Posts By Andrew Carpenter

Under the “careful what you ask for” category, Judge Gaitan faced an incongruous situation in this wage and hour class action brought against Farmland Foods.   In an FLSA and MMWL class that had been filed in 2010 and certified a year ago, Plaintiffs moved prevent Farmland from changing the very “doffing and donning “ policies it was challenging.  Specifically, having learned from Farmland’s employees that certain policy changes were being implemented, class counsel sought an evidence preservation order enjoining Farmland from changing its employment policies, and sought an order granting class counsel video access at any time within a prescribed 30-day window to observe and document these employment activities.   Plaintiffs argued that a preservation order was necessary to avoid the “irreparable injury” that would occur from what it termed “serial changes mid-litigation to its operational and compensation policies . . . and to allow the Court to render effective relief…

In a brief, but useful order, Judge Fleissig denied a motion to quash a subpoena and for sanctions asserted by counsel characterized as a “professional objector.”   Class counsel for a class action pending in the United States District Court for the Central District of California had served a subpoena on the Law Office of Jonathan E. Fortman, LLC, which represented an objector to the proposed class settlement.  The subpoena instructed Fortman/Movant to attend a deposition and produce documents related to: 1) The filing of the objection in the underlying action; (2) Any objections filed in state or federal court by Movant to other class action settlements; (3) Any fee sharing arrangements between Movant and its clients in relation to the current and other objections; and (4) Any settlements or payouts Movant received in return for withdrawing a client's objection or appeal. Fortman asserted “outrage,” moved to quash, and sought fees…

In an interesting order, Judge Jackson granted defendant Office Depot’s motion to dismiss the class allegations in a putative class action brought under the TCPA, 42 U.S.C. § 227, alleging the transmission of unsolicited faxes.  Judge Jackson shrugged aside Plaintiff Lindsay Transmission’s protest that the motion to dismiss prior to class discovery was premature, citing Rule 23(c)(1)(A)’s directive to determine the propriety of class certification “at an early practicable time.”   This is of course consistent with the increasing number of courts that have expressed a willingness to dismiss class allegations at an early stage, and the Court may well have been influenced by Office Depot’s affidavit explaining that Lindsay Transmission’s initial nationwide discovery requests would have required more than 2,000 manager hours to interview 1,132 store managers in 1,111 retail stores, a truly expensive fishing expedition. Instead, the District Court mooted the onerous discovery requests by striking the class allegations…

In Coulter v. Anadarko Petroleum Corp., 2013 WL 135664 (Kan, Jan. 11, 2013), the Kansas Supreme Court closed the book on nearly fifteen years of oil and gas lease class litigation and provided some helpful guidance on how Kansas courts will evaluate the adequacy of class counsel and the fairness and adequacy of class action settlements.  This class action was brought in 1998 by owners of mineral interests in lands leased by APC principally, and alleged that APC had wrongfully allocated production and marketing costs against royalty payments in violation its contractual obligation to produce gas at its own expense.  After a bench trial and submission of proposed findings of fact and conclusions of law by both sides in 2002, the case sat with no ruling for years.  In 2008, after moving to recuse the judge and receiving no ruling on that motion, the parties took matter into their own…

In an opinion paralleling that in Anadarko, another lengthy class action came to (nearly) rest on the other side of the border in Doyle v. Fluor Corp., 2013 WL 150807 (E.D. Mo. Jan. 15, 2013).  That opinion marks the resolution of the protracted Doe Run smelter property damage litigation, and involved the claims of some 700 surrounding current and former property owners whose properties were contaminated by elevated levels of lead.  After a decade of litigation, the case reached resolution in 2012 whereby the class agreed to release all property-related claims in exchange for $55,000,000.00.  On the eve of final approval, a group of objectors composed of twenty-four former property owners and four current property owners moved to intervene and challenge the settlement, asserting that the notice scheme was inadequate and the allocation plan unfair.  The trial court denied their objections and approved the class settlement. On appeal, Judge Ahrens,…

This decision is a useful reminder of how to control potentially expensive and protracted appeals of class settlements by class members who are either genuinely disgruntled or seeking additional leverage for financial reasons.  In this case, the settling defendant built in a provision requiring class members who wished to appeal the class settlement to put their money where their mouth was in terms of a robust appeal bond: Paragraph 5.3 of the Settlement Agreement approved by the court provides: Any Class Member wishing to remain a Class Member, but objecting to any part of the Settlement can do so only as set forth in the Class Notice attached as Exhibit “C”. Because any appeal by an objecting Class Member would delay the payment under the Settlement, each Class Member that appeals agrees to put up a cash bond to be set by the district court sufficient to reimburse Class Counsel's…

Going deeper into the post-Concepcion discussion of what arbitration agreements containing class action waivers are enforceable and which are not, Judge Whipple and the Western District of Missouri weigh in with a well-reasoned analysis of another consumer arbitration agreement in another cellular phone contract in Davis v. Sprint Nextel Corp., 2012 WL 5904327 (W.D. Mo. Nov. 26, 2012). As you might recall, the United States Supreme Court in Concepcion forbade the nullification of arbitration agreements simply because they eliminated classwide arbitration.    As you may also recall, the Missouri Supreme Court recognized this new complication in Brewer and Robinson, and grappled with the question of whether the particular arbitration agreements at issue in those cases were in fact unenforceable as unconscionable under generally applicable contract defenses as defined by Missouri law. Based on the Missouri Supreme Court's directive in Brewer, Judge Whipple analyzed the unconscionability issue in terms of its impact on…

Are class action arbitration waiver provisions enforceable under Missouri law?  In other words, can a company contract away a consumer's right to proceed in arbitration on a classwide basis?  In AT&T Mobility LLC. v. Concepcion, 131 S. Ct. 1740 (2011), the United States Supreme Court severely limited the ability of states to declare such class arbitration waivers unenforceable as contrary to public policy.  Writing for the majority, Justice Scalia found that the Federal Arbitration Act preempts California's judicial rule - the Discover Bank Rule -- which classifies most consumer class action arbitration waivers as unconscionable.  Because the purpose of the FAA is to ensure the enforceability of arbitration agreements according to their terms, the FAA's savings clause permits states to invalidate consumer class action arbitration waivers only by "generally accepted contract defenses, such as fraud, duress, or unconscionabilty," but not by defenses applicable only "because arbitration is at issue."  It's important to…

It appears not, at least not in the Western District of Missouri (or really anywhere else).  In Resurgent Capital Services v. Thomason, 2012 WL 5398189 (Nov. 5, 2012, W.D. Mo), the plaintiff in a debt collection case attempted exactly that when the defendant counterclaimed with a request to certify a class under the Fair Debt Collection Act.  Judge Smith remanded the case after an efficient analysis, relying on the plain language of CAFA itself (28 U.S.C. § 1441(a)) that limits removal to “any defendant” and finding nothing in CAFA’s legislative history indicating Congress had intended to alter the traditional rule that a counterclaim defendant may not remove a case to federal court.  As Judge Smith noted, his conclusion was consistent with those of other federal courts addressing the same issue.  So if you want to be in federal court, don’t wait for the counterclaim, even under CAFA.

In Ingersoll v. Farmland Foods, Inc., 2012 WL 546100 (Nov. 7, 2012 W.D. Mo.), the Western District clarified the issue of whether defense counsel may communicate with a member of a certified class who is also representing himself pro se.  In that case, one of the named plaintiffs in a putative FLSA and MMWL class had ceased communicating with class counsel, who had then moved for and been granted leave to withdraw as his counsel.  The Court declared that the recalcitrant class representative, Mr. Truitt, would be expected to proceed pro se.  Following certification of the class, Farmland’s counsel contacted Mr. Truitt, who indicated he no longer wished to pursue his claims. After Mr. Truitt signed a Stipulation of Dismissal, class counsel asserted that defense counsel’s contacts were prohibited by Missouri’s rules of ethics and the dismissal was invalid.  Judge Gaitan disagreed, finding that Fed. R. Civ. P 23(e) did…

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