Posts By Andrew Carpenter

Judge Vratil's order in Gambrell v. Weber Carpet, Inc., 2013 WL 1659591 (D. Kan. April 17, 2013), stands in stark contrast to the Missouri Supreme Court's recent analysis on class counsel fees. In this case, Judge Vratil ultimately approved an award of fees to class counsel in this FLSA settlement, but did so in a manner likely to haunt class counsel for years. The Court had overruled the parties' first motion to approve the proposed FLSA settlement because the parties had submitted it in camera. The Court overruled the second attempt at approval for failing to provide sufficient information needed to support the key findings (such as whether the proposed settlement was fair, reasonable and adequate). At this point, class counsel was undeterred by the Court's stated skepticism of their request for $40,375.00 in fees for a $14,000 settlement. The third attempt at approval failed for lack of supporting information…

In Berry v. Volkswagen Group of America, Inc., 2013 WL 1421604 (Mo., April 13, 2013), the Missouri Supreme Court affirmed an award of $6,174,640.00 in class counsel fees where the class recovered a grand total of $125,261.00. Because our firm submitted an amicus brief in this case, we will keep the report of this decision factual. That case involved an MMPA class settlement for allegedly defective window regulators, resulting in the settlement of a 22,304 member class eligible for payments of $75.00 each. But after notice was mailed out the class members, only 177 claims were made and only 130 paid. Class counsel submitted a bill for 7,910 hours billed at rates ranging from $200 for staff to between $252-$650/hour for counsel, calculated the lodestar at $3,087,320.00, and asked for a 2.6 multiplier. The trial court limited the multiplier to 2.0, resulting in $6,174,640.00 in fees, plus costs. Volkswagen appealed.…

The recent order in Burkeen v. New Madrid Ambulance Dist., 2013 WL 880079 (E.D. Mo., March 8, 2013) is relatively unremarkable (the defendant didn't really contest preliminary certification), but potentially useful in how it addresses some mechanical aspects of FLSA notice. In this putative FLSA action brought on behalf of EMTs seeking overtime pay, the defendant challenged the scope of employee information it was required to hand over to class counsel, the facilitation of class notice, and the contents of class notice. Judge Limbaugh ruled that: The defendant must hand over putative class members' names, addresses, phone numbers and e mail addresses (useful for contacting employees who have moved), and dates of employment, but not their locations of employment; The defendant must post class notice in break rooms, but need not include class notice in pay stubs (because other forms of contact were adequate); Class notice need not include a…

In City of Maryland Heights v. Trafcone Wireless, Inc., 2013 WL 791866 (E.D. Mo., March 4, 2013), Judge Fleissig declined to exercise CAFA jurisdiction over a case in which a putative class of Missouri municipalities sought declaratory and injunctive relief against a telephone service provider based on its alleged failure to pay certain business licensing taxes. Without reaching the issue of whether the requirements of CAFA removal had been met, the District Court relied on principles of federalism and comity identified in Levin v. Commerce Energy, Inc., 130 S. Ct. 2323, 2331 (2010), to decline to exercise jurisdiction. In Levin, the United States Supreme Court had resolved a circuit split to determine that principles of federalism and comity required federal abstention in certain tax cases beyond the Tax Injunction Act, 28 U.S.C. Section 1341, which prohibits federal courts from issuing injunctions that would enjoin or suspend state taxes, or entertaining…

In Critchfield Physical Therapy, P.C., v. Techhealth, Inc., 2013 WL 791860 (E.D. Mo., March 4, 2013), Judge Fleissig split the difference in this class discovery dispute. Plaintiffs in this putative TCPA class action had moved to compel both the production of full, unredacted lists of fax recipients (including names, addresses, and contact information) in their native format, as well as mirror images of the Defendant's hard drives. The District Court ordered production of the unredacted fax recipient lists subject to a mutually agreeable protective order, reasoning that this information was not only relevant to the merits issue of whether a prior business relationship existed, but also to the class issue of whether all class members were similarly situated with the plaintiff with respect to this defense (i.e., presumably typicality and predominance). And though the District Court declined to order the Defendant to produce a mirror of its hard drives at…

In Grant v. Convergys Corp., 2013 WL 781898 (E.D. Mo., March 1, 2013), Judge Jackson declined to enforce a class action waiver contained in an employment application because it eliminated the employees' right to engage in collective and class litigation, which is protected concerted activity under Section 7 of the NLRA. In this case, the plaintiff sought to prosecute an FLSA collective action and a MMWL claim under Fed. R. Civ. P. 23. The Defendant moved to strike the class allegations based on the following language contained in the putative class representative's employment application: I further agree that I will pursue any claim or lawsuit relating to my employment with Con-vergys (or any of its subsidiaries or related enti-ties) as an individual, and will not lead, join, or serve as a member of a class or group of persons bringing such a claim or lawsuit. Prior to filing this suit,…

In Hull v. Viega, Inc., 2013 WL 759376 (D. Kan., Feb. 27, 2013), Judge Robinson found herself addressing more questions than she was able to answer. One question she did answer was the timeliness of the Defendants' Motion to Strike the class allegations. This putative class action asserted claims on behalf of owners of homes and buildings with Defendants' brass fittings, and those who had paid for repairs or damages caused by these allegedly defective brass fittings, seeking damages under various states' deceptive trade practices acts, as well as under various common law claims. Defendants raised twenty questions in their Motion to Dismiss, which the Court described as a "scorched earth approach" that was both "multi-layered" and "dismissive" in that it required the Court to independently research various nuances of Nevada law. Defendants' Reply also incorporated rulings and raised new issues from a recent order in parallel action pending in…

The United States Supreme Court’s opinion in Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, 2013 WL 691001 (U.S., Feb. 27, 2013), presents a fascinating theoretical dilemma, but one with limited application beyond securities law.  Justice Scalia’s assertion in his dissent that Justice Ginsberg’s majority opinion expands the consequences of the Basic decision from “regrettable” to “arguably disastrous” may be an overstatement beyond the context of securities law.  The issue in this case was whether the proponent of certifying a securities class action under § 10(b) of the SEC Act of 1934 and SEC Rule 10b-5 is required to prove the element of materiality at the class certification stage.  The majority held that it did not, because materiality, while an element of the fraud on the market theory applicable to securities claims, was a merits issue.  This is of course not surprising, as courts have long been warned away…

The defendant in this case got an unpleasant valentine from Judge Kays when he granted the plaintiff class’s motion to enforce the class settlement, despite the Defendant’s assertion there was no settlement.  In July 2012 the parties had informed the Court that they had agreed to settle this putative FLSA class action and were working on finalizing the agreement.  For the next two months, Plaintiffs continued to inform the Court that they had settled the case, while the Defendant failed to respond to the Court’s requests for a status update – never a good practice – until in November it informed the Court that the parties had reached an impasse.  Plaintiffs disagreed, claimed they did indeed have a deal, and moved to enforce it. Defendant Health Systems Inc. identified three sticking points: the virtual settlement fund and calculation of class attorneys’ fees; the scope of class notice; and the scope…

In this case, Judge Murguia made it clear that a plaintiff seeking to certify a FLSA class need not plead either the number of hours worked, or the amount of uncompensated overtime, so long as the complaint makes clear from the context the grounds upon which the claim rests.  Noting a split in the federal courts on this issue, Judge Murguia denied a motion to dismiss and held that Rule 8(a) was satisfied without any particular quantification so long as the complaint in issue made clear that the alleged FLSA violation was based on requiring the putative class representative and the class to perform certain tasks before and after their shifts without compensation.

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