Monthly Archives March 2014

Plaintiff's lawsuit was essentially about octane. She claimed that an unfair practice occurs every time a consumer buys higher octane fuel from single-hose gas pump and incidentally receives a residual amount of lower octane fuel lingering in the hose from a prior fueling. In her single-count MMPA lawsuit, Plaintiff sought money and an injunction on behalf of a class of Missouri consumers who bought higher grade gasoline from the Defendants (retail-gas-station operators). Preemption posed a problem for Plaintiff. The federal Petroleum Marketing Practices Act expressly preempts state-law requirements regarding labeling and marketing of gasoline octane rating that are not "the same as" the PMPA's requirements. Although Plaintiff carefully omitted the word "octane" in her class-action complaint, Judge Kays held that federal law preempted her MMPA claim: Although Plaintiff has successfully avoided using the word “octane” anywhere in the Complaint, it does not change the fact that the essence of her…

One of the implicit requirements of Rule 23 is that a class should not be certified unless it is "ascertainable;" thus, if a court is required to engage in fact-intensive individualized analysis to identify class members, certification is not appropriate.  While we recently blogged about two thoughtful opinions coming from the Third Circuit, decisions in our home Circuits have not been as plentiful. Judge Henry E. Autrey of the Eastern District of Missouri, however, recently highlighted the  requirement and its affect on the other Rule 23 requirements in Henke v. Arco Midcon, LLC, No. 4:10CV86 HEA, 2014 WL 982777 (E.D. Mo. Mar. 12, 2014).  In Henke, the plaintiffs alleged that their land was contaminated from oil leaks from a decades old petroleum pipeline that had been reconditioned to carry fiber optic cable.  The problem for the plaintiffs was that there were several additional active and inactive petroleum pipelines running across their property; and…

We have written a few posts about the challenges inherent in obtaining judicial approval of proposed class settlements here at the Missouri and Kansas Class Action Law Blog, and this latest order issued by Judge Kays denying a proposed hybrid wage-and-hour settlement outlines many of those concerns that counsel should be mindful of when negotiating and finalizing a proposed class settlement that will pass judicial scrutiny. (HT to our former colleague Eric Dirks who tipped us off about this order earlier this week - look for a guest post from him in the coming weeks). In Stewart v. USA Tank Sales and Erection Co., No. 12-05136-CV-SW-DGK, 2014 WL 836212 (W.D. Mo. March 4, 2014), the plaintiffs brought a seemingly straight-forward wage-and-hour claim, alleging that their employer failed to pay them overtime; the wrinkle being that it was a "hybrid" class where plaintiffs bring a claim under both the federal Fair Labor Standards Act…

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