPA claim, arguing…

Last week, Magistrate Judge Maughmer issued an order in Goans Acquisition, Inc. v. Merchant Solutions, LLC, No. 12-00539, 2013 WL 5408460 (W.D. Mo. Sept. 26, 2013) tackling a popular class action topic these days: To what extent does an unaccepted Rule 68 Offer of Judgment moot a putative class action claim? Although the Supreme Court dodged this ultimate question under the FLSA context in Genesis (read about our previous posts about that case its aftermath here, here, and here), in Goans, Judge Maughmer held that Goans' claim under the Telephone Consumer Protection Act (“TCPA"), both on an individual and class basis, was mooted by the unaccepted offer.  Slip op. at  *3 ( "Most federal circuits have found that an offer of judgment that would provide all the relief a plaintiff requests (or is entitled to) has the effect of mooting the action even if the offer is not accepted.")  The court did, however, find that plaintiff's conversion claim…

She needed new tires.  So she went to a Bridgestone tire shop. She was charged a “shop supplies fee” of $1.20, which appeared on the itemized initial estimate, as well as the final invoice. A sign posted in the store explained the purpose of this "shop supplies fee": TO OUR CUSTOMERS: A variety of shop supplies are consumed in servicing our customer's vehicles. Parts and labor necessary for servicing customer's vehicles are itemized on estimates and invoices. However, shop supplies (such as protective items for your vehicle, solvents, cleaners, rags, etc.) do not lend themselves to precise itemization. Therefore, on invoices greater than $30, an additional charge of 6% of the total labor amount, not to exceed $25 will be added to your invoice. This charge represents costs and profits.  Non-mandated disposal or recycling charges may also represent costs and profits. A lawsuit ensued.  Plaintiff sought certification of a class…

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