Monthly Archives August 2015

Earlier this year, SHB welcomed the addition of complex litigation boutique Grippo & Elden in Chicago.  We were thrilled at the news because of the deep bench of experienced class action lawyers that were joining our firm, extending our presence and expertise to the Windy City.  One of the talented lawyers in our Chicago office, Chris Wray (a former 8th Circuit clerk to the Honorable Duane Benton), tipped us off about a recent decision from the Seventh Circuit may have created a circuit split on the implicit requirement of ascertainability of Rule 23.  He was kind enough to put together the following guest post: Several circuits have recognized an implicit requirement under Rule 23 that a class must be defined clearly and that membership be defined by objective criteria. In addressing this requirement, courts have sometimes used the term “ascertainability.”  Class definitions have failed this requirement when they were too vague or subjective,…

After the district court certified a class comprised of customers who had contracted with Cox Enterprises for cable services, Cox sought to compel arbitration pursuant to clauses in class members’ contracts.  That bid was frozen in its tracks by the district court and icily affirmed by the Tenth Circuit.  The Court’s holding?  A class-action defendant with a potential arbitration defense can’t hold it back anymore, at least when the issue could impact the propriety of class certification.  In re Cox Enterprises, Inc. Set-Top Cable Television Box Antitrust Litig., No. 14-6158 (10th Cir. June 24, 2015). In particular, the Tenth Circuit emphasized that 87% of class members were potentially subject to arbitration, which undermined the district court’s findings of numerosity and predominance.  Accordingly, Cox’s conceal-don’t-feel-don’t-let-them-know approach amounted to an inequitable second bite at the apple.  The court explained that arbitration should be raised as early as possible, rather than for the…

Some may say that daily print newspapers are a dying breed.  Not Plaintiffs in O’Shaughnessy v. Cypress Media, L.L.C., No. 4:13-CV-0947-DGK, 2015 WL 4197789, (W.D. Mo. July 13, 2015), who attempted to certify a class action for their newspaper delivery service cut short. But Plaintiffs’ hopes for a certified class certainly died after a recent order issued by Judge Kays reporting on the numerous ways in which Plaintiffs failed to prove that their class should be certified. Cypress publishes three newspapers, the Kansas City Star, the Fort Worth Star-Telegram, and the Belleville News-Democrat, in Missouri, Texas, and Illinois, respectively, and has hundreds of thousands of subscribers.  As part of its newspaper delivery, Cypress would deliver premium editions for holidays, special events, or elections.  As the name premium denotes, those editions were charged at a higher rate.  For some subscribers, Cypress would charge for the premium addition by shortening the subscriber’s…

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