Papers Saving Papers: Class Action Fails for Lack of Standard-Form Service Agreement
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 billing period. And the shortened billing period is where the Plaintiffs took issue with their bills. No news is not good news, said the Plaintiffs, who complained that the shortened-subscription billing practice violated consumer protection statutes, and they sought to represent a class of subscribers who had their subscriptions cut short.
The court did not bring happy news to Plaintiffs. First, the Court noted problems with typicality and adequacy for subscribers to the Fort Worth Star-Telegram and the Belleville News-Democrat. Plaintiffs subscribed to the Kansas City Star but sought certification on behalf of subscribers to all three newspapers—not adequate, not typical. The court also took issue with the fact that one of the named Plaintiffs was the brother of Plaintiff’s counsel: siblings apparently can’t be trusted . . . in a class action. The court next bemoaned the multiple states involved. Choice of law is a problem for certification, particularly “where, as here, the class action would have to be litigated under the consumer-protection statutes of multiple states.” Id. at 9.
The biggest headline for the court was that there were no standard agreements to “serve as common evidence on which to base class-wide liability determinations.” Id. at 7. As you would expect out of a company who publishes papers every day, Cypress was skilled at producing forms and used a number of different service agreements that contained substantively different information about how it billed the premium editions. The varying forms not only destroyed commonality, but made it “impossible to determine on a class-wide basis whether Cypress incurred any liability to the class members,” thereby destroying predominance as well. Id. at 9.
So the newspaper survives. There were just too many papers—well, service agreements anyway—to certify the class.