Posts By Andrew Carpenter

On June 19, the United States Supreme reaffirmed some basic principles of personal jurisdiction in Bristol-Meyers Squibb Co. v. Superior Court of California, 528 U.S. __ (2017).  In a bloody-good 8-1 decision (with only Justice Sotomayor dissenting) the United States Supreme Court reversed a decision of the California Supreme Court that had affirmed California's exercise of personal jurisdiction over BMS, a foreign corporation, in a series of lawsuits brought by individuals alleging personal injuries from the ingestion of Plavix, a prescription blood-thinning drug manufactured and sold by BMS. The California Supreme Court affirmed the California Superior Court's exercise of personal jurisdiction over BMS despite the facts that 592 of the plaintiffs were residents  of states other than California, and alleged no connection between their injuries and any conduct taking place in California whatsoever.  Because BMS is headquartered in New York (not California), incorporated in Delaware (again, not California), and maintains substantial operations in…

The United States Supreme Court today ended the controversial tactic of self-inflicted finality, wherein a class action plaintiff that has been denied certification and denied 23f review creates its own “final judgment” by voluntarily dismissing its own case, while reserving the right to appeal the denial of class certification. https://www.supremecourt.gov/opinions/16pdf/15-457_6j37.pdf In Microsoft Corp. v. Baker, the Supreme held that this gambit violates the carefully-calibrated principle of finality set out in the federal statutory review structure, composed of 28 U.S.C. 1291 (review of final decisions), 1292(b) (interlocutory review), and Fed. R. Civ. P. 23(f) (review of class certification decisions):   “We hold that the voluntary dismissal essayed by respondents does not qualify as a ‘final decision’ within the compass of 1291.  The tactic would undermine S 1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class…

When movies, politics, the TCPA, and Article III standing come together, the results are magic.  This happened recently in Golan v. Veritas Entertainment, LLC, et al, in which the Eighth Circuit Court of Appeals told us some things about the TCPA and Article III standing, and Mike Huckabee told us about a very special movie.  Ron and Dorit Golan were enjoying a peaceful evening at home when they received the following mysterious message on their answering machine (yes, some people still have answering machines, apparently): "Liberty.  This is a public survey call.  We may call back later."  The Golans, who were on the no-call list, did what any of us would do: they hired legal counsel, sued, and tried to certify a TCPA class. By way of background, the mysterious patriot on the other end of the line was Governor Mike Huckabee, who had been hired as a "celebrity" voice…

We all know that each defendant must consent to removal, which is easy when one or a couple of defendants are in the case.  But what do you do when the plaintiff has sued everyone under the sun and the clock is ticking?   Talk about a logistical nightmare. In Griffioen (no, that's not as typo - that's how the plaintiff spells his name), the plaintiffs in this putative class action sued a lot of entities, including some railroads, some corporations, some individuals, and some municipalities, over flood damage.  The theories and allegations aren't terribly important.  What is interesting is that certain defendants sought to remove the case to federal court, and while most of the defendants either signed the notice of removal or filed their own written indication of consent, some did not.  Instead, the removing defendants represented in their notice of removal that they had contacted counsel for…

In a development that could have huge class action implications not only for Missouri and Kansas, but also the rest of the nation, the United States Supreme Court on April 27, 2015 granted certiorari review of the Ninth Circuit’s decision in Spokeo v. Robins, 742 F.3d 409 (9th Cir. 2014).  This case raises the critical issue of whether the mere violation of a federal statute can supply Article III standing to an unharmed private litigant seeking only statutory (not actual) damages under the Fair Credit Reporting Act (FCRA) – or any of a host of other federal statutes like it. By way of background, we all know that in order to maintain Article III standing in federal court, the plaintiff must show: 1) injury in fact, ie injury in fact that is both concrete and particularized and actual and imminent, as opposed to conjectural or hypothetical; 2) causation, ie the…

In a very meta turn, Riceland Foods, Inc. found itself on the receiving end of a class action composed of class action firms and plaintiffs from the GMO Rice MDL overseen by Judge Catherine D. Perry of the USDC of the Eastern District of Missouri.  Riceland had been a co-defendant along with defendant Bayer in that litigation and had then cross-claimed Bayer and settled for $ 92 million.  Following the District Court’s orders awarding common benefit expenses and fees, three law firms that had incurred legal fees and expenses while performing class benefit work sought to certify a class representing not only other law firms but also clients who had paid for common benefit services and expenses.  The proposed class brought claims of unjust enrichment and quantum meruit against Riceland on the basis that Riceland had benefitted from the putative class’s common benefit work in obtaining a judgment against Bayer,…

In an interesting opinion, United States District Judge Carlos Murguia disposed of Defendant Defenbaugh Disposal, Inc.’s Motion for Reconsideration which questioned compatibility of the District Court’s order certifying a class of consumers charged an “environmental/fuel charge” and an “administrative fee,” and a concurrent order denying summary judgment against the sole putative class representative based on the voluntary payment doctrine.  Defenbaugh naturally questioned, among other less ripe issues, how the District Court could junk their summary judgment motion against Whitton as being too “heavily fact-dependent” to adjudicate at the summary judgment stage while concurrently certifying a class action.  In his order denying reconsideration, Judge Murguia defended his orders as compatible because the summary judgment issue was decided only with respect to the putative class representative, Mr. Whitton, “meaning that only Mr. Whitton’s actions or knowledge were relevant to defendants’ motion for summary judgment,” while “predominance is analyzed in terms of all…

How does one prove the citizenship of members of the putative class for purposes of applying CAFA’s jurisdictional exceptions?  For instance, the Local Controversy Exception under 28 U.S.C. Section 1332(d)(4) requires the federal district court to decline to exercise CAFA jurisdiction if (among other requirements) two-thirds of the putative class members are citizens of the state in which the action was originally filed.  But since absent class members are typically absent, how do you know? This issue popped up before Judge Harpool when the defendant which operated a microwave popcorn packaging plant in Jasper Missouri used CAFA to remove yet another diacetyl class.  While it is well-settled that the party seeking remand must prove the application of one of CAFA’s exceptions, this is easier said than done. Rather than apply strict proof, the district court elected to rely on “common sense” and “logic.”  Although only 41% of the class actually…

In a recent decision from the United States District Court for the Western District of Missouri, Judge Whipple demonstrated that he is indeed “down with the chips” when it’s crunch time by granting Defendants’ 12(b)(1) and 12(b)(6) motion to dismiss the putative class claims asserted under the MMPA against Cape Code Potato Chip Company, Inc. and Snyder’s-Lance, Inc.    In her complaint, the class representative alleged that the sale of these tasty snacks violated the MMPA because they were falsely labeled as “all natural” and containing “no preservatives.”  As you may recall, a valid MMPA claim requires the plaintiff to allege: 1) the purchase of merchandise from the defendant; 2) for personal, family, or household purposes; and 3) ascertainable loss of money or property; 4) as a result of a practice proscribed by section 407.025.1 of the MMPA. After sinking his teeth into Defendants’ motion, Judge Whipple may have Ruffled a…

In the notice of removal, apparently, because it may be too late if you simply plead satisfaction of the amount in controversy and wait until the amount is challenged to prove the underlying calculations.  In Dart Cherokee Basin Operating Co., LLC v. Owens, 730 F.3d 1234 (10th Cir,. September 17, 2013), Judge Hartz, joined by Judges Kelly, Tymkovich and Phillips, dissented from the Court's denial of en banc review of this issue by an equally divided vote.    In this case, the Petitioner/Defendant had removed the case pursuant to CAFA, and pleaded facts supporting satisfaction of the $5 million amount in controversy, but had waited until the Respondent/Plaintiff challenged the notice of removal to submit a declaration setting forth a calculation of potential liability.  The District Court remanded the case, holding that the declaration was untimely. Judge Hartz would have granted review, and argued that the Tenth Circuit owed a duty…

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